IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 172 of 2010(O)
1. SUJATHAN, S/O.EZHAPILLY APPU,
... Petitioner
2. UNNIKRISHNAN S/O -DO-
Vs
1. SOOSI, W/O.KUNDUPARAMBIL XAVIER,
... Respondent
For Petitioner :SRI.K.S.BHARATHAN
For Respondent :SRI.P.SREEKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :03/11/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.172 of 2010
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Dated this the 3rd day of November, 2010.
JUDGMENT
Defendant Nos.1 and 2 in O.S.No.741 of 2001 of the court of learned
Munsiff, Irinjalakuda are the petitioners before me. Respondent, in the year
2001 instituted a suit for fixation of the southern and western boundary of her
property and for consequential reliefs. Petitioners while resisting the suit made a
counter claim for recovery of possession of property described in the counter
claim as B schedule alleging that the said portion belonged to the petitioners
and was trespassed upon by the respondent. Though the suit was instituted in
the year 2001 still the parties are lingering around reports and plans submitted
by the Advocate Commissioner and Surveyor, there having been remissions
several times and some of the orders being called in question in this Court also
in earlier proceedings. Challenge now is at the instance of
petitioners/defendant Nos.1 and 2to the latest reports and plan submitted by
Advocate Commissioner.
2. As per plaint schedule description and the plaint averments
respondent claimed right, title and possession of 69 = cents in survey No.762/4
as per document No.2762 of 1992 and, stated to be bounded by road on the
north, lane on the east and properties of the petitioners on the south and west.
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Petitioners alleged that respondent destroyed existing boundaries on the
southern and western sides of her property. Petitioners claimed right, title and
interest over 48 cents in survey No.762/2 a per document Nos.128 and 1636 of
1964 and described the said property as A schedule in the counter claim. B
schedule according to them is part of the A schedule in the counter claim
allegedly trespassed upon and taken forcible possession by the respondent. B
schedule in the counter claim is a bit of land having width of 3 = links and length
of 57.8 links described as situated on the west of property of respondent and, in
continuation of that bit of land, yet another bit of land having width of one metre
and length of 12.5 links on the south of property of respondent.
3. Initially the Advocate Commissioner with the assistance of a
surveyor submitted Ext.P4, report and plan. Respondent requested for
remission of that report and plan as per Ext.P5 (I.A.No.398 of 2003) and
rejecting the objection of petitioners that request was allowed as per order dated
26.11.2004. Ext.P7 series are the reports and plans submitted after such
remission. Respondent then filed I.A.No.392 of 2006 (Ext.P8) to set aside
Ext.P7 series, report and plan. That application was dismissed as per Ext.P10,
order dated 15.02.2006. While taking evidence in the case learned Munsiff
passed Ext.P11, order dated 29.03.2006 remitting Ext.P4 and Ext.P7 series,
reports and plans to the same Commissioner. Respondent challenged that order
in this Court in W.P.(C) No.20725 of 2006 and Ext.P11, order was set aside as
per Ext.P12, judgment of this Court to the extent that learned Munsiff was
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directed to decide whether remission should be to the same Advocate
Commissioner or a fresh Commissioner has to be appointed. In the light of that
direction respondent filed Ext.P13 (I.A.No.1321 of 2007) to appoint a new
Commissioner (for inspection and report pursuant to order of remission dated
29.03.2006). That was objected by petitioners as per Ext.P14. But learned
Munsiff vide order dated 06.10.2007 appointed a new Advocate Commissioner
for carrying out the work pursuant to order of remission dated 29.03.2006. That
Commissioner submitted Ext.P16, report and Ext.P17 series, plans after
measurement of the property with the assistance of a Surveyor. Petitioners filed
Ext.P20 (I.A.No.3814 of 2009) to set aside Ext.P16 and Ext.P17 series. On that
application, Advocate Commissioner and Surveyor were examined as CW1 and
CW2. Learned Munsiff dismissed Ext.P20, application as per Ext.P23, order
which is under challenge in this petition. Learned counsel for petitioners
contend that Ext.P16 and Ext.P17 series prima facie are unacceptable for the
reason that even as per plaint schedule description, the suit property is
bounded by road on the north and lane on the east. But Ext.P17 series show
that lane is on the west of the suit property which the Advocate Commissioner
and Surveyor were not able to clarify. According to the learned counsel Ext.P16
and Ext.P17 series suffer from inherent defect as above stated. A further
contention that learned counsel advanced is that the order dated 06.10.2007
passed by the learned Munsiff appointing a new Commissioner is vitiated by
procedural irregularity in that it amounts to calling for a fresh report and plan
without setting aside the earlier reports and plans. Learned counsel has placed
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reliance on a Division Bench decision of this Court in Swami Premananda
Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) where it
has been held that appointment of a second Commissioner without setting aside
proceedings and report of the first Commissioner is not legal or proper. Learned
counsel for respondent contends that there is no merit in the objection raised by
petitioners nor in the request to set aside Ext.P16 and Ext.P17 series.
Learned counsel states that it is clear from the evidence of CW2, Surveyor that
he has not shown any lane on the west of the suit property and what is shown
like a gap on the west of the suit property is part of property belonging to the
petitioners. It is contended that the objection based on the decision in Swami
Premananda Bharathi v. Swami Yogananda Bharathi (referred
supra) has no legs to stand since it is not a case of a fresh report being called for
but, as part of order remitting Ext.P4 and Ext.P7 series a new Commissioner has
been appointed in place of Advocate Commissioner who had submitted Ext.P4
and Ext.P7 series and that being in tune with the judgment of this Court in W.P.
(C) No.20725 of 2006 cannot be assailed by the petitioners in this proceedings.
4. I shall refer to the second limb of the argument advanced by
learned counsel for petitioner based on the decision in Swami Premananda
Bharathi v. Swami Yogananda Bharathi. There, it has been held that
appointment of a second Commissioner without setting aside proceedings and
report of the first Commissioner is not legal or proper. That decision has to be
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understood on the facts of the case where, in respect of the same matter and
without setting aside the report of first Commissioner, again a report was called
for through another Commissioner. The Division Bench said that the procedure
is illegal since without setting aside the first report the court cannot call for a
second report on the same facts and materials. This Court has held in K.L.D.
& M.M. Board Ltd. v. Achuthan (2001 (2) KLT 440) that even
without setting aside the first report it is within the power of court to to appoint a
second commission to collect more details. Here is a case where as per order
dated 29.03.2006 (Ext.P11) learned Munsiff while taking evidence in the case
ordered that Ext.P4 and Ext.P7 series are to be ‘remitted’ to the same
Commissioner for further report. There could be no doubt that it is within the
power of court to remit a report, notwithstanding that none of the parties
objected to it if for any reason the court is dissatisfied with the proceedings of
the Commissioner (See Rule 10(3) of Order XXVI of the Code of Civil
Procedure). I must also bear in mind that Ext.P11, order was not challenged by
petitioners. Respondent challenged Ext.P11, order only to the extent it
concerned appointment of the same Commissioner to conduct further
inspection and submit report following the remission of Ext.P4 and Ext.P7 series.
What was therefore in issue in W.P.(C) No.20725 of 2006 filed by petitioners
against Ext.P11, order was only whether learned Munsiff was justified in
appointing the same Commissioner (who had submitted Ext.P4 and Ext.P7
series) or whether in the light of the reports already submitted by the Advocate
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Commissioner concerned, learned Munsiff ought to have appointed another
Advocate Commissioner to carry out work as per the order of remission dated
29.03.2006. It was argued before this Court in W.P.(C) No.20725 of 2006 that
no purpose will be served by deputing the very same Advocate Commissioner
pursuant to the order of remission dated 29.03.2006. This Court found merit in
that argument and directed that learned Munsiff shall decide whether it is
appropriate to appoint a new Commissioner or the same Advocate
Commissioner has to be appointed. It is thereafter that respondent filed Ext.P13
(I.A.No.1321 of 2007) to appoint a new Commissioner. That was not for the
purpose of calling for a fresh report notwithstanding that Ext.P4 and Ext.P7
series, but as far as I can understand was only to appoint another
Commissioner in tune with the observation made by this Court in Ext.P12,
judgment. It is accordingly that the present Advocate Commissioner was
appointed as per order dated 06.10.2007 and it remains that what the Advocate
Commissioner has done with the assistance of Surveyor is only to carry out the
direction of learned Munsiff while ordering remission of Ext.P4 and Ext.P7 series
as per order dated 29.03.2006. I am therefore unable to accept the argument
that learned Munsiff has called for a fresh report in respect of the same matter
without setting aside Ext.P4 and Ext.P7 series. In that view of mine, the decision
in Swami Premananda Bharathi v. Swami Yogananda Bharathi
relied on by learned counsel for petitioners has no application and that
argument has to fail.
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5. The next question is whether objection raised by petitioners to
Ext.P16 and Ext.P17 series is tenable. I referred to the chequered career this
case had in the matter of reports and plans submitted by Advocate
Commissioners and that a simple suit for fixation of boundary or as claimed by
petitioners for recovery of possession of B schedule in the counter claim filed in
the year 2001 still is in the course of consideration of reports and plans
submitted by Advocate Commissioner. Of course, lapse of time is no ground to
reject the objection raised by petitioners if it is otherwise tenable. I have taken
through Ext.P16 and Ext.P17 series. Objection raised by petitioners is that while
in the plaint schedule suit property is described as bounded by road on the west
and lane on the east, Ext.P17 series give a different picture in that lane is
shown as on the west of the suit property which is in contradiction with the
boundary description which I have just stated above. Looking at Ext.P7 series it
may appear to be so. In Ext.P16, paragraph No.2 last, Advocate Commissioner
has reported that along the east of suit property there is a lane leading to the
property of petitioners. What is relied on by learned counsel for petitioners is
Ext.P17, series (see Ext.P17(a) where a small gap is shown on the western side
of the property identified as plaint schedule property. In Ext.P7(b) the Surveyor
has shown a similar small gap on the east of the suit property originating from
road on the north). Looking at Ext.P17(a) as I stated it may prima facie appear
that the lane is shown on the west of the suit property but CW2, Surveyor has
clarified in his evidence that he has not shown any lane on the west of the suit
property and that what appears like a lane on the west of the suit property is part
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of property of petitioners. So far as the northern boundary of the suit property
is concerned, there is no dispute in that in Ext.P17 series it is shown as the road.
In the light of clarification given by CW2, Surveyor I do not find merit in the
objection of petitioners. That objection also has to fail. After all, report and plan
submitted by Advocate Commissioner is only a piece of evidence. Learned
Munsiff has to decide the case on evidence of course taking into account the
reports and plans and other evidence on record, as well.
Petition is dismissed.
THOMAS P.JOSEPH,
Judge.
cks