The necessity for appointing a Surveyor to identify an easement pathway is established when pleadings genuinely require precise measurements, overruling prior court dismissal.

JUDGMENT

The challenge in this Original Petition is to Ext.P6 order by which the Trial Court dismissed an application seeking appointment of a Surveyor to set out a way over which the plaintiffs raised right of easement by grant.

2. The plaintiffs instituted the Original Suit seeking declaration, mandatory injunction, permanent prohibitory injunction and easement right over a pathway.

3. An Advocate Commissioner visited the property and filed a report and rough sketch.

4. The plaintiffs pleaded that the report of the Commissioner and the sketch are not sufÏcient to identify the disputed way. Therefore, the plaintiffs filed I.A.No.1153/2019 seeking appointment of a Surveyor to measure out the plaint properties and to identify the way. The Trial Court, relying on Madhavan v. Narayanankutti and others [2019 (4) KLT 208], came to a conclusion that unnecessary measurement with the assistance of a Surveyor may cause delay in the conclusion of the litigation. The learned Munsiff on this ground dismissed the application seeking appointment of an Advocate Commissioner and Special Commissioner/Surveyor.

4. I have heard the learned counsel for the petitioners and the learned counsel for the respondents.

5. The learned counsel for the petitioners made available the written statement filed by the contesting defendants. The learned counsel brought to my notice that the contesting defendants specifically denied the existence of the way, in Paragraph 4 of the written statement. The contesting defendants raised a contention that the alignment of the way is incorrect. The learned counsel for the petitioners, therefore submitted that this is a case where identification of the way with the assistance of a Surveyor is highly essential.

6. The learned counsel for the contesting respondents resisted the application contending that the Commissioner earlier appointed has submitted a report and sketch which is more than enough to identify the way in dispute.

7. This Court has recently in Shahulhameed v. Abdul Latheef [2025 KHC OnLine 135], considered the ratio of Madhavan v. Narayankutty and others (supra) In Shahulhameed this Court observed thus:-

“9. In Madhavan v. Narayanankutti and Others, this Court observed that when a person claims right of easement over another man’s land, the nature of the right claimed and factual ingredients constituting the evolution of the right, the details of its user, the length, width, lie and location of the easement have to be precisely and meticulously pleaded and established in Court. The Court further observed that easement by prescription being a right which is evolved by exercise of continuous user on a definite portion of the land over a long period of time, the easement and nature of its user are bound to be evident by well defined visible physical marks available on the land. The learned Single Judge further opined that this can be established by a local inspection by a Commissioner. The learned Single Judge proceeded to hold that a Survey Commission based on an imaginary line is absolutely unnecessary in a suit based on easement or a simple suit for an injunction based on the easement. This Court in paragraph 8 of the judgment further held that measurements with the help of a surveyor becomes necessary only if the necessity for measurement of property genuinely arises from the pleadings of parties. Madhavan v. Narayanankutti and Others therefore has not laid down the law that measurement of the properties, including the way, with the help of a surveyor is always unnecessary. The ratio in Madhavan v. Narayanankutti and Others is that measurements with the help of surveyor becomes necessary only if the necessity for measurement of property genuinely arises from the pleading of parties. The plaintiff has not requested the identification of the property based on a survey plan. The plaintiff requested the preparation of a rough sketch drawn to the scale so as to precisely and meticulously identify the details of the way v