SATHYAN Vs. KRISHNA LEKHA K.R.

JUDGEMENT

(1.) THE prayer in this Original Petition is for a direction to the District Court (University Appellate Tribunal), Thiruvananthapuram to consider and dispose of Ext.P4, application - I.A. No.3240 of 2012 for appointment of survey commission before hearing and disposing of A.S. No.100 of 2010 and 136 of 2012 pending in that court.

(2.) DISPUTE concerns dimension of a pathway regarding which petitioners claimed a decree for prohibitory and mandatory injunction in O.S. No.1474 of 2008 of the Munsiff's Court, Thiruvananthapuram. Respondents claimed a decree for prohibitory injunction against petitioners, in O.S. No.1444 of 2008 of the same court. It is submitted that in O.S. No.1474 of 2008 the Advocate Commissioner inspected the property and submitted Ext.P1, report suggesting that to ascertain whether there is any encroachment made by the petitioners in any portion of the pathway, a survey commission is necessary. However, no survey commission was taken. Trial court granted a decree in part in both the suits fixing 1.05 metres as width of the pathway as reported by the Advocate Commissioner. Petitioners preferred A.S. Nos.100 of 2010 and 136 of 2012.

(3.) LEARNED Senior Advocate has relied on the decision in Arun Kumar v. V. Raveendran (2006 KHC 1904) where, referring to reception of additional evidence under Rule 27 of Order XLI of the Code of Civil Procedure (for short, "the Code") in appeal the Supreme Court directed the first appellate court to decide the application before deciding the appeal.