A survey commission for measuring an easement is necessary only when pleadings genuinely require precise measurements; otherwise, it may cause unnecessary delays.

JUDGMENT :

Additional defendant No.3 in a suit challenges the order issuing a Survey Commission to measure and identify a pathway over which the plaintiff claimed the right of easement by prescription in this proceeding.

2. The plaintiff instituted the original suit seeking a declaration of prescriptive easement right over the property scheduled as ‘C’ in the plaint. The plaintiff is the owner of the plaint ‘A’ schedule property, the dominant tenement. Defendants are the owners of plaint ‘B’ schedule property, the servient tenement. ‘C’ schedule property, the way, runs through the ‘B’ schedule property. It is averred that the way has a length of 36.8ms and width of 3ms.

3. At the time of institution of the suit, the plaintiff applied for a Commission. The Commissioner prepared Ext.P4 commission Report and rough sketch. Later, on the application of defendant No.1, the Commissioner prepared Ext.P5 commission report and rough sketch.

4. The plaintiff filed Ext.P6 application contending that Exts.P4 and P5 commission reports and rough sketches do not contain the precise measurements regarding ‘C’ schedule way. The trial Court allowed the application and issued a Commission consisting of an Advocate Commissioner and a Surveyor as per Ext.P8 order. This order is under challenge in this Original Petition.

5. I have heard the learned counsel for the petitioner/additional defendant No.3 and the learned counsel for the respondents.

6. The petitioner contended that a Survey Commission based on an imaginary line is absolutely unnecessary in a suit based on easement right. The learned counsel submitted that Exts.P4 and P5 commission reports and rough sketches contain the necessary requirements to identify the way claimed by the plaintiff. It is submitted that the attempt of the plaintiff is to prolong the matter. The learned counsel relied on Madhavan v. Narayanankutti and Others [2019 (4) KLT 208] in support of his contentions.

7. The learned counsel for the plaintiff submitted that the defendants specifically challenged the nature, lie and existence of the ‘C’ schedule way. The plaintiff has to take steps for measuring the property with the aid of an expert in survey so as to identify the exact location, measurement etc. of the way. The learned counsel submitted that the contention of the learned counsel for the petitioner that it is absolutely unnecessary to survey the property to identify the way in a suit based on easement cannot be sustained. The learned counsel submitted that though there may be visible physical materials to identify the way, the precise measurements regarding the way must be incorporated in a sketch to seek an effective enforcible decree. The learned counsel relied on Edakudi Raveendran @ Ravi and Others v. Lohithakshan and Another [2017 (2) KLT 865] in support of his contentions.

7. The plaintiff claims the right of easement by prescription over the plaint ‘C’ schedule property. The plaint ‘C’ schedule property is described as a way having a length of 36.8ms and width of 3ms that commences from the south east portion of the plaint ‘A’ schedule property and runs through the plaint ‘B’ schedule property.

8. In the Written Statement, the defendants specifically denied the description of plaint ‘C’ schedule way. The defendants denied even the existence of the way. The rough sketch attached to Ext. P4 report does not contain the specific measurements regarding the way. The rough sketch attached to Ext.P5 report contains the descriptions of the way but not precisely. In Edakudi Raveendran, the learned Single Judge of this Court held that in order to grant a relief of declaration of easement by prescription over a way, there should be a plan having sufficient measurements, showing the actual lie of the properties and the existing pathway, prepared by a competent surveyor. In that case, the Court refused to grant relief for the reason that the plaintiffs failed to produce a plan showing the location, measurements, and lie of the p