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Judgment
V. Chitambaresh, J.—The suit is one for a declaration that the plaintiff has a right of way by easement by grant and for a decree of permanent prohibitory injunction. The Advocate Commissioner deputed by the court below had filed a report and a rough sketch which was sought to be remitted by the plaintiff. The same was the subject matter of O.P. (C) No. 1/2010 on the file of this Court which was disposed of by judgment dated 22-9-2010. The relevant portion of direction No. 1 given therein is as follows.
The Commissioner with the assistance of surveyor shall identify the pathway with reference to the descriptions of the disputed way in the document in question. I make it clear that direction is not to set out a pathway, but only to demarcate in the plan to be prepared by the surveyor the disputed way as shown in the documents in question.
The same Advocate Commissioner thereafter conducted yet another inspection and filed an interim report dated 9-12-2010 wherein it is interalia stated as follows.
Hence on consultation with the Taluk Surveyor, I am of the opinion that the property Plaint B schedule is not possible to identify [based on reference to the descriptions of the disputed way in the document in question only relying on the North Eastern corner or the Eastern boundary. The other boundaries are lying contiguously without any visible demarcation. Without identifying the Plaint B schedule property, the pathway Plaint A schedule also cannot be identified as the same lies on the Eastern side of the property mention in the disputed document. Moreover, the property if at all is to be identified, the Surveyor must be permitted to measure the entire property mentioned in Prior title deeds relating to properties in Survey 148.
It is evident from the interim report that the Advocate Commissioner has not executed the warrant completely and sought further directions from the court below with regard to the measurement of the property in Survey No. 148. The court below has however by the order impugned closed all the interlocutory applications treating the interim report as final. This is challenged by the plaintiff in this original petition under Article 227 of the Constitution of India.
The interim report is clear that the Advocate Commissioner sought permission to measure the property in Survey No. 148 with reference to relevant title deeds. The relevant documents of title are following.
i) Partition Deed No. 381of 1975, S.R.O, Ernakulam.
ii) Sale Deed No. 1657 of 2003, S.R.O Maradu
iii) Gift Deed No. 2930/2003, S.R.O Maradu.
The plaintiff undertakes to produce all the documents referred to above in the court below forthwith.
It is only proper that the Advocate Commissioner is permitted to complete the work in the manner in which he proposed. The court below was totally unjustified in aborting the work of the Advocate Commissioner construing the judgment in O.P (C) No. 1/2012. It is of course true that this court had only mentioned about sale deed No. 1657/2003, S.R.O, Maradu. But the Advocate Commissioner felt that a deeper probe is necessary with reference to partition deed No. 381/1975 and gift deed No. 2930/2003, S.R.O, Maradu also. The impugned order in I.A No. 5741/2012 in O.S No. 1158/2007 on the file of the Court of the Second Additional Munsiff, Ernakulam is set aside for this limited purpose. Both sides agree that Mr. G.Rajagopal, Advocate may be appointed as a joint Commissioner along with Mr.R.Vinu Raj, Advocate to complete the work. This is in view of the fact that an experienced hand is required to discern the existence of alleged pathway over the property in question. The court below will see to it that the joint commissioners file a revised report within a period of three months from the date of receipt of a copy of this judgment.
Every endeavour shall be made to dispose of the suit itself within a period of two months thereafter.
The Original Petition (Civil) is disposed of as above. No costs.