ALEXANDER Vs. CHARLY

JUDGEMENT

(1.) DEFENDANT in O.S.No.184 of 2009 of the court of learned Principal Munsiff, Kochi is the petitioner before me. O.S.No.184 of 2009 is a suit filed by respondent for fixation of boundary and for other reliefs. In the meantime petitioner filed O.S.No.180 of 2009 for a decree for prohibitory injunction claiming right of easement. In O.S.No.184 of 2009 respondent filed Ext.P5, application for appointment of an Advocate Commissioner to measure the property (for fixation of boundary as prayed for in the suit). Petitioner filed Ext.P7, work memo requesting the Advocate Commissioner to ascertain the items referred to therein. Learned Munsiff passed Ext.P9, order appointing an Advocate Commissioner and directing him to report on item Nos.1, 3, 5, 7 and 8 in Ext.P5, application and item No.1 in Ext.P7, work memo. Petitioner is aggrieved to the extent that the rest of request made in Ext.P7, work memo was rejected by the learned Munsiff. It is pointed out by the learned counsel that item No.1 in Ext.P7, work memo having been allowed item No.2 is only consequent to item No.1 and for the purpose of deciding the disputes involved in both cases it was necessary that item No.2 onwards requested for in Ext.P7, work memo was also allowed to be ascertained through Advocate Commissioner.

(2.) I have heard learned counsel on both sides. The dispute is concerning item No.2 onwards in Ext.P7, work memo. Item No.1 in Ext.P7 is to measure the property of petitioner/defendant with reference to document No.2279 of 1983, its prior documents and village records and fix common boundary with the suit property in O.S.No.184/2009. Item No.2 in Ext.P7, work memo in short is to ascertain and report on the alleged boundary made of bricks reported by the Advocate Commissioner in Ext.P4 and matters allied thereto. Item No.4 in Ext.P7, work memo is to ascertain the situation of property in between the gap having a width of 3.10 metres reported by Advocate Commissioner as existing on the southern compound wall of respondent/plaintiff and the residential building of the petitioner. So far as the other items in Ext.P7 are concerned, no serious argument is advanced before me by the learned counsel for petitioner and going through Ext.P7, work memo I find no reason to think that those matters are required to be ascertained. Now the dispute is confined to item Nos. 2 and 4 in Ext.P7. It is seen from Ext.P4 that the Advocate Commissioner has reported about the alleged boundary made of bricks on the northern side of property of respondent (suit property) and the Commissioner has also referred to certain plants planted inside the said construction. On the west of property of petitioner (ie. on the east of suit property in O.S.No.184 of 2009) Commissioner reported in Ext.P4 about flower pots and construction of a small fence. Petitioner wants those matters to be identified with reference to item No.1 in Ext.P7 which is already allowed by learned Munsiff.