Local investigations ordered by courts must directly relate to the matters of dispute and cannot extend to unrelated inquiries into property ownership.

JUDGMENT

Dated this the 15th day of September, 2021 The petitioner is the defendant in O.S.No.134 of 2017 pending on the files of the Munsiff’s Court, Vatakara. The suit is filed for a permanent prohibitory injunction restraining the petitioner from encroaching upon the pathway (B schedule) lying on the east of the properties of the plaintiffs/respondents herein (A schedule). The plaint averments, in brief, are as follows;

The plaintiffs, along with two others, are in ownership, possession and enjoyment of plaint A schedule property. The only access to A schedule is through B schedule lane on the east, having a length of 60 metres and width, varying from 4.5 to 5.00 metres. The property of the defendant is situated on the eastern side of B schedule lane and is comprised in old Sy.Nos.43/12A2, 12/B, 43/9, 43/10, 43/18B and 43/17 C. The defendant is constructing a huge multi-speciality hospital building in the property. The defendant started construction of the compound wall on the western boundary of his property, adjoining the B schedule lane, by encroaching into the lane, thereby reducing its width. Hence the suit for permanent prohibitory injunction.

2. In his written statement, the petitioner contended that, reference made in the plaint to the old survey fields is a deliberate attempt to mislead and that, the re-survey of the lands in question had taken place years back. It is averred that the plaint B schedule property is in re- survey field No.18/22 of Chorode Village and the measurement of the lane shown in the plaint is patently false. In fact, when the petitioner alleged encroachment and attempted to obstruct construction of the compound wall, the respondents had approached the Tahasildar, Vadakara for getting the survey boundaries identified and fixed. Accordingly, the survey authorities had identified the survey boundaries of re-survey field No.18, with special reference to Sub Division 22. The average width of the lane as per the re-survey records is less than 2 metres.

3. In the suit, local investigation was ordered at the instance of the plaintiff and the Advocate Commissioner filed report and plan. Being dissatisfied with the report, the plaintiff filed application for remitting the commission report and to direct the Commissioner to identify and measure out the property belonging to the defendant. The petitioner objected to the prayer contending that the measurement of his property is not at all required for the purpose of deciding the suit. By Ext.P5 order, the court below allowed the application for remitting the commission report. Hence, this original petition.

4. Sri.Chethan Krishna R, learned Counsel for the petitioner contended that the trial court had committed gross illegality in brushing aside the survey plans prepared under the Kerala Survey and Boundaries Act. The width of B schedule lane as per Ext.P8, ranges 1.7 metres to 2.00 metres and not 4.5 to 5.00 metres, as averred in the plaint. Learned Counsel submitted that the lane is in old survey No.43/8 and the petitioner has no land in that survey number. Therefore, at best, the court could have required the Advocate Commissioner to ascertain the boundary between survey No.43/8 and the adjoining property of the petitioner, comprised in old Sy.No.43/12A2. Moreover, the only issue to be decided being the width of B schedule lane and the alleged encroachment, there is absolutely no necessity to identify and measure the properties of the defendant, extending to around 475 cents. Attention is drawn to Order 26 Rule 10(3) to contend that further enqiry by the Commissioner can be ordered only if the court is dissatisfied with the report. The learned Counsel also challenged the maintainability of the suit, pointing out that the defendant is not the owner of the properties and the properties are owned by a Company named “Parco Institute of Medical Sciences Pvt. Ltd”, of which the defendant is the Chairman.

5. Sri.B.Krishnan, learned Counsel for the respondents c