IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 491 of 2010(O)
1. THAI VALAPPIL NARAYANAN,AGED 65 YEARS,
... Petitioner
Vs
1. KULANGARA SHANTHAN,AGED 46 YEARS,
... Respondent
For Petitioner :SRI.V.C.JAMES
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/10/2010
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
O.P.(C) No.491 of 2010
--------------------------------------
Dated this the 29th day of October, 2010.
JUDGMENT
Plaintiff in O.S.No.78 of 2009 of the court of learned Munsiff, Payyannur
challenges Ext.P7, order refusing to appoint a survey commission to identify the
suit property. Suit is for prohibitory injunction to restrain respondent from
demolishing boundaries, trespassing into or constructing road in the suit
property. Respondent contended that she has a prescriptive right of easement
through the way in the suit property and ofcourse, she also disputed identity of
the property. In the light of dispute regarding identity of the suit property
petitioner filed I.A.No.1057 of 2010 to appoint a survey commission to identify
the property. That application was dismissed by the learned Munsiff observing
that no issue regarding identity of property is framed, dispute is regarding right
of easement by prescription and hence a survey commission is not necessary.
Learned counsel for petitioner contends that identification of suit property is
necessary to protect the interest of petitioner. Since the dispute regarding
identity of suit property is raised by respondent it was necessary to get the
property identified by a survey commission.
2. I am unable to agree with that argument of learned counsel. It is
seen that the suit is merely for a decree for prohibitory injunction against
respondent demolishing boundaries, trespassing into it or constructing a new
road along the suit property. Court fee for the said purpose is paid under Section
27(c) of the Court Fees and Suits Valuation Act. In a suit for injunction except
OP(C) No.491/2010
2
for the purpose of proving possession if absolutely necessary, issue regarding
title is irrelevant. Hence it is not necessary in a suit for injunction of this nature
to raise an issue regarding title. Advocate Commissioner has inspected the
property and submitted reports. It is true that property of respondent is situated
on the west of the suit property. But, there again there is no dispute regarding
the boundary in between. Advocate Commissioner has reported about a way
through the suit property. It is in the above circumstances that the learned
Munsiff has observed that no question of survey commission is involved and
what is required to be proved is only whether respondent has right of access
through the suit property. May be, being a suit for injunction petitioner has to
provide that property is situated within defined boundaries. But here there is no
dispute regarding boundaries. On the facts of the case a survey commission is
not required. There is no reason to interfere with the impugned order.
2. So far as the reports submitted by Advocate Commissioner is
concerned, it is only a piece of evidence and it is within the power of petitioner to
adduce appropriate evidence as regards his contention whatever the reports of
Advocate Commissioner may say.
Petition is closed with the above observation.
THOMAS P.JOSEPH,
Judge.
cks