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Kerala High Court
Rani vs Tom Immanuel on 6 December, 2025
O.P.(C) No. 1845 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K. NATARAJAN
SATURDAY,THE 6TH DAY OF DECEMBER 2025/15TH AGRAHAYANA, 1947
OP(C) NO. 1845 OF 2019
AGAINST THE OS NO.575 OF 2018 OF MUNSIFF COURT,
MUVATTUPUZHA
PETITIONER/S:
1 RANI
AGED 55 YEARS
W/O.LONACHAN, PITTAPPILLIL HOUSE,
ELAMAKKARA KARA, KOCHI CORPORATION,
KANAYANNOOR TALUK.
2 SANTHI
AGED 31 YEARS
D/O.LONACHAN,PITTAPPILLIL HOUSE,
ELAMAKKARA KARA, KOCHI CORPORATION,
KANAYANNOOR TALUK.
3 VIVEK
AGED 30 YEARS
S/O.LONACHAN, PITTAPPILLIL HOUSE,
ELAMAKKARA KARA, KOCHI CORPORATION,
KANAYANNOOR TALUK.
4 C.D.VINCENT,
AGED 71 YEARS
S/O.THEVACKAPPARAMBIL HOUSE,
PAREEKKANI BHAGOM, KUTTAMANGALAM VILLAGE.
BY ADVS.
SHRI.M.P.RAMNATH
SHRI.P.RAJESH (KOTTAKKAL)
SRI.K.J.SEBASTIAN
SEI.M.VARGHESE VARGHESE
SMT.UMA R.KAMATH
O.P.(C) No. 1845 of 2019
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SMT.S.SANDHYA
SHRI.BEPIN PAUL
SRI.SHALU VARGHESE
SRI.ANTONY THARIAN
RESPONDENT/S:
1 TOM IMMANUEL
AGED 36 YEARS
S/O.IMMANUEL THOMAS, MALAYIL HOUSE,
PIRAKKUNNAM KARA, KUTTAMANGALAM VILLAGE
2 MATHEW @ MANOJ IMMANUEL,
AGED 31 YEARS
S/O.IMMANUEL THOMAS, MALAYIL HOUSE,
PIRAKKUNNAM KARA, KUTTAMANGALAM VILLAGE.
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
06.12.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C) No. 1845 of 2019
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JUDGMENT
(Dated this the 6th day of December, 2025)
This petition is filed by the petitioners/defendants
by challenging the order dated 27.06.2019 passed by the
Munsiff Court, Muvattupuzha in I.A.No.1682/2019 in
O.S.No.575/2018, filed by the petitioners for appointing a
fresh commissioner.
2. Heard the arguments of the learned counsel for
the petitioners. Notice served on the respondents, but
unrepresented.
3. The case of the petitioners is that the
respondents filed the suit for declaring the easement right
by grant, and along with the suit, an application,
I.A.No.3728/2018 filed by the respondents for appointing
an Advocate Commissioner. A commissioner was appointed
who has filed report which was an ex-parte commission
report. Thereafter, the petitioners filed I.A. No. 1025/2019
seeking appointment of a new commissioner. However, the
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trial court reappointed the same commissioner to revisit the
site. The commissioner filed Ext. P4 without addressing the
petitioners' grievances and failed to prepare the sketch
requested in I.A. No. 1025/2019. Therefore, the petitioners
filed another application, I.A. No. 1682/2019, seeking the
appointment of a fresh commissioner. However, that
application was rejected. Hence, the petitioners are before
this Court.
4. The learned counsel for the petitioners contended
that the commissioner appointed for the second time did
not prepare the sketch properly and did not answer the
petitioners' questions. But, the commissioner has only
relied on the work memo of the respondents. The sketch
produced herein as per Ext.P4 is not showing the actual
way which was already existing on the extreme eastern
side of the sketch, but only showed the way as per the
request of the plaintiffs. Therefore, the same shall be
remitted back and a fresh commissioner shall be appointed.
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5. Having heard the arguments and also verified the
commission report and the sketch produced herein as
Ext.P4. The sketch is incomplete sketch and not prepared
properly showing the actual picture on the eastern side of
the sketch. It is only mentioned about the disputed place
and the request made by the plaintiffs in the work memo.
But, there is no answer with respect to the requests made
by the applicants/defendants in Ext.P3. In order to come to
right conclusion and determination of the rights of the
parties, it is necessary for the trial court to appoint a fresh
commissioner to verify and file a comprehensive report
along with the detailed sketch. Whereas, the trial Court
rejected the application only on the ground that this is the
third application and appointing a commissioner for the
third time, does not arise and the application was
dismissed, which is not correct.
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5. Therefore, I am of the view that the order under
challenge required to be set aside and remit back for fresh
consideration.
6. Accordingly, the original petition is allowed.
i. The order dated 27.06.2019 passed by the
Munsiff Court, Muvattupuzha in
I.A.No.1682/2019 in O.S.No.575/2018 is
hereby set aside.
ii. The IA No.1682/2019 is restored and now
the case is said to be pending before the
Munsiff Court, Kothamangalam as OS
No.539/2019. Therefore, the Munsiff
Court, Kothamangalam is directed to
appoint a fresh commissioner for filing the
comprehensive report along with the
detailed sketch for the purpose of
determining the rights of the parties.
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iii. Exhibit P3 application, I.A.No.1025/2019 is
restored and remitted back for fresh
consideration.
iv. The trial court shall make an endeavor to
get the report from the commissioner as
early as possible and dispose the matter as
it is one of the oldest case.
Sd/-
K. NATARAJAN
JUDGE
S.M.K.
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APPENDIX OF OP(C) NO. 1845 OF 2019
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PLAINT IN
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONERS
EXHIBIT P3 TRUE COPY OF THE COMMISSION APPLICATION
EXHIBIT P4 TRUE COPY OF THE SAID COMMISSION REPORT
EXHIBIT P5 TRUE COPY OF THE OBJECTION
EXHIBIT P6 TRUE COPY OF THE APPLICATION FOR
APPOINTMENT OF ANOTHER ADVOCATE
COMMISSIONER
EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE
RESPONDENTS TO THE SAID COMMISSION
APPLICATION
EXHIBIT P8 TRUE COPY OF THE APPLICATION IA
NO.660/2019 CLAIMING FOR RESTORATION OF
THE ALLEGED PATHWAY AS ON 5/7/2018 FILE
BY THE RESPONDENTS.
EXHIBIT P9 TRUE COPY OF THE DETAILED OBJECTION
FILED BY THE PETITIONERS AGAINST EXT.P8
EXHIBIT P10 TRUE COPY OF THE ORDER IS RECEIVED ONLY
8/7/2019
