Mathew vs Thankachan

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.

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.

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 a suit which is filed

for determination of right to pathway disputed in the suit by the parties.

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.