J U D G M E N T

Dated this the 13^th day of February, 2024 Petitioners herein are the respondents in A.S.No.8/2013 on the files of the Sub Court, Karunagapally. They are aggrieved by Ext.P7 order, which allowed Ext.P5 application for issuance of a Commission, when the matter was ripe for hearing the appeal.

2. Heard the learned counsel for the petitioners and the respondents 1 to 4. Other respondents were not deleted from the array of parties, on the premise that they are not contesting respondents.

3. Learned counsel for the petitioners would submit that, the suit was one for injunction, preferred by the petitioners herein, as O.S.No.358/2009 before the Munsiff's Court, Karunagapally. In the suit, the respondents/

defendants preferred a counter claim for declaration of easement by prescription over counter claim D schedule pathway, as also, for an injunction. Plaint A & B schedule properties are properties of the plaintiffs. Counter claim C schedule property belongs to the defendants and counter claim D schedule is the disputed pathway. After trial, the suit was allowed and the counter claim was dismissed, challenging which two appeals were preferred before the Sub Court, Karunagapally, namely A.S.No.8/2013 and A.S.

No.81/2015.

4. The essential apprehension raised by the learned counsel for the petitioners is that, the commission application, being allowed at the time when the appeals are ripe for hearing, would ultimately lead to remand of the suit to the trial court, in which case, the plaintiffs reliefs will get stalled and delayed. Another aspect pointed out by the learned counsel is that, the requirements of adducing additional evidence under Order XXXXI, Rule 27 are not met in the instant facts, since, allowing a commission application would amount to additional evidence being let in.

5. Per contra, learned counsel for the respondent would submit that, the application for issuance of commission was made only in accord with the dictum laid down by a learned Single Judge of this Court in Edakudi Raveendran @ Ravi and Others v. Lohithakshan and another [2017 (2) KLT 865]. Going by paragraph no.15 of that judgment, this Court held that, in order to grant a relief for declaration of easement by prescription, there should be a plan, having sufficient measurement showing the actual lie of the properties and existing pathway, prepared by a competent surveyor, in the absence of which a decree cannot be passed. The application being preferred in the light of the said dictum, no interference, whatsoever, is warranted to Ext.P7 order, is the submission made.

6. Having heard the learned counsel appearing on both sides, this Court cannot find any serious infirmity or illegality with respect to Ext.P7 order, warranting interference under Article 227 of the Constitution. As rightly pointed out by the learned counsel for the respondent, the application was necessitated, when the judgment in Raveendran(supra) was rendered in the year 2017, with the above referred observations as contained in paragraph no.15 of the judgment. It is only to plug such a technical snag that the application was filed. Inasmuch as, the learned Judge held that, without a plan indicating sufficient measurement of the pathway prepared by a competent surveyor, a decree cannot be passed, Ext.P5 application for issuance of commission cannot be found fault with. Nor could it be said that Ext.P7 order is flawed in any respect.

7. However, this Court notice that by virtue of Ext.P5 application, the respondent herein have sought to measure plaint A and B schedule properties, as also, counter claim C and D schedule properties. Having regard to the fact that, such an application has been preferred at the appellate stage and also in view of the purpose behind the dictum laid down in Raveendran(supra), this Court is of the opinion that the disputed pathway, which has been scheduled as counter claim D schedule property alone need be measured. The obvious purpose is to have clarity wit