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2025 Supreme(Online)(Ker) 56155
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. NATARAJAN, J
RANI, SANTHI, VIVEK, C.D.VINCENT – Appellant
Versus
TOM IMMANUEL, MATHEW @ MANOJ IMMANUEL – Respondent
OP(C) NO. 1845 OF 2019 | OS NO.575 OF 2018
For the Appellants/Petitioners: M.P.RAMNATH, P.RAJESH (KOTTAKKAL), K.J.SEBASTIAN, SEI.M.VARGHESE, VARGHESE, UMA R.KAMATH, S.SANDHYA, BEPIN PAUL, SHALU VARGHESE, ANTONY THARIAN
The petitioners are entitled to a fresh commissioner's report due to inadequacies in previous sketches related to easement rights.
Headnote:The petition challenges the order by the Munsiff Court regarding the appointment of a commissioner in an easement rights case. The court found the previous sketches unsatisfactory and highlighted the need for a comprehensive report to determine the rights of the parties. The trial court's rejection of the application was deemed incorrect. The original petition is allowed, the prior order is set aside, and directions are provided for further proceedings.
| Table of Content |
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| 1. challenges regarding the commissioner's appointment and the need for a fresh report. (Para 1 , 2 , 3 , 4) |
| 2. court's observation on the necessity of a comprehensive evaluation. (Para 5) |
JUDGMENT
(Dated this the 6th day of December, 2025)
This petition is filed by the petitioners/defendants by challenging the order dated 27.06.2019 passed by the Munsiff Court, Muvattupuzha in I.A.No.1682/2019 in O.S.No.575/2018, filed by the petitioners for appointing a fresh commissioner.
2. Heard the arguments of the learned counsel for the petitioners. Notice served on the respondents, but unrepresented.
3. The case of the petitioners is that the respondents filed the suit for declaring the easement right by grant, and along with the suit, an application, I.A.No.3728/2018 filed by the respondents for appointing an Advocate Commissioner. A commissioner was appointed who has filed report which was an ex-parte commission report. Thereafter, the petitioners filed I.A. No. 1025/2019 seeking appointment of a new commissioner. However, the trial court reappointed the same commissioner to revisit the site. The commissioner filed Ext. P4 without addressing the petitioners' grievances and failed to prepare the sketch requested in I.A. No. 1025/2019. Therefore, the petitioners filed another application, I.A. No. 1682/2019, seeking the appointment of a fresh commissioner. However, that application was rejected. Hence, the petitioners are before this Court.
4. The learned counsel for the petitioners contended that the commissioner appointed for the second time did not prepare the sketch properly and did not answer the petitioners' questions. But, the commissioner has only relied on the work memo of the respondents. The sketch produced herein as per Ext.P4 is not showing the actual way which was already existing on the extreme eastern side of the sketch, but only showed the way as per the request of the plaintiffs. Therefore, the same shall be remitted back and a fresh commissioner shall be appointed.
5. Having heard the arguments and also verified the commission report and the sketch produced herein as Ext.P4. The sketch is incomplete sketch and not prepared properly showing the actual picture on the eastern side of the sketch. It is only mentioned about the disputed place and the request made by the plaintiffs in the work memo. But, there is no answer with respect to the requests made by the applicants/defendants in Ext.P3. In order to come to right conclusion and determination of the rights of the parties, it is necessary for the trial court to appoint a fresh commissioner to verify and file a comprehensive report along with the detailed sketch. Whereas, the trial Court rejected the application only on the ground that this is the third application and appointing a commissioner for the third time, does not arise and the application was dismissed, which is not correct.
5. Therefore, I am of the view that the order under challenge required to be set aside and remit back for fresh consideration.
6. Accordingly, the original petition is allowed.
i. The order dated 27.06.2019 passed by the Munsiff Court, Muvattupuzha in I.A.No.1682/2019 in O.S.No.575/2018 is hereby set aside.
ii. The IA No.1682/2019 is restored and now the case is said to be pending before the Munsiff Court, Kothamangalam as OS No.539/2019. Therefore, the Munsiff Court, Kothamangalam is directed to appoint a fresh commissioner for filing the comprehensive report along with the detailed sketch for the purpose of determining the rights of the parties.
iii. Exhibit P3 application, I.A.No.1025/2019 is restored and remitted back for fresh consideration.
iv. The trial court shall make an endeavor to get the report from the commissioner as early as possible and dispose the matter as it is one of the oldest case.
