N KULANTHAVEL Vs. S SURESH KUMAR

JUDGEMENT

(1.) Plaintiff in O.S.No.75 of 2009 of the court of learned Munsiff, Kattappana is the petitioner before me. He challenges Ext.P3, order refusing to appoint a survey commission to identify plaint schedule properties.

(2.) According to the petitioner he owns 58 cents of land (described in the plaint as A to C schedules) and along the northern side of plaint A schedule there was a pathway having width of three feet which was being used by petitioner and others. It is the further case of petitioner that respondents/defendants trespassed into his property and increased width of the way to five feet using portion of his property. Respondents contended that the pathway was having a width of five feet even earlier. Petitioner filed I.A. No.620 of 2010 to appoint an Advocate Commissioner to measure plaint A to C schedule properties. Learned Munsiff has dismissed the application observing that in the nature of suit it is not necessary to appoint a survey commission. That order is under challenge. It is contended by learned counsel that measurement of properties belonging to petitioner would show whether there is any trespass into the properties as claimed by petitioner.

(3.) I have gone through the averments in the plaint. It is not as if case of petitioner is that disputed way was through plaint A to C schedules belonging to him. His case is that the disputed way was having width of three feet and was lying on the northern side of plaint A schedule through which he also having access to plaint A to C schedule properties. Plaint D schedule is the disputed way. According to the petitioner plaint E to G schedules are the portions of A to C schedules trespassed upon by respondents for widening the pathway.