IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8934 of 2010(O)
1. JOSE THOMAS, S/O.THOMAS, AGED 62 YEARS,
... Petitioner
2. JIJO, S/O.JOSE, AGED 22 YEARS,
Vs
1. ALEYKUTTY,W/O.LATE SKARIA, AGED 59
... Respondent
2. PEETHAMBARAN,S/O.NARAYANAN, AGED 63
3. SIJI,S/O.LATE SKARIA,
4. REJI,S/O.LATE SKARIA,
5. SIJA,D/O.LATE SKARIA,
For Petitioner :SRI.ALEXANDER JOSEPH
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :17/03/2010
O R D E R
P. BHAVADASAN, J
---------------------------
W.P.C.No.8934 OF 2010
---------------------------------------------
Dated this the 17th day of March, 2010
J U D G M E N T
Aggrieved by the order dated 17.2.2010 in I.A.No.341/09 in
O.S.63/06 of Sub Court Muvattupuzha, the petitioners before the
court below have come up in this proceedings.
2. The petitioners are the defendants in O.S.63/06. The suit
was one for permanent prohibitory injunction. The dispute relates
to a path way, which s shown in C schedule. Along with the suit a
Commission Application was filed and it was allowed. The
commissioner has filed a report and rough sketch.
3. Long thereafter, petitioners filed present I.A. They want a
detailed report with survey sketch which according to them was
absolutely necessary for the proper determination of the issue
involved in the case. The petition was opposed by the
respondents before the court below. The court below on an
evaluation of the materials, came to a conclusion that the prayer
made by the petitioner is quite unjustified and unnecessary. The
petition is dismissed accordingly.
WPC.8934/10 2
4. Th learned counsel appearing for the petitioner pointed
out that the definite stand taken by the plaintiff that the path way
was made/widened using a portion of his property, and therefore
he has right to use the way. Petitioner’s counsel pointed out that
claim is wrong and no portion of the property owned by the
plaintiff has been used for widening the way. In order to prove
the same measurement of the property of the plaintiff and
pathway are necessary. A proper report sketch and plan have to
be obtained.
5. The above contention is without merits. If plaintiff has a
case that he has surrendered a portion of his property to widen
the pathway he has to establish the said fact. It is not necessary
for the defendants to take up that responsibility to establish that
the plaintiff has not given a portion of his way. The lower court
has noticed that the particulars and details of the way and
properties are ascertainable from the available commissioner’s
report and plan. The court below found that further report and
survey sketch are not necessary.
6. The claim of the petitioners who are defendants i the suit
is that they are entitled to use ‘C’ schedule pathway by way of
easement by grant. That being the position the view of the court
WPC.8934/10 3
below that survey measurement, sketch and plan are
unnecessary is perfectly justified. There is no reason to interfere
with the order.
7. However, it is made clear that if the lower court, during
trial feels that the available report and plan are not helpful and
sufficient the petitioners will be at liberty to move the court below
for appropriate orders.
With the above observation this petition stands
dismissed.
P. BHAVADASAN, JUDGE.
Sou.