Rajamma vs Thomas @Pappachan And Ors

The dismissal of an application for issuance of a survey commission is under challenge in this original petition by the plaintiff.

The dispute involved relates to a right of way. The plaintiff claims to have obtained an easement by grant over plaint item no.3 way. The plaint item

no.3 is a portion of plaint item no.2 which admittedly belongs to the second defendant. Plaint item no.2 lies a road.

The plaintiff filed IA 2178/2019 seeking issuance of a survey commission to have the property of the plaintiff (plaint item 1) measured with

reference to the document of title and also a survey of plaint item nos.2 and 3.

As rightly held by the trial court, in the nature of the claim made, measurement of plaint item no.1 is not necessary. However, in so far as the

prayer regarding plaint item no.3 is concerned, it would only be in the interests of the plaintiff that plaint item no.3 as scheduled in the plaint, over

which the plaintiff claims a right of way, be surveyed and plotted in a plan to be prepared by the surveyor. This would only enable the plaintiff to

secure a proper decree if ultimately he succeeds at trial. The order impugned is liable to be interfered with to the above extent.

In the result, this original petition is allowed. The order impugned is set aside. IA 2178/2019 will stand allowed to the limited extent of appointing a

Commissioner with a surveyor to have the plaint item no.3 as scheduled in the plaint to be surveyed and plotted in a plan. I make it clear that I have

not expressed anything on the merits of the rival contentions regarding the right of way claimed.