Ananda Panicker Alex v. Krishna Panicker Radhakrishnan KOYIKKAL VEETTIL and others (RSA No. 233 of 2018)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ## **`RSA NO. 233 OF 2018`** ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.145/2009 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA AND ORDER IN F.D.I.A.NO.1532/1999 IN O.S.NO.256/1967 OF MUNSIFF COURT,HARIPAD ``` ## **`APPELLANT/ADDL.2ND APPELLANT/5TH DEFENDANT:`** ``` ANANDA PANICKER ALEX S/O. LATE ANANDA PANICKER, THAMBURU, VENNALA,KAKKANAD, COCHIN - 28. BY ADVS. SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA EASWARAN ``` ## **`RESPONDENTS/RESPONDENTS 1 TO 8 AND ADDL.RESPONDENTS 9 TO`** ## **`11/DEFENDANTS 6 TO 11, 12 AND 13:`** - `1 KRISHNA PANICKER RADHAKRISHNAN KOYIKKAL VEETTIL, KANNAMANGALAM VADAKKUM MURI,KANNAMANGALAM VILLAGE. - 690 527.` - `2 MADHAVI SUSEELA DEVI,` **`(DELETED)`** `KAMALALAYATHIL, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE - 690 502.` - `3 PURUSHOTHAMA PANICKER CHANDRAN,` **`(DELETED)`** `KAMALALAYATHIL, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE - 690 502.` - `4 MADHAVI THANKAMONY,` **`(DELETED)`** `KAMALALAYATHIL, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE - 690 502.` ``` 5MADHAVI KAMALA DEVI (DELETED) KAMALALAYATHIL, CHIRAKKADAVAM MURI, KAYAMKULAM VILLAGE - 690 502. (R2,R3,R4 & R5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 01.03.2019 IN I.A.1/2019.) ``` ``` RSA NO. 233 OF 2018 2 ``` - `6 NARAYANA PANICKER RAJAN,` **`(DIED) LEGAL HEIRS IMPLEADED`** `VARANAPPALLY RAJA BHAVANAM VEETTIL, PUTHUPPALLY VADAKKUM MURI,PUTHUPPALLY VILLAGE - 690 527.` - `7 NARAYANA PANICKER RAJENDRAN,` **`(DIED) LEGAL REPRESENTATIVES IMPLEADED`** - `VARANAPPALLY RAJA BHAVANAM VEETTIL, PUTHUPPALLY VADAKKUM MURI,PUTHUPPALLY VILLAGE - 690 527.` - `8 SUBHA BAI,` **`(DIED) LRS RECORDED`** `W/O. ANANDA PANICKER PRASANTHA PANICKER @ A.K PRASANTH,KAMBOLIL VEETTIL, PUTHUPPALLY VADAKKUM MURI,PUTHUPPALLY VILLAGE - 690 527.` - `9 MINTU THANKACHY D/O. ANANDA PANICKER PRASANTHA PANICKER @ A.K PRASANTH,KAMBOLIL VEETTIL, PUTHUPPALLY VADAKKUM MURI,PUTHUPPALLY VILLAGE - 690 527.` - `10 ROHIT RUSSEL S/O. ANANDA PANICKER PRASANTHA PANICKER @ A.K PRASANTH,KAMBOLIL VEETTIL, PUTHUPPALLY VADAKKUM MURI,PUTHUPPALLY VILLAGE - 690 527.` ## **`(RESPONDENTS 9 AND 10 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED 8TH RESPONDENT AS PER ORDER DATED 01.03.2023 IN I.A.2/2022)`** - `ADDL.R11 LAILA KUMARI,` - `AGED 64 YEARS` - `W/O.LATE RAJAN,NOW RESIDING AT KANNAMANGALAM,MYANADU P.O.,KOLLAM,FROM RAJA BHAVANAM,PUTHUPALLY NORTH MURI,PUTHUPALLY VILLAGE,ALAPPUZHA.` - `ADDL.R12 RAJALEKSHMI VIMAL,` - `AGED 46 YEARS` - `D/O.LATE RAJAN,RAJA BHAVANAM,PUTHUPALLY NORTH MURI,PUTHUPALLY VILLAGE,ALAPPUZHA.` ## **`(LEGAL HEIRS OF DECEASED 6TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 11 AND 12 AS PER ORDER DATED 12.06.2018 IN I.A.1547/2018.`** - `ADDL.13 JAYALAKSHMI, AGED 65 YEARS W/O.LATE RAJENDRAN,AMBADI HOUSE,PUTHIYIDAM,KAYAMKULAM,PINCODE-690502.` - `ADDL.14 VINOD RAJENDRAN, AGED 48 YEARS S/O.LATE RAJENDRAN,AMBADI` ``` RSA NO. 233 OF 2018 3 ``` ``` HOUSE,PUTHIYIDAM,KAYAMKULAM,PINCODE-690502. ``` ``` ADDL.15JAYASREE RAJENDRAN, AGED 46 YEARS D/O.LATE RAJENDRAN,AMBADI HOUSE,PUTHIYIDAM,KAYAMKULAM,PINCODE-690502. ``` ``` (LEGAL HEIRS OF THE DECEASED 7TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 13 TO 15 AS PER ORDER DATED 01.03.2023 IN I.A.1/2022) ``` ``` R1 BY ADVS.SRI.S.ARAVIND SRI.K.SASIKUMAR R11 & R12 BY ADV.R.S.KALKURA ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 233 OF 2018 4 ``` ## **JUDGMENT** Dated this the 1[st] day of February, 2024 This appeal is at the instance of the 5[th] defendant/9[th] respondent in Final Decree Application No.1532/1999 (for short, ‘F.D.I.A.’ hereinafter) in O.S.No.256/1967. He assails final decree and judgment in F.D.I.A.No.1532/1999 and also decree and judgment in A.S.No.145/2009 on the files of the Additional District Court, Mavelikkara. 2. Heard the learned counsel for the 5[th] defendant/appellant, additional respondents 11 and 12, who are the legal heirs of the 6[th] respondent/12[th] defendant. No others appeared on notice. 3. At the time of admission, as per order, dated 26.2.2018, this Court raised the following substantial questions of law: _1. Have not the courts below gone wrong in making allotment of plot "CYEZ" demarcated by the Taluk Surveyor without any reference in the Commissioner's report/Ext.C1(b) in support of the_ ``` RSA NO. 233 OF 2018 5 ``` _same ?_ _2. Can the court independently admit the Surveyor's plan in evidence under Order 26 Rule 10 CPC without any reference in the Commissioner's report?_ _3. Have not the courts below gone wrong in carving out a portion of the plaint schedule property from the rest, and leave it unallotted without specifying any reasons ?_ _4. Can the allotment be justified, when the valuation of structure/house is made without any basis/data?_ 4. In this matter, originally, a suit filed in the year 1967, was decreed as per decree and judgment, dated 30.11.1970. The terms of the decree, as embodied in paragraph No.20 of the judgment are as under: _20. In the result, a decree is passed in the following terms._ _The plaintiff is entitled to 1/7[th] share in the plaint items and also for separate possession. The partition deed of 1957 is set aside. The question of mesnę profits is relegated to the final decree stage. All the parties to bear their cost in the circumstance. The plaintiff will apply for a commission. As far as_ ``` RSA NO. 233 OF 2018 6 ``` _possible plaint items 5 to 8 will be left out of the shares of the plaintiff while dividing the properties by metes and bounds and they will be included in the share of 1[st] defendant if he claims his share._ 5. Earlier also, there was final decree application as I.A.No.972/1979 and the final decree passed therein, on 8.12.1987, was assailed in A.S.No.12/1990 and the matter got remanded back for fresh disposal. After remand, the trial court ventured the matter, after appointing a Commissioner and passed final decree as on 28.9.2001. The same also was challenged in A.S.No.237/2001 and again, the matter was remanded for fresh disposal. The history of the case has been narrated in paragraph Nos.3,4 and 5 of the trial court order in F.D.I.A.No.1532/1999 and the same are as under: _“3. Originally a final decree application was filed by the petitioners as I.A.No.972/1979. A final decree was passed by this Court vide Judgment dated 8.12.1987. Against that final decree, the respondents No.4 and 5 preferred an appeal as A.S.No. 12/1990 before the Hon'ble Additional District Court No.I, Mavelikara. The Hon'ble Additional District Judge set aside the final decree on 31.10.1998 and remanded the matter for fresh disposal. During the pendency of the final decree proceedings, the_ ## **`RSA NO. 233 OF 2018 7`** _final decree petition submitted by the petitioners was found mutilated. Hence the petitioners were allowed to file a true copy of the original petition after duly reporting the matter to the Hon'ble High Court. Accordingly, the petitioners filed the present petition numbered as I.A.No. 1532/1999._ _4. After remand, this Court appointed a Commissioner, took evidence and passed a final decree on 28.9.2001. That final decree was challenged before the Hon'ble Additional District Court No.II, Mavelikara. The Hon'ble Additional District Court vide Judgment dated 19.1.2005 in A.S.No.237/2001 set aside the final decree and remanded the application for fresh trial and disposal. The Hon'ble District Judge found that the petitioners shall take out a commission to measure out the entire plaint scheduled property and to value the properties taking into consideration the advantages and disadvantages of each items. The extent of the share due to the petitioners will be fixed taking into consideration of the entire worth of the decree scheduled properties._ _5. As per the directions of the Hon'ble Additional District Court, a Commissioner was appointed as per Order in I.A.No.1001/2005. The Commissioner has filed a report before this Court. The 12[th] defendant had filed a petition to set aside that report. That petition was allowed in part and the report was remanded back to the Commissioner. Subsequently the said Commissioner did not file report for a long period. Therefore, another_ ``` RSA NO. 233 OF 2018 8 ``` _Advocate was appointed as Commissioner. He filed a report before this Court. The 4[th] defendant had filed a petition to set aside that commission report also (IA.No. 580/2008(a)). That Commission report was also remitted back to the Commissioner. Subsequently, the Commissioner filed another report. The 4[th] defendant had filed a petition to set aside that report also. By order in I.A. No.1138/2008, this Court observed that: "I do not find anything from the records to prima facie hold that there is any material irregularity or illegality in the Commission report. This suit was instituted in the year 1967. In the final decree stage itself, this is the 4[th] Commission report. The present petitioner had filed objections to earlier reports and remitted it back. The disposal of the final decree is being delayed indefinitely due to the filing of such petitions. Justice is being delayed, and thus, being denied to the petitioners. I find that this petition can be considered along with the final decree application. If, after taking evidence in the final decree petition, it is found that there is merit in the contentions raised in the petitions, appropriate orders will be passed regarding the acceptability of the Commission report. I think that it is the reasonable course open to him to avoid further delay"_ 6. In this matter, the Commissioner filed Ext.C1 series report and plan. Admittedly, the appellant herein had not filed any objection to the Commission Report and plan and also not ## **`RSA NO. 233 OF 2018 9`** adduced any evidence. Even though the 4[th] defendant filed objection, the same was considered by the trial court and found unsustainable. In fact, Ext.C1 series are the 4[th] Commission Report in this matter. As per Ext.C1 plan, the Commissioner located the entire property and located ‘RSQE’ as the plot allotted to the petitioners, who claimed through the 1[st] defendant. 7. The plot so located was 24.477 cents. When the learned counsel for the 4[th] defendant submitted before the trial court that the property allotted to Kuttappa Panicker to be taken from the southern most portion of 22.500 cents allotted to Kuttappa Panicker, the defendant Nos.12 and 13 filed a memo before the trial court, relinquishing 1.977 cents of property, to avoid further complication and confined their right in respect of 22.500 cents and for the said purpose, the court returned the Commission Report and plan and accordingly, the Commissioner and Surveyor located ‘YCEZ’ as property, having an extent of 22.500 cents equivalent to 9.10 Ares. 8. While challenging the concurrent verdicts entered into by the trial court and the appellate court, the learned ``` RSA NO. 233 OF 2018 10 ``` counsel for the appellant herein/5[th] defendant, who did not even file a formal objection to Ext.C1 series, vehemently argued that, in terms of the preliminary decree, the allotment of shares to defendant Nos.12 and 13 should have been from Item Nos.5 to 8. As per Ext.C1 plan, now, the plot located as ‘YCEZ’ is in exclusion of Item No.8 and the same is confined to Item Nos.5,6 and 7. Even though this argument appears to be impressive at the first blush, a plain reading of the terms of preliminary decree, made available, would go to show that, as per the preliminary decree, the trial court directed that ' _as far as possible, plaint Item Nos.5 to 8 will be left out of the shares of the plaintiff while dividing the properties by metes and bounds and they will be included in the share of the 1[st] defendant, if he claims his share_ '. So, the terms of the preliminary decree in no way compel location of property entitled by the 1[st] defendant to be from Item Nos.5, 6, 7 and 8. The same can be either from one plot or from two or three plots together. Thus, it appears that the location of the property from plot 5 to 7 as ‘YCEZ’ is perfectly in terms of the preliminary decree and the said challenge does not yield. ``` RSA NO. 233 OF 2018 11 ``` 9. Coming to the substantial questions of law, i.e., _1). Have not the courts below gone wrong in making allotment of plot "CYEZ" demarcated by the Taluk Surveyor without any reference in the Commissioner's report/Ext.C1(b) in support of the same? and 2) Can the court independently admit the Surveyor's plan in evidence under Order 26 Rule 10 CPC without any reference in the Commissioner's report?,_ the same arise on the premise that the Surveyor, at his volition, corrected Ext.C1 plan (wrongly stated as Ext.C1(b) in the substantial question of law). 10. The learned counsel for the appellant herein/5[th] defendant placed a decision of this Court in **Retnamma** v. **Mehaboob** , reported in **[2013 (2) KLT 648]** , to contend that, Surveyor's plan cannot independently be admitted as evidence under Order XXVI Rule 10 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter), in the absence of any reference in the Commission Report about this correctness or truth of the details shown therein. 11. On perusal of the above decision, this Court considered a Commission Report, where specific objection was ``` RSA NO. 233 OF 2018 12 ``` raised in that regard. In the instant case, the appellant herein/5[th] defendant did not even raise a formal objection to the Commission Report and he conceded the Commission Report and plan as correct, even after getting the property allotted to defendant Nos.12 and 13 as ‘YCEZ’ plot, as directed by the court to give a quietus to the litigation, which started in the year 1967. It is true that, as per order XXVI Rule 10 of the C.P.C, _the report of the Commissioner and the evidence taken by him shall be the evidence in the suit and shall form part of the record_ . In the instant case, during the final decree proceedings, in view of the voluntary surrender made by defendant Nos.12 and 13 on the basis of objection raised by the 4[th] defendant, the court obtained the plan corrected and confining the extent of property to 22.500 cents as plot ‘YCEZ’ and therefore, it could not be held that, when the court gets the plan clarified, the same is to be read in isolation. Thus, the correction made in the plan to be reckoned as evidence taken by the Commissioner and the same shall be evidence in the suit. Therefore, it is held that the courts below did not go wrong in making allotment of plot ‘CYEZ’ demarcated in Ext.C1 ``` RSA NO. 233 OF 2018 13 ``` plan, after rectifying the same, in view of surrender of 1.977 cents of property by defendant Nos.12 and 13. Similarly, the courts below did not independently admit the Surveyor’s plan in evidence. It was done on getting the plan corrected, after returning the same back to the Commissioner and Surveyor and therefore, the courts below admitted the same and read in evidence, in tune with the mandate of Order XXVI Rule 10 of the C.P.C. It is also held that the courts below did not carve out a portion of the plaint schedule property from the rest and left the remaining unallotted in a case, where defendant Nos.12 and 13, who alone sought for getting separation of their shares, being purchasers of the said property from the 1[st] defendant. But, the courts below fixed ‘CYEZ’ plot located in Ext.C1 plan on finding that the same is separation of shares by metes and bounds. 12. Insofar as allotment of shares is concerned, as I have already pointed out, the direction in the preliminary decree was to allot plots from Item Nos.5 to 8, as far as possible, if the 1[st] defendant claims so. Here, the allotment is admittedly from Item Nos.5 to 7, that too appears to be in feasible manner on ``` RSA NO. 233 OF 2018 14 ``` looking Ext.C1 plan throughout. 13. The 4[th] question of law raised is, _could the allotment be justified when valuation in structures made without any basis?_ On going through the Commission Report, Ext.C1, the Commissioner fixed the valuation and the appellant did not raise any objection to the valuation and he conceded the valuation and also the appellant herein/5[th] defendant did not give any evidence, in any manner. Therefore, it is held that the courts below did not go wrong in finding ‘YCEZ’ plot as the plot allotted to defendant Nos.12 and 13 and the valuation found to be justifiable. 14. It is shocking to note that, even though the litigation started in the year 1967 and the final decree matter itself remanded twice, the third appeal, by way of third challenge by way of second appeal, has been pending before this Court for the last six years. On evaluation of the evidence as discussed, it is held that the appellant herein, who did not file any objection to the Commission Report or the final decree proceedings, in any manner, in fact, raised challenge in second appeal without any basis. Having found so, the final decree ``` RSA NO. 233 OF 2018 15 ``` and judgment passed by the trial court and confirmed by the appellate court, are liable to be confirmed. In the result, this Regular Second Appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb