The Kerala High Court disposed of a writ petition challenging the rejection of an application to appoint an Advocate Commissioner. The court held that prior commission reports and the nature of the easement right negated the need for fresh measurement despite a partial property sale.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 4TH DAY OF JULY 2016/13TH ASHADHA, 1938
OP(C).No. 1347 of 2015 (O)
--------------------------IA NO. 2485/2014 IN OS NO. 427/2013 OF MUNSIFF COURT, CHITTUR
PETITIONER/PLAINTIFF :
KESAVAN, S/O.VELAN, AGED 75 YEARS RESIDING AT KIZHAKKETHARA, THOTTAMKARAYIL, KIZHAKKETHARA AMSOM, KOLLANKODE VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA
RESPONDENT/DEFENDANT :
SWAYAMPRABHA W/O.BALACHANDRAN, AGED 60 YEARS RESIDING AT THOTTAMKARA, KIZHAKKETHARA AMSOM, KOLLANKODE VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT-678 101.
BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU M.P.
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Mn
...2/-
OP(C).No. 1347 of 2015 (O)
APPENDIX
PETITIONER(S)' EXHIBITS :
EXT. P1TRUE COPY OF THE PLAINT IN OS NO.427/13 ON THE FILE OF THE COURT OF THE MUNSIFF AT CHITTUR.
EXT. P2TRUE COPY OF THE WRITTEN STATEMENT PREFERRED BY THE RESPONDENT IN OS NO.427/13.
EXT. P3TRUE COPY OF IA NO.2485/2014 SEEKING APPOINTMENT FOR A ADVOCATE COMMISSIONER. EXT. P4TRUE COPY OF THE COUNTER AFFIDAVIT PREFERRED BY THE RESPONDENTS.
EXT. P5TRUE COPY OF THE ORDER DATED 21.2.2015 IN IA NO.2485/14 IN OS NO.427/13
RESPONDENT(S)' EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
Mn
K.HARILAL, J.
O.P.(C). No.1347 of 2015
Dated this the 4th day of July, 2016
JUDGMENT
~ ~ ~ ~ ~
The petitioner is the plaintiff in O.S.No.427/13 on the files of the Munsiff's Court, Chittur. The aforesaid suit is one for declaration of an easement right of way by prescription and necessity and also for a prohibitory injunction restraining the respondent from obstructing the pathway. The respondent filed a written statement disputing the identity of the property and the pathway. That apart, during the pendency of the suit, the petitioner had sold away a portion of the plaint schedule property. Therefore, the remaining property also has to be ascertained by the Advocate Commissioner. In that circumstance, the petitioner filed I.A. No.2485/14 seeking appointment of an Advocate Commissioner to measure out the plaint schedule property on the basis
OP(C).1347/15 :2:
of the Partition Deed as regards the purchase certificate obtained by him.
OP(C).1347/15 :3:
simplicitor restraining the respondent from obstructing the right of way. It is true that the respondent filed a written statement disputing the identity of the plaint schedule property. But, it is to be remembered that along with the commission application, the petitioner had filed an application seeking appointment of an Advocate Commissioner to ascertain the nature and lie of both properties, ie. Servient tenaments and dominant tenaments, and to ascertain the lie of the pathway on which the petitioner claims right of way by prescription and necessity. Even if the respondent disputes the identity of the property, the commission report describing the identity of the property and the nature and lie of the pathway, if any, are sufficient to determine the question in controversy involved in a simple suit for injunction. In the instant case, the commission report, describing the description of the property and the nature and lie of the pathway, is available on record and there is no need to measure
OP(C).1347/15 :4:
the property by a survey commission to establish the easement right of way by prescription or necessity.
has alienated some property after the filing of the suit and that circumstance warranted measurement of the property also cannot be accepted. If the petitioner had sold away some extent of the property, he is well aware of the extent of the property sold away by him and the remaining property will be there and there is no need to appoint a survey commission to measure out the present extent of the property. That apart, the easement is a right that run along with the land irrespective of the transfer of property. Therefore, the trial court is justified in rejecting the application seeking appointment of a survey commission. Hence this original petition is disposed of with the above observations.
K. HARILAL, JUDGE
okb.5/7
2 issues framed by the court
Whether appointment of an Advocate Commissioner is necessary to measure property in a suit for declaration of easement right of way.
Whether the sale of a portion of the property by the petitioner warrants fresh measurement by a survey commission.
Kesavan
Swayamprabha
K.Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
