IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9023 of 2010(O)
1. MOIDEEN KUTTY, S/O. KIZHAKKAM KUNNATH
... Petitioner
Vs
1. SAIDALAVI, S/O. KIZHAKKAM KUNNATH
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.BHAVADASAN
Dated :18/03/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C) No. 9023 of 2010
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Dated this the 18th day of March, 2010
JUDGMENT
In this petition under Article 227 of the Constitution
of India the petitioner assails Ext.P6 order.
2. Petitioner is the defendant in O.S. No.186 of 2006
on the file of the Munsiff’s Court, Tirur. The suit is filed by
the respondent for setting out a way to his property through
the petitioner’s property. The petitioner filed I.A. No.164 of
2010 for remitting commissioner’s report and sketch dated
8-1-2010. According to him, the Commissioner has gone
wrong in preparing the sketch and in not giving necessary
details. The complaint is that the measurement now made is
not in terms of the survey measurements. Matters also
mentioned in the petition, according to the petitioner, the
Commissioner ought to have verified. According to him, the
W.P.(C) No. 9023/2010 2
court below went wrong in rejecting the prayer for
remitting the commissioner’s report.
3. It appears that the plaintiff claimed a right of way
through the property owned by the defendant who is the
petitioner herein. The defendant disputed the existence of
way and submitted that the plaintiff has no right to use any
portion of his property.
4. The learned counsel for the petitioner invites
attention of this Court to observations made in paragraphs
14, 15 and 16 of the impugned order and it is pointed out
that these observations may cause difficulties and may
prove detrimental to the petitioner at the time of hearing
the suit. So that safeguard needs to be made in that regard.
5. There is substance of the case of the petitioner. But
what ever that be, the petitioner will have an opportunity at
the time of trial to establish that the commissioner’s report
and plan are not acceptable.
6. The court below may not justify the observations
made in paragraphs 14, 15 and 16. However, those
W.P.(C) No. 9023/2010 3
observation can be treated only a tentative for the purpose
of disposing of the E.A.
7. There can be no doubt that these aspects are to be
considered at the time of trial. It will sufficient to give a
direction to the trial court to dispose of the suit
untrammelled by any of the observations made in Ext.P6
order especially in paragraphs 14, 15 and 16.
8. In the result, this petition is disposed of as
follows:-
a) The Munsiff’s Court, Tirur is directed to dispose
of O. S. No.186 of 2006 untrammelled by any of
the observations made in Ext.P6 order, especially
paragraphs 14, 15 and 16, while disposing of I.A.
No.164 of 2010 and based evidence adduced in
the case.
b) The existence of way will be determined on the
basis of evidence adduced on trial.
c) If the petitioner establishes during the trial that
commissioner’s report and plan are not
W.P.(C) No. 9023/2010 4
acceptable, he shall have at liberty to seek fresh
commission report and plan.
P.BHAVADASAN, JUDGE.
mn.