Kerala High Court
Mathew vs Thankachan on 17 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942
OP(C).No.221 OF 2021
AGAINST THE ORDER IN OS 14/2019 OF MUNSIFF COURT, IDUKKI
PETITIONER:
MATHEW,
AGED 60 YEARS,
S/O MATHAI VARKEY,
EDAPPARAYIL HOUSE,
KAMBILIKANDAM KARA, PARATHODU,
IDUKKI - 685 571, KONNATHADY VILLAGE,
IDUKKI TALUK, IDUKKI DISTRICT.
BY ADV. SRI.V.KRISHNA MENON
RESPONDENT:
THANKACHAN,
S/O VARGHESE,
KAMBILIKANDAM KARA, PARATHODU,
IDUKKI - 685 571, KONNATHADY VILLAGE,
IDUKKI TALUK, IDUKKI DISTRICT.
BY ADV. SRI.ARUN MATHEW VADAKKAN
BY ADV. SRI.PADAYATTEE YELDO
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 17.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(C) No.221/2021
2
JUDGMENT
Dated this the 17th day of February, 2021
The plaintiff in O.S.No.14/2019 is aggrieved by the order
passed by the court below dismissing application for issue of Survey
Commission for measuring out the suit properties which included plaint C
schedule pathway.
2. Heard the learned counsel for the petitioner. It is an admitted
fact that a mahazar was already prepared by an advocate commissioner in
relation to plaint C schedule pathway. It is a rough sketch which does not
contain the measurements of 'C' pathway at all. In view of the dispute
raised by the defendants questioning the very existence of the plaint
schedule C pathway, preparation of mahazar at an early point of time was
necessary. But the rough sketch does not contain the necessary details
indicating the exact total length and width of the pathway at all points. It
was with this view in mind, I.A.No.4/2021 was filed by the plaintiff
seeking issue of Survey Commission.
3. The court below after hearing the parties was not pleased to
issue Survey Commission relying on a decision in Madhavan v.
Narayanankutty and Others [2019(4)KHC854]. In that decision, a view
was taken by this Court that issue of Survey Commission is not necessary in
O.P.(C) No.221/2021
a suit which is filed for determination of right to pathway disputed in the
suit by the parties.
4. After hearing the learned counsel for the petitioner, I am of the
opinion that though Survey Commission as such may not be necessary, a
fair plain containing requisite measurements pertaining to precise length,
breadth and other essential details of the pathway are essential for deciding
the issue arising in the suit. Though it appears that the suit is filed for a
mere perpetual injunction, the plaintiff has in fact claimed right of easement
over paint C schedule pathway. In that scenario, I am of the opinion that it
is quite unnecessary to survey C schedule in terms of any revenue and
survey records commission and it is enough if a fair plan containing
requisite measurements of the pathway under the dispute is collected by
issue of Commission. The impugned order passed by the court below
therefore requires to be modified.
In the result , O.P. is allowed in part. I.A.No.4/2021 is allowed
to the limited extent of permitting the plaintiff to take out commission for
preparing a fair plan containing precise measurements of 'C' pathway so as
to enable the court below to decide the issue finally.
Sd/-
T.V. ANILKUMAR
JUDGE
SSK/17/02
O.P.(C) No.221/2021
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S.NO.14 OF
2019.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT IN
O.S.NO.14 OF 2019.
EXHIBIT P3 TRUE COPY OF THE REPORT AND SKETCH
SUBMITTED BY THE ADVOCATE COMMISSIONER IN
O.S.NO.14 OF 2019.
EXHIBIT P4 TRUE COPY OF APPLICATION, I.A.NO.3 OF
2021 SUBMITTED BY THE PETITIONER FOR
AMENDING THE PLAINT IN O.S.NO.14 OF 2019.
EXHIBIT P5 TRUE COPY OF APPLICATION, I.A.NO.4 OF
2021 SUBMITTED BY THE PETITIONER IN
O.S.NO.14 OF 2019.
EXHIBIT P6 TRUE COPY OF ORDER DATED 19/1/2021 OF THE
MUNSIFF COURT, IDUKKI IN I.A.NO.4 OF 2021
IN O.S.NO.14 OF 2019.
SSK/17/02 //TRUE COPY// P.A. TO JUDGE
