C.S.DIAS

1. The original petition is filed to set aside the order dated 17.2.2019 in I.A.2069/2019 in O.S.594/2015 (Ext.P9) passed by the Court of the Additional Munsiff-I, Kozhikode.

2. The petitioners are the plaintiffs in the above suit filed against the respondent, seeking a decree for a permanent perpetual prohibitory injunction to restrain the defendant from disturbing the peaceful enjoyment of the petitioners over plaint 'B' schedule pathway.

3. Pursuant to Ext.P2 application filed by the petitioners, an Advocate Commissioner was appointed, who filed Ext.P3 report. The said report was remitted back, and thereafter, Ext.P4 report was filed. Since Ext.P4 report was also incomplete, the petitioners filed a fresh application along with Ext.P5 work memo to remit the commission report. Even though an Advocate Commissioner inspected the property on 29.5.2017, Ext.P6 report was filed only on 7.11.2018. In Ext.P6, the Advocate Commissioner has erroneously observed the age of the construction carried out between plaint 'A' and 'B' plaint schedule properties. Hence, the petitioners had filed Ext.P7 application to remit Ext.P6 commission report. The same was objected by the respondent through Ext.P8 objection. The court below, without considering Exts.P7 and P8, has by the impugned Ext.P9 order dismissed Ext.P7 application. Ext.P9 is erroneous and wrong. Hence the original petition.

4. Heard; Sri.C.Murali Krishnan, the learned counsel appearing for the petitioners and Sri.Srinath Girish, the learned counsel appearing for the respondent.

5. The point that arises for consideration in this original petition is whether there is any illegality in Ext.P9 order passed by the court below.

6. The grievance of the petitioners is that, in Exts.P3 and P4 reports the Advocate Commissioner has not mentioned the age of the construction. But, in Ext.P6, the Advocate Commissioner has, without any basis, made an assessment regarding the age of the construction for which she is not qualified. Therefore, the petitioners requested for the remission of Ext.P6 commission report, so that the age of the granite stone wall in between the plaint 'A' and 'B' schedule properties can be assessed by an expert, which would discredit Ext.P6 report. However, the court below has by the impugned order, on the premise that there are already three reports on record, disallowed Ext.P7 application.

7. It is trite, the opinion expressed by an Advocate Commissioner is only corroborative in nature. It is up to the parties to prove by cogent evidence on the matters regarding the issues involved in the suit. Moreover, the petitioners would be at liberty to always cross-examine the Advocate Commissioner and discredit the opinion expressed by the Advocate Commissioner in the commission reports.

8. On a consideration of the pleadings and materials on record, I find that the Advocate Commissioner had not earlier assessed the age of the construction, since she was not called upon to do so. But, in Ext.P5 work memo, the Advocate Commissioner is called upon to ascertain the approximate age of the permanent structure in the property, which she has done .

9. It was in the above factual background, that the Advocate Commissioner has in Ext.P7 report mentioned about the age of the construction of the building as per her knowledge and assessment. That does not mean that the same is conclusive in nature. It would be up to the petitioners to object to the commission report and crossexamine the Advocate Commissioner on the above aspect. I do not find any error in Ext.P9 order warranting interference by this Court in exercise of the jurisdiction under Article 227 of the Constitution of India.

10. With the above observations, leaving open the right of the petitioners to cross-examine the Advocate Commissioner, this original petition is dismissed.