Dasan v. Yamuna and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 2ND DAY OF AUGUST 2018 / 11TH SRAVANA, 1940** **RSA.No. 410 of 2011** **AGAINST THE DECREE/JUDGMENT IN AS 171/2006 of I ADDL.DISTRICT COURT, THRISSUR DATED 30-09-2010 AGAINST THE DECREE/JUDGMENT IN OS 554/1986 of II ADDL.MUNSIFF COURT,THRISSUR DATED 07-04-2006** ## **APPELLANT(S)/APPELLANT IN RSA-APPELLANT IN AS PLAINTIFF IN SUIT** **DASAN, S/O THOPPIL VELU, KOORKKANCHERY VILLAGE AND DESOM, THRISSUR TALUK.** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.)** **SRI.P.B.KRISHNAN** **SMT.GEETHA P.MENON** **SRI.P.M.NEELAKANDAN** **SRI.P.B.SUBRAMANYAN** **RESPONDENT(S)IN RSA/RESPONDENTS 1 & 3 TO 6 IN AS:-DEFENDANT 1 & LRS OF DEFENDANT NO.2 IN SUIT:** - ***1. YAMUNA,** **D/O KOTTAYATTIL GOVINDAN, KANNAMKULANGARA DESOM, CHIYYARAM VILLAGE,, THRISSUR TALUK, KANIMANGALAM POST, PIN.680 027.** **[DIED] LR'S IMPLEADED** **2. SAVITHRI, W/O.KOTTIYATTIL LATE BALASUBRAMANIAN,, KANNAMKULANGARA DESOM, CHIYARAM VILLAGE,, THRISSUR TALUK, KOORKANCHERY POST. 680 007.** **3. REKHA, D/O. DO. IN DO. DO.** **4. RENU, D/O. DO. IN DO. DO.** **5. ABDUL NIZAR,** **S/O.AKKARAPARAMBIL ABDUL KHADER,, MUTTICHUR DESOM, PADIYAM VILLAGE, THRISSUR TALUK,, PADIYAM POST, PIN-680 696.** - ***ADDL.R6. BEENA** **W/O UNNIKRISHNAN PULICKAL PARAMBIL HOUSE, PAZHAMPILLY THOMAS ROAD, VADUTHALA DESOM, CHERANELLOR VILLAGE, KANNAYANNUR TALUK KOCHI - 682 023** **ADDL.R7 INDIRA, W/O RAJASEN, KALATHIL HOUSE, FRONTSHIP NAGAR, 35/2112-C.S, SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI 682025** **ADDL.R6 AND R7 ARE IMPLEADED BEING THE LEGAL REPRESENTATIVES OF DECEASED R1 AS PER ORDER DATED 19.11.2013 IN I.A. NO. 2603/2012.** **R5 BY ADV.MILLU DANDAPANI** **R2,R3,R4,R BY ADV. SRI.K.B.GANGESH ADDL.R6 AND 7 BY ADV. SRI.J.KRISHNAKUMAR (ADOOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 410 of 2011** ## **APPENDIX** **PETITIONER'S EXHIBITS :** **ANNEXURE A TRUE COPY OF THE PLAN ACCOMPANYING EXT.C1 REPORT OF THE COMMISSIONER ANNEXURE B TRUE COPY OF THE PLAN ACCOMPANYING EXT.C5 REPORT OF THE COMMISSIONER** **RESPONDENT'S EXHIBITS : NIL** ## **//TRUE COPY//** **SD/-** **P.A. TO JUDGE** ## **SKS** ## **P.B.SURESH KUMAR, J.** =============== ## **R.S.A. No. 410 of 2011** -------------------------------------------------- ## **Dated this the 2[nd] day of August, 2018** ## **JUDGMENT** Plaintiff in a suit for recovery of possession is the appellant in the second appeal. 2. The case set out by the plaintiff in the plaint is that he holds title to plaint 'A' schedule property and that the defendants have trespassed into a portion of the same. The portion of plaint 'A' schedule property allegedly trespassed upon by the first defendant is shown in the 'B' schedule to the plaint and the portion of plaint 'A' schedule property allegedly trespassed upon by the second defendant is shown in the 'C' schedule to the plaint. The suit was for recovery of possession of plaint 'B' and 'C'' schedule properties from defendants 1 and 2 respectively. The defendants contended that there R.S.A.No.410 of 2011 : 2 : are no properties in existence as described by the plaintiff in plaint 'B' and 'C' schedules and that they are in possession of only the properties inherited by them from their predecessors. The trial court dismissed the suit holding that the plaintiff has not established the identity of plaint 'B' and 'C' schedule properties and the appellate court confirmed the decision of the trial court. The plaintiff challenged the decisions of the courts below before this Court in S.A.No. 854 of 1998. This Court took the view that the appellate court ought to have remitted the suit to the trial court for fresh disposal after affording the plaintiff an opportunity to establish the identity of the suit properties with reference to his title deeds and consequently allowed the second appeal and remitted the suit for fresh disposal with a direction to the trial court to appoint an experienced commissioner to identify the suit properties with reference to the documents of title of the parties. R.S.A.No.410 of 2011 : 3 : 3. After the remand, the plaintiff preferred an application for issuing a commission for identifying the suit properties. The Advocate Commissioner appointed by the court in the said application identified the properties and filed Ext.C1 report. A plan of the properties identified was also appended to the report. According to the plaintiff, the identification of the properties made by the Advocate Commissioner in terms of Ext. C1 report was not correct. Consequently, he preferred an application for remitting the report submitted by the Advocate Commissioner. The said application was allowed and the report submitted by the Advocate Commissioner was remitted for a fresh report. Ext.C5 is the report submitted by the Advocate Commissioner thereafter. A plan of the properties was appended to Ext.C5 report as well. Despite Exts.C1 and C5 reports, the trial court dismissed the suit holding that the plaintiff has still not established the identity of plaint B and C schedule properties and the R.S.A.No.410 of 2011 : 4 : said decision of the trial court has been confirmed in appeal. The plaintiff is aggrieved by the said decisions of the courts below. Hence this second appeal. 4. Heard the learned Senior Counsel for the appellant and the learned counsel for the respondents. 5. After hearing the parties, the question of law arising for consideration in the matter has been reframed thus: _“Have not the courts below acted illegally in dismissing the suit on the ground that the plaintiff has not established the identity of the suit properties?_ 6. A perusal of the decision of this court in S.A. No. 854 of 1998 indicates that the properties of the parties were earlier demarcated based on the existing boundary and possession. This court took the view that the identification of the properties of the parties in the aforesaid manner is of no use to decide a case of this nature and that the properties are to be identified with R.S.A.No.410 of 2011 : 5 : reference to the title deeds of the parties. The relevant finding contained in paragraph 4 of the judgment reads ## thus: _“ It has to be noticed that a mere demarcation of the property with reference to the existing boundary or present possession cannot enable the court to decide whether going by the documents of title relied on by the parties the plaintiff has title over the plaint B and C schedule properties or not. As I noticed, the present possession and existence of boundary are only elements bring into the reckoning while deciding the questions whether the plaintiff has established his title over the disputed properties. The title will have essentially to be decided by getting the properties identified with reference to the title deeds of the parties. By not insisting on such a course and in non-suiting the plaintiff without such insistence, the courts below have committed a substantial error of law warranting interference by this Court in Second Appeal.”_ ## The operative portion of the judgment of this court in S.A. ## No. 854 of 1998 reads thus: _“I therefore allow the Second Appeal and set aside the judgments and decrees of the courts below. I remand the suit to the trial court. That court will mark the documents already produced in court in evidence and also give further opportunity to the parties to adduce more evidence in support of their respective cases. The trial court will issue a fresh commission at the expense of the plaintiff and appoint an experience commissioner to identify the properties with reference to the documents of title of all the parties. In case any of the parties failed to produce their document of title,_ R.S.A.No.410 of 2011 : 6 : _the trial court will draw an adverse inference against that party while deciding the question of title ultimately. After getting the properties identified with reference to the documents of title relied on by the plaintiff and that of the defendants if produced and marked, the trial court will decide the suit afresh in accordance with law. The parties are directed to appear in the trial court will draw an adverse inference against that party while deciding the question of title ultimately. After getting the properties identified with reference to the documents of title relied on by the plaintiff and that of the defendants if produced and marked, the trial court will decide the suit afresh in accordance with law. The parties are directed to appear in the trial court on 27.5.1999. The court fee paid on the memorandum of Second Appeal will be refunded to the appellant. Records received by this Court will be retransmitted to the trial court along with a copy of this judgment without delay.”_ In the light of the decision of this Court in S.A.No. 854 of 1998, the questions before the courts below were (1) whether the plaintiff has established title over the plaint 'B' and 'C' schedule properties and (2) whether the plaintiff has established the identity of the said properties. By dismissing the suit, the said questions have been answered by the courts below against the plaintiff. 7. Before I proceed to consider the correctness of the aforesaid decisions of the courts below, R.S.A.No.410 of 2011 : 7 : it is necessary to refer to a few facts. Plaintiff and defendants 1 and 2 are claiming title to properties in Sy. No.247/2 of Chiyyaram Village originally held by one Unni Ayyappan. Unni Ayyappan had title and possession over a total extent of 372 cents in the said survey number. He bequeathed the said property along with other properties to his wife and children in terms of Ext.A11 will. The plaintiff is claiming rights over the property under the wife of Unni Ayyappan namely Kunhi Kali and his son Vasudevan, the first defendant is claiming rights over the property under the son of Unni Ayyappan namely Govindan and the second defendant is claiming rights over the property under another son of Unni Ayyappan namely Sankaran. In terms of Ext.A11 will, Sankaran obtained 131 cents, Govindan obtained 143 cents, Vasudevan obtained 71 cents and Kunhi Kali obtained 27 cents. There is a provision in Ext.A11 to the effect that on the death of Kunhi Kali, the 27 cents of property R.S.A.No.410 of 2011 : 8 : bequeathed to her would devolve on her sons other than Govindan. Ext.A4 is the sale deed executed after the death of Kunhi Kali in favour of the daughter of Kunhi Kali, viz, Narayani by the sons of Unni Ayyappan other than Govindan. There are three items of properties in the said sale deed. It is recited in Ext.A4 that the first item included therein is the property measuring 27 cents bequeathed to Kunhi Kali in terms of Ext.A11 will. It is also recited in Ext.A4 that the third item included therein is the pathway provided to the first item from the western public road. Later, as per Ext.A6 sale deed, Vasudevan also conveyed 71 cents of property obtained by him in terms of Ext.A11 will to Narayani. Thereupon, in terms of Ext.A5 settlement deed, Narayani settled her properties in favour of her children. As per Ext.A5 settlement deed, Narayani settled the 71 cents of property in survey No. 247/2 obtained by her as per Ext.A6 sale deed from Vasudevan and 26 out of 27 cents and obtained by her in R.S.A.No.410 of 2011 : 9 : the said survey number as per Ext.A4 sale deed in favour of her daughter Lilly Bhai. The pathway measuring 3 cents obtained by her as per Ext.A4 sale deed was also conveyed by Narayani to Lilly Bhai in terms of the said document. The aforesaid three items are included in the 'C' schedule to Ext.A5 settlement deed. According to the plaintiff, he has purchased the said three items of properties from Lilly Bhai as per Ext.A1 sale deed and they are the properties included in the plaint A schedule. It is also the case of the plaintiff that among the said properties, the properties measuring 26 and 3 cents shown in the 'C' schedule to Ext.A5 settlement deed are the properties described in plaint 'B' and 'C' schedules respectively. 8. As noted, the case of the plaintiff is that the second defendant has trespassed into the plaint C schedule property. According to the second defendant, there is no such pathway in existence and he is in R.S.A.No.410 of 2011 : 10 : possession of only the 131 cents of property obtained by his father Sankaran in terms of Ext.A11 will. A perusal of Ext.A4 sale deed indicates that a pathway having a length of 30 dandu east-west and a width of half dandu northsouth has been purchased by Narayani. Though there was a recital in Ext. A4 that the said pathway is part of the property allotted to Sankaran in terms of Ext. A11 Will, the said recital is seen scored off at the time of registration of the document. In the circumstances, it has to be taken that the said 3 cents is not part of the property allotted to Sankaran in terms of Ext. A11 Will. If the said 3 cents of property shown as pathway in Ext.A4 sale deed is not part of the property allotted to Sankaran in terms of Ext. A11 will, going by the lie of the properties allotted to the parties in terms of Ext.A11 will as discernible from the plans prepared by the Advocate commissioner, the same can only be through the property allotted to Govindan in terms of Ext.A11 will. Govindan was not a party to Ext.A4 sale deed. It cannot, therefore, be said that Narayani has R.S.A.No.410 of 2011 : 11 : acquired any right over the said pathway. Needless to say, the plaintiff who is claiming under Narayani cannot also, therefore, claim any right over the pathway viz, the plaint C schedule property. The relief claimed by the plaintiff in respect of plaint C schedule property, in the circumstances, is only to be rejected. 9. As far as plaint B schedule property is concerned, as noted, the case of the plaintiff is that the same is the 26 cents of property obtained by him from Lilly Bhai as shown in the 'C' schedule to Ext. A5 settlement deed. The first defendant has no case that Lilly Bhai has not acquired 26 cents of property in terms of Ext. A5 settlement deed. The first defendant, however, has a specific case that the plaintiff has not purchased the entire 26 cents of property from Lilly Bhai. I shall therefore consider first whether there is any substance in the said contention of the first defendant. In Ext.A5 settlement deed, the properties given to Lilly Bhai are included in the 'C' schedule to the document. It is recited R.S.A.No.410 of 2011 : 12 : in Ext.A5 settlement deed that what is conveyed to Lilly Bhai as per the said document is 26 cents out of the 27 cents covered by Ext. A4 sale deed excluding the one cent included in the 'D' schedule to the said document given to Komalavally. The 26 cents of property given to Lilly Bhai as per Ext.A5 settlement deed is described in the said document thus: **ട� നമറ�ൽ ത�ര�ച ഒര� മ�റ� പറമ�� ക�ഴ�ക�റ� 7 ചമയങള�� ട� പറമ�ൽ ന�ന� ക�ഴകക അറ� ക�ഴകമൽ ല��ഗ"�� തതനടൽ 183 ല��ഗ"�� സല� ഡ� പട�കയ�ൽ കചർതത കഴ�ച� ബ,ക� 26 ത"ന. വഹകൾ മ�ൻ പറഞ 2746 . ആധ,രത�ൽത6ടത,ക�ന�** In Ext.A1 sale deed executed by Lilly Bhai in favour of the plaintiff, it is stated that 26 cents of property conveyed therein is the property obtained by the vendor Lilly Bhai in terms of Ext.A5 settlement deed. The said 26 cents of property is described in Ext.A1 thus: **ട� ഭ,ഗ� ട� "ർത7 ട� വക പറമ�� ക�ഴ�ക�റ� ചമയങള�� എല;, അവക,ശങള�� 7-o തതനടൽ 183 ല��ഗ= അളവ�ന�� 26 ത"നറ� 10 തഡ"�മൽ 526.** As noted, the property description relating to the said 26 cents contained in Ext.A1 is ambiguous in the sense that if R.S.A.No.410 of 2011 : 13 : the side measurements shown therein is reckoned, the area would come only less than one cent, whereas the area of the property conveyed is specifically mentioned in the document as 26 cents. Further, in Ext.A5 settlement deed, properties have been allotted to Lilly Bhai by including in its B and C schedules and the 26 cents of property conveyed to the plaintiff is one included in the C schedule to the document. However, it is mentioned in Ext. A1 sale deed that the said property is one included in the 'B' schedule to Ext.A5 settlement deed. It is on account of the aforesaid reasons that the first defendant contends that the plaintiff has not purchased the entire extent of 26 cents from Lilly Bhai. The specific case of the plaintiff is that the side measurements of the property have been shown in his document by mistake as that of the one cent excluded from the 27 cents originally held by Narayani by the document writer and the said mistake in the document has been rectified by the vendor, viz, Lilly Bhai in terms of Ext.A3 rectification deed. The relevant R.S.A.No.410 of 2011 : 14 : ## portion of Ext.A3 reads thus: **" ട� ത�റ,ധ,രത�ൽ 1- )o കപജ�ൽ ത,തഴ പട�ക വഹകള�� മറ�� ത?.".റ, 1-)o ബ�ക� 1585-)o വ,ള�യ� 271 മ�തൽ വശങള�ൽ 1962 ൽ 4300-)o നമറ,യ� രജ�=@ട,ക�യ ത"റ�ൽതമണ,ധ,ര@പക,ര� "� പട�കയ,യ� എന�ക� അവക,ശത6ട�ക�ട�യത��'' എന� കചർകകണത�ന� പകര� കകതതറ,യ� ത,തഴ പട�ക വഹകള�� മറ�� ത?.".റ, 1- )o ബ�ക� 1585-)o വ,ള�യ� 271 മ�തൽ വശങള�ൽ 1962 ൽ 4300-)o നമറ,യ� രജ�=@ട,ക�യ ത"റ�ൽതമണ,ധ,ര@പക,ര� ബ� പട�കയ,യ� എന�ക� അവക,ശത6ട�ക�ട�യത��'' എന� 1978 തല കചർത�കപ,യ�ട�ളത�� അത�ന� പ�റതമ ട� 2613-)o നമർ ത�റ,ധ,രത�ൽ പട�ക 1-)o നമറ�ൽ വ=ത�വ�വരകള�യ�ൽ "ർത7 ട� ട� ഭ,ഗ� ട� വക പറമ�� ക�ഴ�ക�റ� ചമയങള�� എല;, അവക,ശങള�� ക�ഴ�കമൽ 7-o തതനടൽ 183-o ല��ഗ= അളവ�ന ഒര� ത"ന. വഹകൾ കമൽ നമർ ത"റ�ൽതമനറ,ധ,ര@പക,ര� ഡ� പട�കയ�ൽ കചർതത കഴ�ച� ബ,ക� 26 ത"നറ�ന പത� ഡ"�മൽ അഞ� രണ� ആർ എന� കചർകകണത�ന� പകര� കകതതറ,യ� "ർത7 ട� ട� ഭ,ഗ� ട� വക പറമ�� ക�ഴ�ക�റ� ചമയങള�� എല;, അവക,ശങള�� ക�ഴ�കമൽ 7-o തതനടൽ 183-o ല��ഗ= അളവ�ന 26 ത"ന. . എന� കചർത�കപ,യ�ട�ളത�� ആക�ന� വഹകള�തട ത�റ,ധ,ര� മ�തല,യ കരഖകൾ കക,ടത�യ�ൽ ഹ,ജര,ക�യത�ൽ നടത�യ പര�കശ,ധനയ�ൽ കമൽ6റഞ തതറ�കൾ ന�ങള�തട @ശദയ�ൽത6ട�ത�യതന�"രച� കമൽ@പക,ര� വന� ശര�യ,ക�തരണതമന� ന�ങൾ തതറ�കതള ആവശHത6ടത�തന ഞ,ൻ "മത�ചതന�"രച� . ഈയ,ധ,ര� എഴ�ത�തര�നത,ക�ന�** A combined reading of Ext.A4 sale deed, Ext.A5 settlement deed and Ext.A1 sale deed would indicate R.S.A.No.410 of 2011 : 15 : beyond doubt that what was conveyed by Lilly Bhai to the plaintiff in terms of Ext.A1 sale deed is the 26 cents of property obtained by her as per Ext.A5 settlement deed and the side measurements shown in the document are the side measurements of the one cent of property excluded from the larger extent of 27 cents in terms of Ext.A5 settlement deed. It is, therefore, clear that by virtue of Ext. A1 sale deed, the plaintiff has acquired title over the 26 cents of property held by Lilly Bhai in terms of Ext. A5 settlement deed. 10. The learned counsel for the legal representatives of the first defendant, placing reliance on the recital viz, " **ത,തഴ അത�രളവ�കൾ കചർക�ന വകകള�� അവ "�ബന�ച എല;, അവക,ശങള��** " contained in Ext.A1 sale deed, contended that the plaintiff cannot, in the light of the said recital, claim any right over the 26 cents of property and that he can claim only title over 1 cent of property having a length of 183 links and a breadth of 7 links. I have found, on an evaluation of the materials on R.S.A.No.410 of 2011 : 16 : record, that what is conveyed by Lilly Bhai to the plaintiff in terms of Ext.A1 sale deed is the 26 cents of property obtained by her from her mother Narayani in terms of Ext.A5 settlement deed. It is settled that where, on a construction of a document, it is clear that the intention of the parties was to convey a parcel of land, an erroneous statement regarding its extent in the document is liable to be rejected as _falsa demonstratio_ (See **Chacko Joseph v. Varghese Markose** (1957 KLT 485). F _alsa demonstratio non nocet_ (mere false description does not vitiate, if there be sufficient certainty as to the object) is a rule that enables the court to discard a part of a description as false and inadvertently inserted, if it reaches the conclusion that the property conveyed was that indicated by other parts of the description (see Venkataramaiya's Law Lexicon with Legal Maxims - 2[nd] edition). I am, therefore, unable to accept the said contention of the learned counsel for the first defendant. 11. Now, I shall deal with the dispute relating R.S.A.No.410 of 2011 : 17 : to the identity of plaint B schedule property. As noted, after the remand, the Advocate Commissioner has initially filed Ext. C1 report. In the plan appended to Ext.C1 report, the Advocate Commissioner has located the 372 cents of property held by Unni Ayyappan in Survey No. 247/2. He has also located the different portions of the said 372 cents of property obtained by the parties to Ext.A11 will. Later, in terms of the order passed by the Munsiff Court in I.A. No. 9524 of 2003, the Advocate Commissioner has submitted Ext. C5 report. In the plan appended to Ext. C5 report, the Commissioner has located the 372 cents of property in survey no. 247/2 in a manner slightly different from the plan appended to Ext. C1 report. The reason being that when Ext. C1 report was filed, the Advocate Commissioner was under the impression that the pathway measuring 3 cents provided in Ext. A4 sale deed had to be located in the 131 cents of property obtained by Sankaran in terms of Ext. A11 will. In Ext.C5 report, the Advocate Commissioner has stated that since R.S.A.No.410 of 2011 : 18 : Sankaran has not conveyed any part of his property in terms of Ext. A4 sale deed to Narayani, the same can only be located through the property of Govindan and accordingly, in the plan appended to Ext. C5 report, the pathway has been shown as part of the property of Govindan. The Commissioner has also located and shown in the said plan the 131 cents of property obtained by Sankaran in terms of Ext. A11 will. On the death of Govindan, 143 cents of property obtained by Govindan in terms of Ext. A11 will was partitioned between the second defendant and her sister Kalindhy, as per the terms of which, Kalindhy was given 50 cents of property. The said 50 cents of property has been identified by the Advocate Commissioner and shown in the plan appended to Ext. C5 report. The one cent of property out of the 27 cents obtained by Kunhi Kali included in the D schedule to Ext. A5 settlement deed has also been identified by the Advocate Commissioner and shown in the said plan. It is stated by the Advocate Commissioner in Ext. C5 report R.S.A.No.410 of 2011 : 19 : that the remaining property out of 372 cents viz, (1) 93 cents out of the 143 cents obtained by Govindan, (2) plaint B schedule property viz, 26 cents out of 27 cents obtained by Kunhi Kali and (3) plaint A schedule property excluding plaint B and C schedule properties viz, 71 cents obtained by Vasudevan, totaling to 190 cents is lying as contiguous block and consequently the same were shown as a single block in the plan. It is stated by the Advocate Commissioner in Ext. C5 report that the boundaries of the said property could not be fixed for want of sufficient indications in the documents of the parties. In short, in the light of Ext. C1 and C5 reports, it cannot be said that the identity of either plaint A schedule property or plaint B schedule property has been established in the proceedings. In so far as plaint B schedule property has not been identified, a decree cannot be granted to the plaintiff for recovery of the same. At the same time, in so far as it is found that the plaintiff has title to 97 cents of property included in plaint A schedule and in so far as the R.S.A.No.410 of 2011 : 20 : plaintiff is not in possession of the said 97 cents of property, even according to the first defendant, the plaintiff cannot be non suited on account of the inability of the Advocate Commissioner to fix the boundaries of the properties. In a case of this nature, especially in the light of the provision contained in Article 300A of the Constitution, according to me, it is obligatory for the court to fix the identity of the respective properties having regard to the intention of the parties as discernible from their title deeds, and the court cannot leave the plaintiff in the lurch, especially in the light of the principle _ubi jus ibi remedium_ (where there is a right, there is a remedy). The only option left to this court, in the circumstances, is to remit the matter to the trial court again for the limited purpose of locating the 97 cents of property obtained by the plaintiff in terms of Ext.A1 sale deed. It needs to be clarified that in the absence of sufficient materials, the Commissioner to be appointed by the court for locating the property must be guided by sound logic, rational R.S.A.No.410 of 2011 : 21 : reasoning, common sense and urge for public good as clarified by the Apex Court in an identical situation in **Dhannalal** v. **Kalawatibai and others** (AIR 2002 SC 2572). The relevant passage in the judgment reads thus : “Both the learned senior counsel for the parties stated that there is no specific statutory provision nor a binding precedent available providing resolution to the problem posed. Procedural law cannot betray the substantive law by submitting to subordination of complexity. Courts equipped with power to interpret law are often posed with queries which may be ultimate. The judicial steps of judge then do stir to solve novel problems by neat innovations. When the statute does not provide the path and precedents abstain to lead, then they are the sound logic, rational reasoning, common sense and urge for public good which play as guides of those who decide. Wrong must not be left unredeemed and right not left unenforced.” The question formulated for decision in the second appeal is thus answered in favour of the plaintiff. In the result, the judgments and decrees impugned in the Second Appeal are set aside and O.S. No. 554 of 1986 is remitted to the trial court. The trial court shall appoint an Advocate Commissioner, sufficiently senior, to locate the 97 cents of property obtained by the plaintiff in terms of Ext. A1 sale deed as found in this R.S.A.No.410 of 2011 : 22 : judgment out of the 190 cents of property in survey no. 247/2 shown in the plan appended to Ext. C5 report. The Advocate Commissioner shall ignore the portion of the pathway shown in the said 190 cents in the plan and locate the properties having regard to the intention of the parties as discernible from the title deeds. It is made clear that in the absence of sufficient materials, the Commissioner shall locate property applying sound logic, rational reasoning, common sense and urge for public good. For identifying the property, the Advocate Commissioner is free to adopt the general idea on which the properties have been identified and shown in the plan appended to Ext. C1 report. On receipt of the report of the Advocate Commissioner, the court below shall dispose of the suit afresh in accordance with the law. The parties shall appear before the court below on 16-8-2018. The suit being one of the year 1986, the trial court shall dispose of the same within three months thereafter. The court fee paid on the memorandum of second appeal shall R.S.A.No.410 of 2011 : 23 : be refunded to the appellant. The registry shall retransmit the records to the trial court forthwith. **==> picture [416 x 68] intentionally omitted <==** **sd/-** **P.B. SURESH KUMAR, JUDGE** **==> picture [415 x 101] intentionally omitted <==**