IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3982 of 2010(O)
1. SHEEBA,W/O.THAYYIL VEETTIL RAJU,
... Petitioner
Vs
1. MARY,W/O.PALATHINGAL JACOB,KATTOOR
... Respondent
2. PAULY @ JACOB,S/O.THEKKINIYATH ANTONY,
For Petitioner :SRI.TOM JOSE
For Respondent :SRI.BABU CHERUKARA
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :07/09/2010
O R D E R
THOMAS P JOSEPH, J.
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W.P.(C) NO.3982 OF 2010
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Dated this the 7th day of September, 2010.
JUDGMENT
This writ petition is in challenge of Ext.P9, order dated 10-07-2009
on I.A.No.1692 of 2009 in O.S.No.587 of 2006 of the court of learned
Munsiff, Iringalakuda. Respondent No.1 filed the suit initially against
respondent No.2 (defendant No.1) for a decree for prohibitory injunction
to restrain respondent No.2 from obstructing use of plaint B schedule
way. Advocate Commissioner inspected the property and submitted
report and sketch. Advocate commissioner reported existence of the
disputed pathway and stated that she could not find any other alternative
pathway for access to plaint A schedule belonging to respondent
No.1/plaintiff. While so, respondent No.2 assigned a portion of her
property to petitioner who was impleaded additional defendant No.2 some
time in the year 2008. That was followed by petitioner/additional
defendant No.2 filing I.A.No.1692 of 2009 to appoint an Advocate
Commissioner. According to the petitioner, there is an alternative
pathway for access to the property of respondent No.1. She stated that
disputed plaint B schedule passes through her courtyard and one has to
gain access through her gate. She also claimed that there are several
improvements in the portion of her property described by respondent
No.1 has B schedule way. To note the above matters petitioner filed
W.P.(C) NO.3982 OF 2010 2
I.A.No.1692 of 2009. That application was resisted by respondent No.1
mainly on the ground that advocate commissioner has already reported
existence of the disputed B schedule way and hence, a further
commission is not required. Learned Munsiff accepted the objection and
dismissed I.A.No.1692 of 2009 as per Ext.P9, order. That order is under
challenge. Learned counsel for petitioner contends that she was
impleaded in the suit only after about two years of her acquiring a portion
of the property belonging to respondent No.2 and that she had no
occasion to point out to the Advocate Commissioner existence of the
alternative way and other matters she has requested to be ascertained
I.A.No.1692 of 2009. Learned counsel for respondent No.1 in response to
contends that in so far as the required facts are already ascertained
though the Advocate Commissioner unless that report is set aside there
could be no second commission to ascertain the very same facts.
2. No doubt, when a report is obtained as regards existence of the
disputed way so far as that reports stands it is not possible to call for a
second report on the existence of the disputed way. Hence that request
of petitioner cannot be entertained. But, it is possible to depute a second
commission to ascertain matters that are not referred in the earlier report.
Petitioner has a case that respondent No.1 has an alternative way. I have
gone through the copy of the report submitted by the Advocate
Commissioner, Smt.P.A.Ajitha. That report only says that commissioner
was not able to find any alternative pathway. If it is possible for petitioner
W.P.(C) NO.3982 OF 2010 3
to point out the existence of an alternative pathway, there is no reason
why that fact should not be ascertained through the Advocate
Commissioner. Petitioner can also point out to the Advocate
Commissioner whether there are improvements in that part of disputed B
schedule passing through her property and whether, to gain access to the
disputed pathway one has to go through gate of petitioner. On these
matters the request for appointment of commission can be allowed. In the
circumstances, learned Munsiff was not correct and dismissing the
I.A.1692 of 2009 in toto.
Resultantly, this writ petition is allowed in the following lines:
1. I.A.No.1692 of 2009 is allowed in part. Learned Munsiff shall
appoint an Advocate commissioner, if possible the very same
commissioner who submitted the report and sketch to report on the
following facts:
i. Whether there is any alternative access for
respondent No.1 as claimed by petitioner ?
Commissioner may also ascertain so far as possible
through whose property the alleged alternative pathway
passes.
ii. Whether disputed B schedule pathway is
through the courtyard of petitioner and whether access to
that pathway is through the gate in front of the compound
of petitioner.
W.P.(C) NO.3982 OF 2010 4
iii. Whether there are improvements in that part of
disputed B schedule passing through property of
petitioner and if so, its nature and oldness.
The Batta payable to the Commissioner shall be
fixed by the learned Munsiff considering the volume of
work involved.
THOMAS P JOSEPH,JUDGE.
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