IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 OP(C).No. 903 of 2010(O) ------------------------ OS.287/1999 of MUNSIFF COURT, MAVELIKKARA .................... PETITIONER/JUDGMENT DEBTOR: ----------------------------------------------------- SREEKALA,PAYIKKATTU HOUSE,CHUNNAKKARA VILLAGE,ALAPPUZHA DISTRICT. BY ADVS. SRI.M.V.THAMBAN, SRI.R.REJI, SMT.THARA THAMBAN, SRI.B.BIPIN, SMT.REVATHY P.NAIR. RESPONDENT(S): --------------------------- 1. SURESH BABU,AGED 47 YEARS, S/O.GOPINATHAN PILLAI,THEKKAKARETHU HOUSE, KALLIMEL MURI,CHUNAKKARA(PO),690 534,VETTIYAR VILLAGE,ALAPPUZHA DISTRICT. 2. DAMODARAN PILLAI,AGED ABOUT 71 YEARS, KOVOOR HOUSE,KALLUMEL MURI,CHUNAKARA(PO), 690 534,VETTIYAR VILLAGE,ALAPPUZHA DISTRICT. 3. SUMA,AGED ABOUT 43 YEARS, D/O.DAMODHARAN PILLAI,KOVOOR HOUSE, KALLUMEL MURI, VETTIYAR VILLAGE, CHUNAKARA P.O., 690 534, ALAPPUZHA DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.903 of 2010 --------------------------------------- Dated this 29th day of November, 2010 JUDGMENT Additional Defendant No.3 in O.S.No.287 of 2009 of the court of learned Munsiff, Mavelikkara is the petitioner before me challenging Ext.P8, order I.A.No.1581 of 2010 appointing an Advocate Commissioner and Surveyor to measure item Nos.1 to 3 as per resurvey plan and to prepare a plan. Respondent No.1 claimed right, title and possession of plaint schedule item No.1 as per partition deed No.620 of 2004 (as item No.2 in the said document) and contended that on the east of item No.1 it is item No.2 belonging to the petitioner and other defendants where according to respondent No.1 there is an old well (described as item No.3 in plaint B schedule) which was set apart for use of respondent No.1 and his predecessors-in-interest as per partition deed No.1559 of 1954. It is also the contention of respondent No.1 that in between item Nos.1 and 2 there is a PIP canal and for access to item No.2 there is a slab across the said canal. In continuation of that slab there is a way having width of 1½ meters and length of 4 meters. Respondent No.1 claimed prescriptive right of easement over the well referred to above, O.P(C).No.903 of 2010 : 2 : the land adjoining it and the way leading to it. Petitioner filed Ext.P2, written statement contending that there is no such right for respondent No.1 and that predecessors-in-interest of respondent No.1 were given only a license to draw water from the well. That license was revoked. Thereafter item No.2 was purchased by petitioner. He denied the existence of any such way. In the trial court Advocate Commissioner inspected the property and submitted Ext.P3, report and Ext.P4, rough sketch regarding item Nos.1 and 2. Learned Munsiff framed Ext.P5, issues (which takes in the issue regarding right of prescriptive easement claimed by respondent No.1). Then came Ext.P6, application for appointment of a survey commission. To that application petitioner preferred Ext.P7, objection. Learned Munsiff allowed the application by Ext.P8, order and deputed an Advocate Commissioner to measure the property with the assistance of a Surveyor. It is contended by learned counsel that in the nature of relief claimed (prescriptive easement) and the issues framed a survey commission is not required and that attempt of respondent No.1 is to lay hands on the excess land belonging to petitioner in the resurvey. 2. It is seen from Ext.P6, application and averments in the plaint that according to respondent No.1, the well was set O.P(C).No.903 of 2010 : 3 : apart for public use as per partition deed No.1557 of 1954 and the right of easement claimed by respondent No.1 extended to 3.2 Ares (8cents in old survey. 448/2, 448/1A and 448/2B (RS 51/13) where the well is situated and also over the way leading to that. It is in the light of the said claim that learned Munsiff has allowed Ext.P6, application and appointed a survey commission. What is claimed by respondent No.1 is a right of easement over the area referred to in the plaint and as claimed by respondent No.1, as per partition deed No.1557 of 1954. It is to ascertain the area over which respondent No.1 is claiming right of easement by prescription that survey commission was appointed. Petitioner is in no way prejudiced by the said order. In the nature of the claim set up by respondent No.1 and the extent of land over which right of easement is claimed I do not find reason to interfere. This petition is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-