KUNJANNAMMA Vs. SANTHOSH

JUDGEMENT

(1.) EXHIBIT P5, order dated December 3, 2010 on I.A.No.1734 of 2010 in O.S. No.110 of 2010 of the court of leaned Munsiff, Vaikom is under challenge in this petition at the instance of defendant No.1. That a is suit filed by the respondents against petitioner and others for a decree for prohibitory injunction against trespassing into plaint schedule item No.3 described as a way or interfering with enjoyment of the said way by respondents by closing the gate. Petitioner and other defendants filed written statement denying the right claimed by respondents. They disputed claim of respondents over item Nos.1 and 2 of plaint schedule as per documents of title referred to therein. In the course of the suit, two reports were obtained through Advocate Commissioner. Once the suit was dismissed for default, later restored to file and again listed for trial in November, 2010. It is at that time respondents filed I.A. No.1734 of 2010 to appoint an Advocate Commissioner to report on the lie of the property with the assistance of Surveyor.That application was resisted by petitioner but it was allowed as per Ext.P5 which is under challenge. Learned counsel for petitioner contends that attempt of respondents is only to protract and delay trial of the suit while the way exclusively belonging to the petitioner is being enjoyed by the respondents under cover of the interim order of injunction. Grievance of petitioner is that if a survey commission is allowed it will only protract the proceedings further. It is also contended that there are already two reports on record and it is without setting aside those reports that learned Munsiff has allowed the request for fresh commission.

(2.) TRUE, there are two reports already on record. But in fairness it is conceded that those reports are not submitted after measurement of property. It is not as if in respect of fresh matters court is powerless to call for a report without setting aside the earlier reports. As per Ext.P3, I.A. No.1734 of 2010 request of respondents is to measure property with reference to the documents of title and survey records. That measurement according to the learned Munsiff, is necessary for disposal of the suit. I also find from paragraph 1 of the plaint that according to the respondents they have right of access through the disputed way as per documents of title in their favour and the relief prayed for by the respondents is that petitioner be restrained from entering into plaint schedule item No.3 over which according to the respondents, petitioner has no right. It is in these circumstances that survey commission was found necessary for resolving the dispute involved and it is accordingly that learned Munsiff allowed the application. Having regard to the facts and circumstances of the case I find no reason to interfere with the impugned order.