Kerala High Court
Emmanuel Mar Thoma Church vs Malankara Mar Thoma Syrian Church on 18 February, 2025
Author: K.Babu
Bench: K. Babu
2025:KER:13358
O.P.(C)No.1625 of 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
OP(C) NO. 1625 OF 2021
AGAINST THE ORDER DATED 14.09.2021 IN IA 1153/2019 IN
OS NO.64 OF 2015 OF MUNSIFF COURT,CHENGANNUR
PETITIONERS/PETITIONERS IN IA NO.1153/2019 AND PLAINTIFFS
IN OS NO.64/2015:
1 EMMANUEL MAR THOMA CHURCH,
CHERIYANAD, ALAPPUZHA DISTRICT, REPRESENTED BY
ITS TRUSTEE MR.P. VARGHESE, S/O.G. ABRAHAM, MARY
COTTAGE, CHERIYANAD WEST MURI, CHERIYANAD
VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT.
2 TRUSTEE (FINANCE ) OF EMMANUAL
MAR THOMA CHURCH, CHERIYANAD, ALAPPUZHA DISTRICT,
P. VARGHESE, S/O. G. ABRAHAM MARY COTTAGE,
CHERIYANAD WEST MURI, CHERIYANAD VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA DISTRICT.
3 TRUSTEE (AACOUNTS) OF EMMANUEL MART THOMA CHURCH,
CHERIYANAD, ALAPPUZHA DISTRICT, K.C. THOMAS, S/O.
CHACKO, PEACE COTTAGE, CHERIYANAD WEST MURI,
ALAPPUZHA DISTRICT.
4 SECRETARY,
EMMANUEL MAR THOMA CHURCH, CHERIYANAD, ALAPPUZHA
DISTRICT, PROFESSOR LALU VARGHESE, S/O.K.V.
VARGHESE, KUTTIYIL VEETTIL, CHERIYANAND WEST
MURI, ALAPPUZHA DISTRICT .
BY ADVS.
SRI.V.PHILIP MATHEW
SRI.GIBI.C.GEORGE
SRI.SRI.E.RADHAKRISHNAN
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O.P.(C)No.1625 of 2021
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AMAL PARTHASARADHY
RESPONDENTS/RESPONDENTS IN IA NO.1153/2019 AND DEFENDANTS
IN OS NO.64/2015:
1 MALANKARA MAR THOMA SYRIAN CHURCH,
REPRESENTED BY ITS METROPOLITAN, POOLATHEEN,
THIRUVALLA, PATHANAMTHITTA DISTRICT 689 101.
2 DIOCESAN BISHOP,
CHENGANNUR MAVELIKKARA DIOCESE, MALANKARA MAR
THOMA SYRIAN CHURCH, OLIVET ARAMANA, CHENGANNUR,
ALAPPUZHA DISTRICT 689 12.
3 ST. THOMAS MAR THOMA CHURCH,
PULIYOOR, ALAPPUZHA DISTRICT 689 510,
REPRESENTED BY ITS VICAR.
4 TRUSTEE (FINANCE),
ST. THOMAS CHURCH PULIYOOR CAPTAIN B MATHEW,
JOSE BAHVAN, PULIYOOR MURI, PULIYOOR VILLAGE,
CHENGANNUR TALUK, ALAPPUZHA DISTRICT 689 510.
5 TRUSTEE (ACCOUNTS),
ST. THOMAS MAR THOMA CHURCH, PULIYOOR, C.V.
MATHEW, CHIRATHARA MATHEWS VILLA, ALA NORTH MURI,
ALA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT
689 510.
6 SECRETARY,
ST. THOMAS MAR THOMA CHURCH, PULIYOOR,
M C. CHERIAN, KOVOOR MALAYIL THEKKETHIL,
CHERIYANAD EAST MURI, CHERIYANAD VILLAGE,
ALAPPUZHA DISTRICT 689 510.
BY ADVS.
SRI.GEORGE CHERIAN (SR.)
SRI.G.HARIHARAN
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
SRI.ALEXY AUGUSTINE
SRI.GEORGE A.CHERIAN
SRI.PRAVEEN.H.
SMT.K.S.SMITHA
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O.P.(C)No.1625 of 2021
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SRI.V.R.SANJEEV KUMAR
SRI.JOSEPH GEORGE (ALA)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
18.02.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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O.P.(C)No.1625 of 2021
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K.BABU, J.
-------------------------------------------
O.P.(C) No.1625 of 2021
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Dated this the 18th day of Februrary, 2025
JUDGMENT
The challenge in this Original Petition is to Ext.P6 order
by which the Trial Court dismissed an application seeking
appointment of a Surveyor to set out a way over which the
plaintiffs raised right of easement by grant.
2. The plaintiffs instituted the Original Suit seeking
declaration, mandatory injunction, permanent prohibitory
injunction and easement right over a pathway.
3. An Advocate Commissioner visited the property
and filed a report and rough sketch.
4. The plaintiffs pleaded that the report of the
Commissioner and the sketch are not sufficient to identify
the disputed way. Therefore, the plaintiffs filed
I.A.No.1153/2019 seeking appointment of a Surveyor to
measure out the plaint properties and to identify the way.
The Trial Court, relying on Madhavan v. Narayanankutti
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and others [2019 (4) KLT 208], came to a conclusion that
unnecessary measurement with the assistance of a
Surveyor may cause delay in the conclusion of the litigation.
The learned Munsiff on this ground dismissed the application
seeking appointment of an Advocate Commissioner and
Special Commissioner/Surveyor.
4. I have heard the learned counsel for the
petitioners and the learned counsel for the respondents.
5. The learned counsel for the petitioners made
available the written statement filed by the contesting
defendants. The learned counsel brought to my notice that
the contesting defendants specifically denied the existence
of the way, in Paragraph 4 of the written statement. The
contesting defendants raised a contention that the
alignment of the way is incorrect. The learned counsel for
the petitioners, therefore submitted that this is a case
where identification of the way with the assistance of a
Surveyor is highly essential.
6. The learned counsel for the contesting
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respondents resisted the application contending that the
Commissioner earlier appointed has submitted a report and
sketch which is more than enough to identify the way in
dispute.
7. This Court has recently in Shahulhameed v.
Abdul Latheef [2025 KHC OnLine 135], considered the
ratio of Madhavan v. Narayankutty and others (supra).
In Shahulhameed this Court observed thus:-
"9. In Madhavan v. Narayanankutti and Others, this
Court observed that when a person claims right of
easement over another man's land, the nature of the 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. The Court
further observed that 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 nature of its user are bound to be evident
by well defined visible physical marks available on the
land. The learned Single Judge further opined that this can
be established by a local inspection by a Commissioner.
The learned Single Judge proceeded to hold that a Survey
Commission based on an imaginary line is absolutely
unnecessary in a suit based on easement or a simple suit
for an injunction based on the easement. This Court in
paragraph 8 of the judgment further held that
measurements with the help of a surveyor becomes
necessary only if the necessity for measurement of
property genuinely arises from the pleadings of parties.
Madhavan v. Narayanankutti and Others therefore
has not laid down the law that measurement of the
properties, including the way, with the help of a surveyor is
always unnecessary. The ratio in Madhavan v.
Narayanankutti and Others is that measurements with
the help of surveyor becomes necessary only if the
necessity for measurement of property genuinely arises
from the pleading of parties. The plaintiff has not
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requested the identification of the property based on a
survey plan. The plaintiff requested the preparation of a
rough sketch drawn to the scale so as to precisely and
meticulously identify the details of the way vis-a-vis the
length, width, lie, location, etc. I am perfectly in agreement
with the contention of the learned counsel for the
petitioner that the Court need not always insist on a plan
having sufficient measurement to seek a decree based on
easement. However, in cases where the necessity of
measurement of the property genuinely arises, the details
of the way vis-a-vis the length, width, lie, location, etc., on
the servient tenement can be ordered to be ascertained
and incorporated in a sketch."
8. This Court in Thankappan (Died) v. Rajan
(Died) Legal Heirs impleaded [2025 KHC OnLine 122],
held that it is always better to have a survey plan showing
the location of dominant and servient heritages and the
portion of servient heritage through which easement is
claimed.
9. I have gone through the rival contentions based
on the pleadings set up by the parties. I reiterate the view
that the Court need not always insist on a plan having
sufficient measurement to seek a decree based on
easement. This is a case where the plaintiffs have
established the necessity to prepare a sketch drawn to scale
to ascertain the nature and lie of the way on which they
have raised a claim of easement. Therefore, the order
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impugned is liable to be set aside. Order dated 14.09.2021
in I.A.1153/2019 in O.S.No.64/2015 on the file of the
Munsiff's Court, Chengannur stands set aside. I.A.1153/2019
is allowed. The Trial Court shall appoint an Advocate
Commissioner and Surveyor to ascertain the matter sought
to be elucidated in Ext.P3 application.
The Original Petition is allowed as above.
Sd/-
K.BABU
JUDGE
VPK
2025:KER:13358
APPENDIX OF OP(C) 1625/2021
PETITIONER EXHIBITS
Exhibit P1 COPY OF PLAINT IN O.S. NO. 64/2015 FILED
BY THE PETITIONERS BEFORE THE MUNSIFF
COURT CHENGANNUR.
Exhibit P2 COPY OF THE COMMISSION REPORT AND
MAHAZAR SUBMITTED BY ADV BENNY
PRABHAKARAN IN O.S. NO. 64/2015.
Exhibit P3 COPY OF I.A. NO. 1153/ 19 FIELD BY THE
PETITIONERS IN O.S. NO. 64/2015.
Exhibit P4 COPY OF ORDER 22.07.2019 PASSED BY THE
MUNSIFF COURT, CHENGANNUR IN I.A. NO.
1153/2019 IN O.S. NO. 64/2015.
Exhibit P5 COPY OF JUDGMENT DATED 03.08.2021 PASSED
IN OPC NO. 2624/2019.
Exhibit P6 COPY OF ORDER DATED 14.09.2021 PASSED BY
THE MUNSIFF COURT, CHENGANNUR IN I.A.
NO. 1153/2019 IN O.S. NO. 64/2015.
