IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28529 of 2010(O)
1. KODAMANA BALAMANIAMMA, D/O. DEVAKIAMMA,
... Petitioner
Vs
1. POONATHIL RAMAKURUPPU, S/O. P.K.KANARAN
... Respondent
2. KODAMANA PADMINIAMMA, D/O. LAKSHMI
3. KODAMANA SOORYAPRABHA, D/O.
For Petitioner :SRI.NIRMAL. S
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/09/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.C.No.28529 of 2010
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Dated this 16th day of September, 2010
JUDGMENT
Petitioner, who is a defendant in O.S.No.120 of 2008 of the
court of learned Principal Munsiff-I, Kozhikode challenges Ext.P8,
order dismissing I.A.No.1410 of 2008. That was an application
filed by petitioner/defendant to set aside the report and sketch
prepared by the Advocate Commissioner. Respondents claimed
right of easement by way of prescription through plaint C
schedule which according to them passed through plaint B
schedule belonging to the petitioner, for access to plaint A
schedule items which belonged to the respondents. The Advocate
Commissioner submitted report and sketch showing plaint A
schedule items, B schedule and the disputed plaint C schedule.
On the request of petitioner, report was set aside by the learned
Munsiff which came in challenge in this court in W.P.C.No.18530
of 2009. This court set aside the order of learned Munsiff and
remitted the matter for fresh consideration. Thereafter the
Advocate Commissioner was examined as PW1. Learned Munsiff
vide Ext.P8, order declined to remit the report and sketch. Hence
this writ petition. Learned counsel contends that matters
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requested for in his work memo have not been ascertained by the
Advocate Commissioner. It is also stated that matters which are
relevant for consideration and decision of the dispute are not
ascertained by the Advocate Commissioner. These aspects were
not taken into account by learned Munsiff. Learned counsel
contended that order under challenge is liable to be set aside.
2. As I stated, suit is for injunction based on a claim of
easement by way of prescription along disputed plaint C
schedule. According to the respondents and as the Advocate
Commissioner also shows disputed C schedule passes through
almost middle of plaint B schedule. Commissioner has reported
existence of plaint C schedule to the extent he was able to
identify it and regarding the rest of the portion he has stated that
there was no specific demarcation to separate plaint C schedule
from plaint B schedule. Commissioner has also shown plaint A
schedule properties though, item wise it is not specifically shown
in the sketch. In paragraph 3 of the report, Advocate
Commissioner has stated about plaint A schedule items. But in
the sketch plaint A schedule item Nos.1 and 2 are shown as one
compact plot while, A schedule item Nos.3 and 4 are shown as
another compact plot. There is no separation between plaint A
schedule item Nos. 1 and 2 and 3 and 4. Commissioner stated
that he had not measured the property with reference to the
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document of title of respondents but, I must remember that this
is not a suit on title but it is only a suit for injunction based on
right of easement by way of prescription. There is no dispute for
petitioner that plaint A schedule items are now in the possession
and enjoyment of respondents. Hence I am not persuaded to
think that failure of the Advocate Commissioner to measure
plaint A schedule items with reference to the document of title is
in any way fatal to the case or affected decision of the
controversy involved.
3. Another objection raised by petitioner is that oldness
of plaint C schedule has not been ascertained by the Advocate
Commissioner. Regarding that, Advocate Commissioner has
stated that since he found sand spread over the disputed way he
was not able to identify the oldness. If Advocate Commissioner
was not able to identify the oldness, there is no point in remitting
the report and asking him to ascertain the oldness. Parties could
lead other evidence as to the oldness. Yet another objection
raised is that on the side of property of Swarnalatha there is a
way which the Advocate Commissioner has not made mention.
But the Advocate Commissioner has stated that he was not able
to see any such way.
4. Yet another objection is that property of petitioner
lying in taks 1 and 2 were not identified by measurement.
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Regarding that also I may say that the suit is not on title and it is
only for enforcement of right of easement by way of prescription.
I have gone through the report and sketch and the petition filed
by petitioner. Learned Munsiff, referring to the report and
evidence of PW1 has stated that all matters relevant for decision
of the case has been reported by the Advocate Commissioner as
he found at the spot and that remission of the report is not
required. I must also bear in mind that report of the Advocate
Commissioner is not the final verdict in the matter and it is only a
piece of evidence. Parties have the opportunity to adduce
evidence in support of their contention. Unless the refusal to
remit the report has resulted in any failure of justice interference
under Article 227 of the Constitution is not necessary. I do not
find reason to interfere with the impugned order. But I make it
clear that it is open to the petitioner to adduce all his evidence in
support of the contention he has raised.
Writ petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-