RAGHAVAN, S/O. ALINCHERIYIL Vs. THE SECRETARY

JUDGEMENT

(1.) PLAINTIFF in O.S. No. 534 of 2009 of the court of learned Munsiff, Wadakkancherry is the petitioner before me challenging Ext.P8, order on I.A. No. 1245 of 2010 refusing to appoint a survey commission for measurement of the property and in particular the disputed pathway (plaint C to F schedules as stated in the plaint). Petitioner sued respondent for a decree for prohibitory injunction claiming that plaint A schedule belongs to him, plaint B schedule belongs to the respondent and that, plaint C to F schedules are the pathway through plaint B schedule over which petitioner claimed a right of easement by prescription, by way of necessity and custom. Immediately after institution of the suit on the request of petitioner an Advocate Commissioner inspected the property and submitted Ext.P2, report. Respondent filed written statement denying existence of the disputed pathway and the right claimed by petitioner over it. Petitioner filed I.A. No. 1246 of 2010 to amend the plaint to incorporate a prayer for mandatory injunction alleging that respondent interfered with the disputed pathway. That application was allowed. The Advocate Commissioner inspected the property and submitted Ext.P5, report stating that he could not find any such way as stated in the plaint schedule. That was followed by petitioner filing Ext.P7, application (I.A. No. 1245 of 2010) to appoint a survey commission to measure the property and submit report. That application was dismissed by the learned Munsiff vide Ext.P8, order observing that the suit being one for enforcement of right of easement and there being no dispute as to title and possession of plaint A and B schedules it is not necessary to appoint a survey commission. Ext.P8, order is under challenge. It is contended by learned Counsel that learned Munsiff has taken an erroneous view of the matter. According to the learned Counsel, if petitioner can show by measurement that respondent is in possession of more extent of land than its entitlement as per documents of title, that is certainly an indication that the existing pathway has been annexed by respondent. Learned Counsel submitted that learned Munsiff was not correct in making observations in Ext.P8 as to the non -existence of the pathway referred to in plaint schedule.

(2.) THE question for consideration is whether in a suit of the present nature it is necessary to appoint a survey commission. As rightly pointed out by the learned Munsiff there is no dispute regarding title or possession of plaint A and B schedules with petitioner and respondent, respectively. What is claimed is only right of access, be it by way of prescriptive easement, by way of necessity or custom over plaint C to F schedules which according to the petitioner passes through plaint B schedule belonging to the respondent. To prove any of the claims made by petitioner I am not persuaded to think that measurement of the property is necessary. It is not as if according to the petitioner the disputed pathway went outside plaint B schedule belonging to the respondent and it has been annexed by the respondent so that a survey commission was necessary to identify the extent of land belonging to the respondent as per its title deed. Having regard to the nature of claim made, I find no reason to interfere with the view taken by learned Munsiff that a survey commission was not necessary. So far as observations in Ext.P8, order with which petitioner is aggrieved are concerned, grievance of the petitioner is that as against what the Advocate Commissioner has stated in paragraph No. 6 of Ext.P2, report, learned Munsiff has observed that there is no way as pleaded by petitioner. According to the learned Counsel if that observation stood it would affect the very claim of petitioner. I make it clear that whatever observation has been made by the learned Munsiff while disposing of Ext.P7 will only be confined to the decision of that case and notwithstanding the observations learned Munsiff has made as to the existence or otherwise of the pathway, it is open to the petitioner to prove the same by appropriate mode.