IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25530 of 2010(O)
1. APPU, AGED 68, S/O.ITTAMAL,
... Petitioner
Vs
1. BABURAJ, S/O.KUTTAPU, PANDIRIKAL,
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.MILLU DANDAPANI
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/10/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P(C).No.25530 of 2010
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Dated this 19th day of October, 2010
JUDGMENT
Defendant No.2 in O.S.No.2590 of 2008 of the court of
learned Additional Munsiff-II, Thrissur is the petitioner before me,
challenging Ext.P4, order refusing to set aside the report and
sketch (Exts.P2 and P2(a)) prepared by the Advocate
Commissioner. Respondent/plaintiff sued petitioner and another
for a declaration of right of easement by way of necessity over
plaint B schedule claiming that plaint B schedule is the only access
to plaint A schedule belonging to the respondent and for a decree
for mandatory injunction to direct petitioner and defendant No.1 to
remove the obstruction caused by them. The Advocate
Commissioner inspected property and submitted report and sketch
(Exts.P2 and P2(a)). Petitioner preferred objection claiming that
there is no such way as described in plaint B schedule or, as
reported by the Advocate Commissioner and that the Advocate
Commissioner has not noted existence of an alternative way
available to the respondent for access to plaint A schedule. It is
contended by learned counsel for petitioner that Advocate
Commissioner has not reported existence of the buildings in plaint
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B schedule and that the intervening wall of the temple compound
was taken as the outer wall of temple compound. The request
sought by petitioner to set aside the report and sketch was opposed
by the respondent. Learned Munsiff passed Ext.P4, order refusing
to set aside the report and sketch observing that petitioner failed to
prove that the facts reported by the Advocate Commissioner are
totally false, if at all there was any shortcoming in the report,
petitioner could have requested the Court either to remit the report
and sketch or to direct the Commissioner to once again inspect the
property for reporting additional facts. That order is under
challenge. Learned counsel for petitioner argued that according to
the respondent, plaint B schedule is puramboke land and that there
are buildings in the said property. It is the further contention of
learned counsel that existence of alternative way for access to
plaint A schedule was not reported by the Advocate Commissioner.
Learned Senior Advocate appearing for respondent/plaintiff
contended that opportunities available to the petitioner to get
additional facts if any, noted by the Advocate Commissioner were
not availed and that I.A.No.10286 of 2008 filed by petitioner for
review of the order on I.A.No.8426 of 2008 was dismissed for the
reason that petitioner did not take necessary steps on time.
W.P(C).No. 25530 of 2010
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2. Claim of respondent is a right of easement by way of
necessity along plaint B schedule. Certainly, question whether
respondent has any other means of access to plaint A schedule
which he can use as of right is relevant for consideration. It is true
that in Ext.P2, report the Advocate Commissioner has reported that
plaint B schedule is the only access to the plaint A schedule but,
that of course is controverted by the petitioner who asserts that
there is alternative access to the plaint A schedule. Advocate
Commissioner has not reported whether plaint B schedule is
puramboke as claimed by the respondent. It is in these
circumstances learned Munsiff observed that the proper course
open to the petitioner was not to seek to set aside Exts.P2 and P2
(a) but to request the court to remit the report or, appoint an
Advocate Commissioner to report on matters additionally required
by petitioner. I must bear in mind that it is not as if learned
Munsiff foreclosed right of petitioner to get additional facts
pleaded by petitioner to be ascertained. The request to set aside
the report and sketch was disallowed. Having heard learned
counsel for petitioner and learned Senior Advocate appearing for
respondent and gone through the order under challenge, I do not
find reason to interfere with the order refusing to set aside Exts.P2
and P2(a).
W.P(C).No. 25530 of 2010
: 4 :
3. Then the question is whether petitioner should be
permitted to get additional facts as claimed by him noted by the
Advocate Commissioner. Petitioner has a contention that there are
several structures in plaint B schedule and that respondent has
alternative access to the plaint A schedule. Respondent has a
contention that plaint B schedule is puramboke land. These
aspects can be ascertained by remitting the report and sketch so
that the Commissioner could ascertain whether any portion of
plaint B schedule is puramboke land with the help of a qualified
Surveyor. Petitioner can also get it ascertained through the
Commissioner whether there are structures in plaint B schedule
and whether respondent has alternative access to the plaint A
schedule, of course at the cost of petitioner. Learned Senior
Advocate appearing for respondent has stated that even plaint B
schedule as reported by the Advocate Commissioner has been
blocked by the petitioner and respondent is left with no access to
the plaint A schedule. It is submitted that an application for
temporary/mandatory injunction filed by the respondent is pending
in the trial court and coming up for hearing on 30-10-2010. That
application was not taken up so far on account of pendancy of this
petition in this court. I make it clear that it is open to the
respondent to request learned Munsiff to take up that application
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for temporary/mandatory injunction for consideration without
waiting for the additional report and plan if such a course is
possible.
Resultantly this petition is allowed in the following lines:
(i) While holding that there is no reason to
interfere with the order of learned Munsiff refusing
to set aside Exts.P2 and P2(a). Learned Munsiff is
directed to remit the report and sketch to the
Advocate Commissioner to ascertain the following
matters:-
(a) Whether, any portion of plaint
B schedule takes in puramboke land?
(b) Whether there are structures
in plaint B schedule, if so details and
location?
(c) Whether there is any
alternative way to the respondent for
access to plaint A schedule and if so, its
details?
(ii) Learned Munsiff may appoint a
qualified surveyor to assist the Advocate
Commissioner in ascertaining whether plaint B
schedule takes in puramboke land.
(iv) The batta payable to the Advocate
Commissioner and Surveyor shall be paid by
petitioner as ordered by the learned Munsiff within
three weeks from this day.
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(v) Learned Munsiff shall direct the
Advocate Commissioner and Surveyor to carry out
the work and submit report and plan at the earliest
so that there is no further delay in the matter.
(vi) In case petitioner fails to remit
Commissioner’s batta as ordered by the learned
Munsiff, this writ petition will stand dismissed.
(vii) Parties will be at liberty to prefer their
objection to the report and plan and adduce
evidence in respect of their respective contentions
in the suit in the course of trial.
(THOMAS P JOSEPH, JUDGE)
Sbna/-