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IN THE HIGH COURT OF KERALA AT ERNAKULAM
SUNIL THOMAS, J.
Madhavan, S/o. Changamkuzhi Late Karappan - Appellant
Versus
Narayanankutti, S/o. Kizhakekara Vellatheri Vilasini Amma and Ors - Respondent
OP(C).No.2038 of 2017
Decided On : 19-08-2019
Constitution of India- Art.227-Whether in a suit for injunction simpliciter, appointment of survey commissioner to measure out the property to prepare a sketch is essential prerequisite for granting the relief- Measurements with the help of surveyor becomes necessary, only if necessity for measurement of property genuinely arises from the pleadings of parties and if such an issue is raised. Unnecessary measurement with Surveyor causes unwanted monetary expenses for the parties and causes avoidable delay in conclusion of the litigation.
Statement of facts:
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.
Finding of the court:
The property has to be identified not on the basis of the survey plan, because survey line is imaginary and people identify and enjoy properties not on the basis of imaginary lines, but on physical boundaries like wall, fence, row of trees, difference in level, boundary stones etc. If there is no such line separating the properties of the plaintiff and the defendant, the proper remedy is to file a suit for fixation of boundary- In the claim petition, a survey commission was not required, since the only prayer was an injunction simpliciter portion of the B schedule covered by Ext.P5 overlaps with claim petition B schedule property, a survey commission can be considered at that stage.
Result: Dismissed
Based on the provided legal document, the key points are as follows:
In a suit for perpetual and mandatory injunction based on possession, it is essential for the plaintiff to prove that the property has well-defined physical boundaries that can be identified from adjoining properties. The identification of the property should be based on tangible physical boundaries such as walls, fences, trees, boundary stones, or differences in level, rather than on survey lines, which are imaginary [judgement_subject].
The appointment of a survey commissioner to measure the property and prepare a sketch is not an automatic or essential prerequisite in a suit for injunction simpliciter. Such measurement becomes necessary only if the pleadings genuinely raise the need for it, such as when the precise boundaries are in dispute or when the physical identification of the property is unclear. Unnecessary measurement can cause avoidable expenses and delays (!) .
The primary method of establishing the boundaries and the nature of the easement or possession is through physical, visible marks on the land and local inspection, supported by reliable evidence. Detailed physical features and continuous user over a long period are crucial in establishing easements by prescription or necessity. A survey based on imaginary lines is considered unnecessary in such cases (!) (!) .
In cases where the dispute involves obstruction, encroachment, or construction within the claimed easement or boundary, an effective decree can be granted based on local inspection reports and physical evidence alone, without the need for a surveyor’s measurement or a survey plan, unless the pleadings explicitly indicate the necessity for such measurement (!) .
The necessity for measurement with a surveyor arises only if the pleadings or the circumstances genuinely require it. Denying the property’s identity or boundary issues alone should not automatically lead to a survey, nor should it delay proceedings. The goal is to avoid unnecessary expenses and delays that often hinder the timely conclusion of injunction suits (!) .
The law emphasizes that physical and visible evidence should be the basis for establishing boundaries and rights related to easements or possession, rather than imaginary survey lines, unless a genuine need for precise measurement is demonstrated (!) (!) .
If a later stage reveals overlapping boundaries or claims, a survey commission can be considered to clarify the boundaries, but such measurement is not required at the initial stage if the physical boundaries are sufficiently clear and established through local inspection and evidence (!) .
The decision underscores that the correct legal approach is to rely on tangible physical features and local inspection rather than on imaginary survey lines, aligning with established legal principles that prioritize tangible evidence over survey-based measurements in disputes related to possession and boundaries (!) (!) .
These points collectively highlight the importance of physical, tangible evidence in boundary and possession disputes and caution against unnecessary and costly survey procedures unless genuinely warranted by the pleadings and circumstances.
JUDGMENT :
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 (2) KLT 865). 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.
4. The above order is under challenge in this original petition. The apprehension of the original petitioner is that in the light of the law laid down in Raveendran's case, there is every likelihood of his claim petition being dismissed at a later stage, on the ground that an effective order cannot be passed in the claim petition, in the absence of a commission report with a sketch prepared by the competent surveyor.
5. Evidently, the claim petition was for an injunction
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