Madhavan v. Narayanankutty and others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **MONDAY, THE 19[th] DAY OF AUGUST 2019 /28TH SRAVANA, 1941** ## **OP(C).No.2038 of 2017** **AGAINST THE ORDER in EA No.219/2017 in EA No.30/2017 in EP No.75/2009 IN OS 655/2001 of MUNSIFF COURT ,VADAKKANCHERRY** ## **PETITIONER/CLAIM PETITIONER:** **MADHAVAN, AGED 70 YEARS, S/O. CHANGAMKUZHI LATE KARAPPAN,CHITTANDA VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.RAJIT** ## **RESPONDENT/DECREE HOLDERS & JUDGMENT DEBTOR:** - **1 NARAYANANKUTTI, AGED 65 YEARS, S/O. KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680 582** - **2 MEENAKSHI AMMA, AGED 62 YEARS, D/O.KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680 582** - **3 PADMINI AMMA, AGED 60 YEARS,D/O. KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680582** - **4 INDIRA AGED 58 YEARS, D/O. KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680582** - **5 SIVANANDAN** **AGED 56 YEARS, S/O. KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680582** O.P.(C) No.2038/2017 2 - **6 RADHIKA** **AGED 40 YEARS, D/O. KIZHAKEKARA VELLATHERI VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680582** - **7 SIVARAMAN** - **AGED 50 YEARS, S/O. PANENGATIL KUTTAN, CHITTANDA VILLAGE/DESOM,TALAPPILLY, THRISSUR DISTRICT.680582** - **8 UNNIKRISHNAN** **AGED 52 YEARS, S/O. VELLATHERY VILASINI AMMA,CHITTANDA VILLAGE/DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT.680582** **BY ADVS. SMT.R.RAJITHA SMT.VINAYA V.NAIR SRI.SANTHOSH P.PODUVAL** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05.07.2019, THE COURT ON 19/8/2019 PASSED THE FOLLOWING:** O.P.(C) No.2038/2017 3 ## **JUDGMENT** Petitioner herein is the claim petitioner in EA No.30/2017 in EP No.75/2009 in OS No.655/2001 of the Munsiff Court, Wadakanchery. He impugns the order of dismissal of EA No.219/2017, in which he had requested for deputing an advocate commissioner with the assistance of surveyor to measure the property. 2. Respondents 1 to 6 herein had filed OS No.655/2001 against respondents 7 and 8 along with one Vilasini amma. It was claimed by the plaintiffs that A schedule property mentioned in the suit vested with the plaintiffs, Vilasini Amma and the 8[th] respondent, who was arrayed as the third defendant, by virtue of the partition deed No.1416/1963 of Wadakanchery SRO. After the partition, a 3 feet wide and 224 ft.long pathway was left on the northern side of the entire property for the use of the plaintiffs. It was also used by the first defendant, who is the 7[th] respondent herein and also the neighbouring land owners. The way is described as B schedule. It was alleged in the suit that, the first defendant, claiming that he had obtained consent from the second and third defendants to widen the way, on 10/11/2001 trespassed into the A schedule property, demolished the boundary, carved out C schedule from A schedule property and annexed it to the B schedule pathway. Suit was filed for recovery of C schedule property from the first defendant on the O.P.(C) No.2038/2017 4 strength of title held by the plaintiffs and the defendants 2 and 3. Ext.P2 is the commission report and the rough sketch. The property was also measured with the help of the surveyor and the sketch was prepared. On the basis of the evidence let in by both sides, the suit was decreed by Ext.P3. The survey sketch was appended to the above decree. It has become final in the absence of any challenge. 3. Execution was laid as E.P.No.75 of 2009, which is pending. Petitioner herein, who was a neighbouring property owner, filed Ext.P4 claim petition in the execution petition alleging that, claim petition A schedule property was allotted to him. It was contended in the claim petition that claim petition B schedule way was allotted to the claim petitioner, which was used by him and other neighbours. He had no other way and hence, he has perfected his right to easement by prescription and grant. Claim petition B schedule way was claimed to have a width of 2.40 m to 2.70 m and 110 m length. It was alleged that respondents 1 to 6 filed O.S.No.655/2001, suppressing the fact that, plaint B Schedule way formed part of the claim petition B schedule way. It was also alleged that, the decree was obtained without disclosing the right of way of the claim petitioner to claim A schedule property. A local inspection was carried out and Ext. P5 commission report and the rough sketch was submitted. Pending the proceedings, EA No.655/2001 was O.P.(C) No.2038/2017 5 filed by the claim petitioner for deputing a surveyor along with an Advocate commissioner to measure out the property in the light of the decision reported in **Raveendran v. Lohithakshan (2017 (2) KLT 865).** In the above decision, this court had held that in a suit for injunction to restrain the defendant from obstructing the plaintiffs from using pathway on the basis of the claim for easement, effective decree can be passed only if there is a plan having sufficient measurement, prepared by a competent surveyor. However, the above E.A.was dismissed by the court below on the premise that the commission report with a sketch was already available in the original suit and no separate measurement was required. 4. The above order is under challenge in this original petition. The apprehension of the original petitioner is that in the light of the law laid down in Raveendran's case, there is every likelihood of his claim petition being dismissed at a later stage, on the ground that an effective order cannot be passed in the claim petition, in the absence of a commission report with a sketch prepared by the competent surveyor. 5. Evidently, the claim petition was for an injunction on the strength of easement right over the B schedule property. The sole question that arises for consideration in this original petition is whether in a suit for injunction simpliciter, appointment of survey commissioner to O.P.(C) No.2038/2017 6 measure out the property to prepare a sketch is essential prerequisite for granting the relief. 6. There cannot be any dispute that, easement being a precarious and special right, in which one person claims right over another man's land, the nature of right claimed and factual ingredients constituting the evolution of the right, the details of its user, the length, width, lie and location of the easement have to be precisely and meticulously pleaded and established in court. Easement by prescription being a right which is evolved by exercise of continuous user on a definite portion of the land over a long period of time, the easement and the nature of its use are bound to be evident by well defined visible physical marks available on the land, supporting the claim of existence of way and its user. In the case of easement by necessity also, the essential ingredients including the existence of way, its user and absence of any other way, can also be established by visible physical materials. This can easily be established by a local inspection furnishing the precise details of the way available, its approximate age of user and the evidence supported by rough sketch showing the lie, location, width, length, evidence of its continuous user, age and details of both terminals. This will sufficiently enable the court to give an effective enforcible decree. Evidently, easement has to be established by the details of physical O.P.(C) No.2038/2017 7 visible marks on the land. Since continuous long use being Sine Quo non of easement by prescription and user of land with no other way being the essential ingredients of easement by necessity, which are dependent on physical, visible factors, a survey commission based on imaginary line is not only not essential, but absolutely unnecessary in a suit based on easement or a simple suit for injunction based on easement. 7. The above principle may equally be extended in appropriate cases, to a suit for injunction simpliciter, based on possession with well defined physical boundaries. In some cases plaintiff may rely on title also to support the claim possession. Even in a suit based on an allegation that there is obstruction of the way, encroachment to the way and construction encroaching into way, etc. an effective enforceable decree can be granted based on the report of local inspection alone, if precise measurement details of obstruction, constructions, encroachment, etc. are made available, coupled with reliable and admissible parol evidence. 8. The situation may not be different even if the defendant raises a contention that the property is not identifiable or that the boundaries are wrong or that the plaintiff has no title over the property. Merely because there is such a denial, that should not necessarily lead O.P.(C) No.2038/2017 8 to the framing of an issue regarding title or dispute of boundary, nor it call for measurement of the entire property with the help of a surveyor. Measurements with the help of surveyor becomes necessary, only if necessity for measurement of property genuinely arises from the pleadings of parties and if such an issue is raised. Unnecessary measurement with Surveyor causes unwanted monetary expenses for the parties and causes avoidable delay in conclusion of the litigation. Delay in measurement with surveyor and waiting for report of the Commissioner can be attributed as the single most common cause for the delay in the conclusion of majority of injunction suits. 9. This view gets its credence from the judgment in _**Arikkulangara Kunhikkeloth Righesh Babu and Another v. Pullanhodan Kunnoth Gopalan Nambiar(Died) by Lrs.and Others (2014 (4) KHC 294).**_ This court had held that in a suit for perpetual and mandatory injunction based on possession, it is necessary for the plaintiff to prove that property has well defined physical boundaries and thus it can be identified from the adjoining properties. It was held that the property has to be identified not on the basis of the survey plan, because survey line is imaginary and people identify and enjoy properties not on the basis of imaginary lines, but on physical boundaries like wall, fence, row of trees, difference in level, boundary stones etc. If there is O.P.(C) No.2038/2017 9 no such line separating the properties of the plaintiff and the defendant, the proper remedy is to file a suit for fixation of boundary. 10. In the case at hand, in the original side, there was a prayer for recovery of possession. Hence, survey commission was taken. In the claim petition, a survey commission was not required, since the only prayer was an injunction simpliciter. Consequently, the finding of the court below that the claim petitioner can rely on Ext.P5 seems to be correct. However, if at any later point of time, it is brought out that a portion of the B schedule covered by Ext.P5 overlaps with claim petition B schedule property, a survey commission can be considered at that stage. 11. To my mind, Raveendran's case (cited supra) does not lay down the correct law. The decision in Arikkulangara Kunhikkeloth Righesh Babu's case (cited supra) lays down the correct law and is liable to be followed. Hence, I am inclined to dismiss the original petition with the above observations. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** O.P.(C) No.2038/2017 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE PLAINT IN OS 655/2001 .** **EXHIBIT P2** **TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN THE SUIT.** **EXHIBIT P3** **TRUE COPY OF THE DECREE PASSED IN OS NO. 655/2001 OF THE MUNSIFF COURT WADAKKANCHERY.** **EXHIBIT P4** **TRUE COPY OF THE CLAIM PETITION E.A NO. 30/2017 IN E.P NO. 75/2009 BEFORE THE LEARNED MUNSIFF COURT, WADAKKANCHERY.** **EXHIBIT P5** **TRUE COPY OF THE REPORT AND SKETCH OF THE ADVOCATE COMMISSIONER.** **EXHIBIT P6** **TRUE COPY OF THE ABOVE APPLICATION IN E.A NO. 219/2017 IN E.A NO.30/2017 IN E.P NO.75/2009 IN OS NO.655/2001 OF THE MUNSIFF COURT WADAKKANCHERY.** **EXHIBIT P7** **TRUE COPY OF THE ORDER DTD 28.06.2017 IN E.A NO. 219/2017 IN E.A NO.30/2017 IN E.P NO.75/2009 IN OS NO.655/2001 OF THE MUNSIFF COURT WADAKKANCHERY.**