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/-