IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 3982 of 2010(O) ----------------------- OS.587/2006 of PRL. MUNSIFF COURT, IRINJALAKUDA ...................................... PETITIONER : ----------------- SHEEBA, W/O.THAYYIL VEETTIL RAJU, AGED 34 YEARS, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.TOM JOSE SMT.GEETHA JOB(OZHUKAYIL) RESPONDENT(S): ------------------------ 1. MARY,W/O.PALATHINGAL JACOB,KATTOOR VILLAGE,MUKUNDAPURAM TALUK,NOW R/AT PULLUR DESOM, TRICHUR DISTRICT. 2. PAULY @ JACOB,S/O.THEKKINIYATH ANTONY, KATTOR VILLAGE,MUKUNDAPURAM TALUK, TRICHUR DISTRICT. R1 BY ADV. SRI.BABU CHERUKARA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...2/- WP(C).No. 3982 of 2010 -2- APPENDIX PETITIONERS' EXHIBITS: EXT. P1: SALE DEED NO. 1934/1/2006 OF KATTOOR SUB REGISTRY IN FAVOUR OF PETITIONER EXECUTED BY 2ND RESPONDENT WITH REGARD TO CROSS CLAIM A SCHEDULED PROPERTY. EXT. P2: AGREEMENT DATED 4/11/2006 BETWEEN PETITIONER AND 2ND RESPONDENT WITH REGARD TO PURCHASE OF APPURTENANT LAND. EXT. P3: COPY OF PLAINT IN O.S. 587/2006 DATED ¼/2006, BEFORE THE MUNSIFF'S COURT, IRINJALAKUDA. EXT. P4: COPY OF IMPLEADING PETITION DATED 10/6/2008 PREFERRED BY PLAINTIFF TO IMPLEAD THE PEITIONER AS 2ND DEFENDANT IN O.S. 587/2006. EXT. P5: COPY OF WRITTEN STATEMENT OF PEITIONER/2ND DEFENDANT HAVING COUNTER CLAIM IN O.S.587/2006 DATED 10/10/2008. EXT. P6: AMENDMENT OF PLAINT IN O.S. 587/2006 PREFERRED BY PLAINTIFF DATED 26/2/2009. EXT. P7: CROSS CLAIM UNDER ORDER VIII (A) PREFERRED BY PEITIONER/2ND DEFENDANT AGAINST PLAINTIFF AND 1ST DEFENDANT DATED 01/07/2009. EXT. P8: COPY OF COMMISSION APPLICATION I.A. 1692/2009 IN O.S. 587/2006 DATED 30/6/2009 OF THE PETITIONER. EXT. P9: DISMISSAL ORDER OF THE HON'BLE PRINCIPAL MUNSIFF IN I.A. 1692/2009 IN O.S. 587/2006 DATED 10/7/2009. EXT. P10:COPY OF I.A. 1750/2009 IN O.S. 587/2006 FOR RECEPTION OF CROSS CLAIM DATED 2/7/2009. EXT. P11:COPY OF THE OBJECTION IN I.A. 1750/2009 IN O.S. 587/2006 PREFERRED BY THE 1ST RESPONDENT/PLAINTIFF DATED 4/7/2009. EXT. P12:ORDER OF THE HON'BLE MUNSIFF'S COURT, IRINJALAKUDA IN I.A. 1750/2009 IN O.S. 587/2006 DISMISSING THE APPLICATION FOR RECEPTION OF THE CROSS CLAIM. RESPONDENTS' EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn THOMAS P JOSEPH, J. --------------------------------------- W.P.(C) NO.3982 OF 2010 -------------------------------------------------- Dated this the 7th day of September, 2010. JUDGMENT This writ petition is in challenge of Ext.P9, order dated 10-07-2009 on I.A.No.1692 of 2009 in O.S.No.587 of 2006 of the court of learned Munsiff, Iringalakuda. Respondent No.1 filed the suit initially against respondent No.2 (defendant No.1) for a decree for prohibitory injunction to restrain respondent No.2 from obstructing use of plaint B schedule way. Advocate Commissioner inspected the property and submitted report and sketch. Advocate commissioner reported existence of the disputed pathway and stated that she could not find any other alternative pathway for access to plaint A schedule belonging to respondent No.1/plaintiff. While so, respondent No.2 assigned a portion of her property to petitioner who was impleaded additional defendant No.2 some time in the year 2008. That was followed by petitioner/additional defendant No.2 filing I.A.No.1692 of 2009 to appoint an Advocate Commissioner. According to the petitioner, there is an alternative pathway for access to the property of respondent No.1. She stated that disputed plaint B schedule passes through her courtyard and one has to gain access through her gate. She also claimed that there are several improvements in the portion of her property described by respondent No.1 has B schedule way. To note the above matters petitioner filed W.P.(C) NO.3982 OF 2010 2 I.A.No.1692 of 2009. That application was resisted by respondent No.1 mainly on the ground that advocate commissioner has already reported existence of the disputed B schedule way and hence, a further commission is not required. Learned Munsiff accepted the objection and dismissed I.A.No.1692 of 2009 as per Ext.P9, order. That order is under challenge. Learned counsel for petitioner contends that she was impleaded in the suit only after about two years of her acquiring a portion of the property belonging to respondent No.2 and that she had no occasion to point out to the Advocate Commissioner existence of the alternative way and other matters she has requested to be ascertained I.A.No.1692 of 2009. Learned counsel for respondent No.1 in response to contends that in so far as the required facts are already ascertained though the Advocate Commissioner unless that report is set aside there could be no second commission to ascertain the very same facts. 2. No doubt, when a report is obtained as regards existence of the disputed way so far as that reports stands it is not possible to call for a second report on the existence of the disputed way. Hence that request of petitioner cannot be entertained. But, it is possible to depute a second commission to ascertain matters that are not referred in the earlier report. Petitioner has a case that respondent No.1 has an alternative way. I have gone through the copy of the report submitted by the Advocate Commissioner, Smt.P.A.Ajitha. That report only says that commissioner was not able to find any alternative pathway. If it is possible for petitioner W.P.(C) NO.3982 OF 2010 3 to point out the existence of an alternative pathway, there is no reason why that fact should not be ascertained through the Advocate Commissioner. Petitioner can also point out to the Advocate Commissioner whether there are improvements in that part of disputed B schedule passing through her property and whether, to gain access to the disputed pathway one has to go through gate of petitioner. On these matters the request for appointment of commission can be allowed. In the circumstances, learned Munsiff was not correct and dismissing the I.A.1692 of 2009 in toto. Resultantly, this writ petition is allowed in the following lines: 1. I.A.No.1692 of 2009 is allowed in part. Learned Munsiff shall appoint an Advocate commissioner, if possible the very same commissioner who submitted the report and sketch to report on the following facts: i. Whether there is any alternative access for respondent No.1 as claimed by petitioner ? Commissioner may also ascertain so far as possible through whose property the alleged alternative pathway passes. ii. Whether disputed B schedule pathway is through the courtyard of petitioner and whether access to that pathway is through the gate in front of the compound of petitioner. W.P.(C) NO.3982 OF 2010 4 iii. Whether there are improvements in that part of disputed B schedule passing through property of petitioner and if so, its nature and oldness. The Batta payable to the Commissioner shall be fixed by the learned Munsiff considering the volume of work involved. THOMAS P JOSEPH,JUDGE. pm