JUDGMENT : T.R. Ravi, J. Both these original petitions arise from O.S.No.128 of 2025 pending before the 1 st Additional Munsiff Court, Ernakulam. The petitioner in O.P(C).No.1706 of 2025 is the plaintiff in the suit and the respondent is the defendant. The prayer in Ext.P1 suit is for a decree declaring that the plaintiff is having a right of easement by prescription over the plaint C schedule road for the enjoyment of plaint A schedule property and for a decree for permanent prohibitory injunction restraining the defendant or any person/persons claiming under him from causing any obstruction of any manner to the plaintiff in enjoying plaint C schedule road, from erecting fence/wall or placing any obstruction across plaint C schedule road. The plaintiff has admittedly purchased the property as per sale deed No.4410 of 2007 of S.R.O. Maradu. The property originally belonged to the Tharavadu of the father of the defendant as per a partition deed executed in 1990. The properties were allotted to the father of the defendant and to the other sharers. According to the plaintiff, the plaint B schedule is the property set apart to the father of the defendant. According to the defendant, the property allotted to the father of the defendant, is the B schedule along with C schedule. After the partition in 1990, there was another partition in 1993 between the legal representatives of the defendant's father. As per the said partition deed, the B schedule along with C schedule was set apart to the share of the defendant, according to the defendant. The plaintiff purchased A schedule property from some other sharers in 2007. It was long thereafter, in 2025, that the plaintiff initiated suit claiming an easementary right through plaint C schedule, which is stated to be a pathway leading from the public road. According to the plaintiff, she has no other way to reach her property. The plaint is not very clear about the right which has been put forward. Even though reference has been made to the earlier documents of 1918 and 1926, it is not necessary to go into same at this stage. According to the plaintiff, she has no other way to reach her property. The plaint is not very clear about the right which has been put forward. Even though reference has been made to the earlier documents of 1918 and 1926, it is not necessary to go into same at this stage. The cause of action for the suit is stated to have happened on 03.02.2025 when the defendant attempted to prevent the plaintiff from using plaint C schedule road by constructing a wall separating plaint C schedule and A schedule property and thereby completely locking access to the plaintiff's property. It is further stated in the plaint that the wall was demolished and removed by the plaintiff and her husband and that on 04.03.2025 another temporary obstruction was made by the defendant, which was also removed by the plaintiff. In paragraph 9 a specific case put forward by the plaintiff is that the plaintiff is entitled to use the C schedule road for enjoyment of plaint A schedule property as a right of easement by prescription. However, in the affidavit in support of the plaint, the plaintiff has stated that the suit has been filed for declaring that the plaintiff is entitled to have a right of easement by necessity over plaint C schedule road. In the application for temporary injunction, a copy of which has been produced as Ext.P3, the plaintiff has in paragraph 2 stated that he is having a right of easement of necessity over plaint C schedule road. In paragraph 7, it is stated that the C schedule road is being used for ingress and egress from time immemorial. In paragraph 9, the plaintiff says that the plaintiff has an easement right and perfected the right by easement by prescription. It is also admitted that on two occasions the plaintiff has demolished the obstructions placed on plaint C schedule. The suit was filed on 06.02.2025. An ex-parte commission was issued on 07.02.2025 and a report has been filed. According to the defendant, the wall of the C schedule way was demolished in the morning of 07.02.2025 and the Commissioner visited the property at around 3.15 p.m. It is also stated that an ex parte injunction order was issued 11.02.2025. The commission report was filed on 14.02.2025. On 15.02.2025 a counter affidavit was filed by the defendant. On 11.03.2025 the injunction order was made absolute. The commission report was filed on 14.02.2025. On 15.02.2025 a counter affidavit was filed by the defendant. On 11.03.2025 the injunction order was made absolute. The defendant filed an appeal against the order of injunction, which has been dismissed on 20.05.2025. The order of injunction as confirmed by the Appellate court has been challenged in O.P(C).No.1800 of 2025 filed by the defendant. 2. The defendant had filed a commission application stating that several aspects need to be looked into and reported. The said application was allowed by the court below. Against the said order, the plaintiff has filed O.P(C).No.1706 of 2025 contending that a second Commission should not have been issued without setting aside the 1 st commission report. 3. Heard the counsel on either side. 4. The counsel for the plaintiff submitted that the court was not justified in issuing an order appointing a commission without setting aside the earlier one. It is submitted that all essential facts are already part of record in the form of a Commission report. The counsel also submitted that he has no objection in ascertaining matters which are not part of the record. Reliance is placed on the judgment of the Division Bench of this Court in Swami Premananda Bharathi vs. Swami Yogananda Bharathi and Another [ AIR 1985 Ker 83 ] to submit that without setting aside a commission report, second Commission could not have been issued. The counsel also relied on the decisions in Francis Assissi vs. Sr.Breesiya and Others [ 2017 KHC 15 ] , Prasanth T.J vs. Superintendent of Police [2026 KHC Online 1590] and Prasannakumari vs. Krishnakumari and Another [ 2011 (2) KHC 113 ] in support of his contentions. It is further contended that under Section 24 of the Easement Act he has a right to protect his easement and hence the demolition of the wall cannot be stated to be illegal. The counsel for the defendant submitted that the order of the court below as well as the First Appellate Court while granting injunction was solely based on a finding regarding an easement of necessity. It is submitted that the case of the plaintiff is based on an easement by prescription and not an easement by necessity. This fact is affirmed by the counsel for the plaintiff also before this court. It is submitted that the case of the plaintiff is based on an easement by prescription and not an easement by necessity. This fact is affirmed by the counsel for the plaintiff also before this court. The counsel for the plaintiff also maintains that his case is on an easement by prescription and not an easement by necessity. The court below has not gone into the question of easement by prescription at all. If it is an easement by prescription, necessarily the plaintiff will have to show not only the user by the plaintiff but also the user by the predecessors in order to make up the period of prescription. Hence, on the very question of prima facie case, the trial court as well as the First Appellate court has gone wrong, since the basis of the orders is totally against the pleadings in the case. As such, there is no justification for the orders of injunction. The court has probably presumed that the contention is easement by necessity since the affidavit in support of the petition shows that the plaintiff's case is based on easement by necessity. However, a reading of the plaint would show otherwise. The orders impugned in O.P(C).No.1800 of 2025 cannot hence be sustained. The impugned order in O.P(C).No.1706 of 2025, has considered the effect of the Division Bench judgment of this Court in Laly Joseph vs. Francis [ 2023 (3) KHC 678 ] and the judgment in Sreedevi vs. State of Kerala [2024 (2) KLT 645] and held that it was open to the court to remit a Commission report for further inquiry and also appoint a fresh commission without setting aside the earlier commission report. The view slightly different from the earlier view stated in Swami Premananda (Supra) has been taken. Similarly, in the decision in Francis Assissi vs. Sr.Breesiya and Others [ ] another Division bench of this Court had also considered the same issue and held that the court does not speak of setting aside a Commission report and the position of law was summarised in paragraph 42 of the judgment. The court held that the question of setting aside or varying or confirming the report of the commission would arise only in the case of commission appointed for the purpose of effecting partition under Rule 13 to 14 (3) of Order XXVI CPC and will not apply to other cases. The court held that the question of setting aside or varying or confirming the report of the commission would arise only in the case of commission appointed for the purpose of effecting partition under Rule 13 to 14 (3) of Order XXVI CPC and will not apply to other cases. It is also seen from the application for commission that several aspects were sought to be reported upon which do not form part of the report which is already available. I do not hence find any legal infirmity in the impugned order. In the result O.P(C).No.1706 of 2025 is dismissed affirming the order dated 09.07.2025 in I.A.No.12 of 2025 in O.S.No.128 of 2025. OP(C).No.1800 of 2025 is allowed. Exts.P6 and P7 orders passed by the Munsiff's Court, Ernakulam and the Additional District Judge-II, Ernakulam respectively are set aside. The Munsiff's Court, Ernakulam is directed to reconsider I.A.No.1 of 2025 in O.S.No.128 of 2025 and pass fresh orders if necessary, after taking evidence.