MADHAVAN Vs. NARAYANANKUTTI

JUDGEMENT

(1.) 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 8th 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 7th 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 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 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 KHC 325 : 2017 (2) KLT 865 : 2017 (2) KLJ 449 : ILR 2017 (2) Ker. 774. 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.