IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).NO. 28377 OF 2010(O) ---------------------------------------- OS.366/2009 OF M.C.,VADAKKANCHERRY PETITIONER(S): --------------------- 1. SEBASTIAN, S/O.MADATHILTHAZHE JOSEPH, ENKAKAD VILLAGE, MARATHKUNNU DESOM, TALAPPILLY TALUK. 2. THRESSIAMMA, W/O.NJONGINIYIL PHILIPPOSE, MARATHUKUNNU DESOM. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): ------------------------ 1. ANTHONY, S/O.CHEENATH JOSEPH, ENKAKAD VILLAGE, MARATHKUNNU DESOM, TALAPPILLY TALUK-680001. 2. DEVAKY, W/O.VIJAYAN, MARATHKUNNU DESOM, ENKAKAD VILLAGE, TALAPPILLY TALUK-680001. 3. SUBRAMANIAN, S/O.SULOCHANA, MARATHKUNNU DESOM, ENKAKAD VILLAGE, TALAPPILLY TALUK-680001. 4. MOHAMMED, S/O.KOZHITHARAYIL VAPPUTTY, MARATHKUNNU DESOM, ENKAKAD VILLAGE, TALAPPILLY TALUK-680001. 5. SHABNAKHAN, W/O.KALLUVETTUKUZHYPARAMBIL, SULAIMANKHAN, MARATHKUNNU DESOM, ENKAKAD VILLAGE, TALAPPILLY TALUK-680001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.28377 of 2010 ==================================== Dated this the 14th day of September, 2010 J U D G M E N T In a suit for injunction against trespass petitioners raised a counter claim based on a plea of easement. Advocate Commissioner inspected the property and submitted report and sketch showing the disputed pathway (over which petitioners made a counter claim). Petitioners were not satisfied with the report and filed an application to appoint the Taluk Surveyor to measure the property and identify the same. That application was resisted by the contesting respondents. Learned Munsiff vide the impugned order refused to allow measurement of the property through the Tahsildar but reserved right of petitioners if they so choose to get disputed property further identified by local inspection through the Advocate Commissioner. That order is under challenge in this Writ Petition. Learned counsel for petitioners contends that to avoid unnecessary disputes in executing the decree identification of the property through the Taluk Surveyor with respect to survey number is necessary. 2. In the counter claim disputed way is described as B schedule having length of 50 metres and width of 5 metres W.P(C) No.28377 of 2010 -: 2 :- admittedly through the plaint schedule property. Advocate Commissioner has reported in Ext.P3 that he found the disputed pathway having a length of 100 metres and width of 5 metres. Request made by petitioners before the court below is to appoint a Taluk Surveyor to measure the property for proper identification so that disputes in execution of the decree could be avoided. That was not upheld by the learned Munsiff. Learned Munsiff reserved right of petitioners to seek further local inspection if further identification of the disputed pathway or property is required. There is no dispute for the petitioners that the disputed pathway passes through the suit property. In a claim of easement by way of prescription measurement of the property with the assistance of Tahsildar is not called for. Having regard to the facts and circumstances of the case and since the right to get the disputed way and property further identified through local inspection has been reserved by the learned Munsiff, I do not finding reason to interfere with the impugned order. Writ Petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. vsv