NEENA VARGHESE Vs. ANNAMMA JOSEPH

JUDGEMENT

(1.) PETITIONER is plaintiff in O.S.No.355 of 2009 of the Court of learned Munsiff, Hosdurg. PETITIONER prayed for a decree for prohibitory injunction to restrain respondents from trespassing into the suit property, demolishing the existing fence or forming any road through the property. The said suit was filed on 13.10.2009. On the request of petitioner an Advocate Commissioner inspected the property on 15.10.2009 and submitted Ext.P1, report. Respondents filed written statement contending that they have a right of easement by prescription along the way running through the property belonging to the petitioner and originating from the panchayath road on the extreme north. Issues were framed on 13.01.2010 and thereafter the case was posted for pre-trial steps on several occasions. On 06.09.2010, petitioner filed Ext.P2, application for appointment of an Advocate Commissioner to note that on either side of the western boundary of the suit property, there are platforms and rubber plantation and also to report that there are no footprints through property of petitioner. That application was resisted by the respondents. Learned Munsiff dismissed the application by Ext.P3, order dated 22.09.2010 observing that the parties can adduce oral evidence and if necessary in the course of trial Commissioner could be appointed. The order dated 22.09.2010 is under challenge in this original petition filed on 04.01.2011. In the meantime the case was posted for trial in the list on 08.12.2010 and PWs.1 to 3 were examined. On closure of the evidence of petitioner, case was posted for evidence of respondent on 03.01.2011. DW1 was examined on that day. Learned counsel for respondents submits that the case was posted for further defence evidence on 07.01.2011 on which day the predecessors-in-interest of petitioner were to be examined on the side of respondents to prove that even before petitioner acquired the suit property, there was a way in existence through the said property and which respondents and predecessors-in- interest were using as of right. It is at that stage that this original petition was filed on 04.01.2011 to set aside Ext.P3, order dated 22.09.2010 and to depute another Advocate Commissioner.

(2.) LEARNED counsel for petitioner has contended that for an effective decision of the suit, it is necessary to appoint an Advocate Commissioner and that existence of platform in the property of respondents abducting boundary of the suit property would indicate that there was no such pathway as claimed by the respondents or as reported by the Advocate Commissioner.