Aleyamma George vs Kurian Sebastian @ Pappachan on 11 July, 2008

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 6347 of 2008(E)


1. ALEYAMMA GEORGE, AGED 76 YEARS,
                      ...  Petitioner

                        Vs



1. KURIAN SEBASTIAN @ PAPPACHAN,
                       ...       Respondent

2. KUNJOONJU, S/O. PAPPU,

3. JISHA ALPHONSA THOMAS,

                For Petitioner  :SRI.MVS.NAMBOOTHIRY

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :11/07/2008

 O R D E R
                 M. SASIDHARAN NAMBIAR, J.
                   ------------------------------------------
                   W.P(C). NO. 6347 OF 2008
                   ------------------------------------------
               Dated this the 11th day of July, 2008


                              JUDGMENT

Notice was sent to second respondent as early as

17.3.2008. It is not returned. As notice is not returned, it is

deemed to have been served. Service declared completed.

2. Petitioner is the plaintiff and respondents the

defendants in O.S. 76 of 2006 on the file of Munsiff Court,

Changanacherry. I.A. 252 of 2008 was filed for appointment of a

commission. Under Ext.P4 order learned Munsiff dismissed the

petition. This petition is filed under Article 227 of Constitution

of India to challenge Ext.P4 order.

3. Learned counsel appearing for petitioner was heard.

Under Ext.P4 order learned Munsiff dismissed the application

finding that lateral support will be available only if the property

of petitioner is retained in its natural condition and a wall was

constructed in the boundary burdening the property and thereby

the natural condition of the property changed and in such

circumstances there is no necessity to appoint an expert

commission. True, as far as lateral support is considered, it can

WPC6347/08 2

be claimed only if the property is retained in the natural

condition. But, a right on easement by prescription could be

claimed in respect of the property burdened by putting

structures provided the conditions provided under Easement Act

are satisfied. Learned Munsiff was not justified to shut out the

relevant evidence by dismissing the application. Question

whether petitioner is entitled to the right claimed is to be

decided after recording the evidence. In such circumstances,

Ext.P4 order is quashed. Learned Munsiff is directed to appoint

the expert commission as sought for in I.A. 252 of 2008.

Writ petition is disposed of as above.

M. SASIDHARAN NAMBIAR,
JUDGE

Okb/-