High Court Kerala High Court

St.Thoms Church vs Johny Roy on 9 July, 2008

Kerala High Court
St.Thoms Church vs Johny Roy on 9 July, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 37735 of 2007(P)


1. ST.THOMS CHURCH, RATNAGIRI,
                      ...  Petitioner

                        Vs



1. JOHNY ROY, CHIRAYIL HOUSE,
                       ...       Respondent

2. ANNAKUTTY, W/O.C.S.LUKOSE,  DO.  DO.

3. THOMAS JOSEPH, PERINGATTU HOUSE,

                For Petitioner  :SRI.MATHEW JOHN (K)

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :09/07/2008

 O R D E R
                   M.SASIDHARAN NAMBIAR, J.
                     ...........................................
                   WP(C).No. 37735                 OF 2007
                     ............................................
          DATED THIS THE              9th      DAY OF JULY, 2008

                                JUDGMENT

Petitioner is the first plaintiff in O.S.102 of 2007 on the file

of Munsiff Court, Ettumanoor. Respondents are the defendants.

The suit is for declaration that plaint A schedule property is

entitled to get lateral support from plaint B schedule property by

right of easement by prescription and also for mandatory

injunction. I.A.1104 of 2007 was filed for appointment of an

expert Commission, which was dismissed by the learned Munsiff

under Ext.P5 order. This petition is filed under Article 227 of

Constitution of India, challenging Ext.P5 order.

2. Learned counsel appearing for petitioner was heard.

The argument of the learned counsel is that for establishing the

right of lateral support by prescription claimed by plaintiffs,

report by an expert Commission is necessary and learned

Munsiff was not justified in dismissing the application on the

ground that an Advocate Commissioner has submitted the

report.

3. On hearing the learned counsel and going through

Ext.P5 order, it is clear that learned Munsiff has not considered

W[(C) 37735/2007 2

the application in the proper perspective. When the right of

lateral support by easement of prescription and a mandatory

injunction to remove the structure constructed in plaint B

schedule property is sought, question regarding the burden

caused to the property is relevant. It is for that purpose,

appointment of an expert Commission was sought. The fact that

Advocate Commissioner has submitted a report earlier, showing

the nature of the construction as well as the distance from the

plaint B schedule property may not suffice for resolving the

dispute. In such circumstances, Ext.P5 order is quashed.

Learned Munsiff is directed to appoint an Advocate Commission

as sought for in I.A.1104 of 2007 at the expense of the plaintiff.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-