KRISHNA PILLAI v. PAPPYAMMA PADMINI AMMA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941** **RSA.No. 971 of 2006** **AGAINST THE JUDGMENT AND DECREE DATED 15-02-2006 IN AS 21/2000 of SUB COURT, THIRUVALLA** **AGAINST THE JUDGMENT AND DECREE DATED 25-03-1999 IN OS 483/1990 of MUNSIFF COURT, THIRUVALLA** **APPELLANT/APPELLANT/1ST PLAINTIFF:** **KRISHNA PILLAI, KALATHRAYIL HOUSE, VENPALA MURI, KUTTOOR VILLAGE.** **BY ADV. SRI.G.UNNIKRISHNAN** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS IIND PLAINTIFF:** **1 PAPPIYAMMA PADMINI AMMA, THAYYIL VEEDU, VENPALA MURI,, KUTTOOR VILLAGE. *2 T.M.SREEDHARAN PILLAI(DIED), THAYYIL HOUSE, VENPALA MURI,, KUTTOOR VILLAGE (LR RECORDED) AT THE RISK OF THE FIRST RESPONDENT SHE IS REOCRDED AS THE SOLE LEGAL HEIR OF DECEASED R2 AS PER THE ORDER DATED 17.12.2018 IN RSA 971/2006 3 OMANA, KIZHAKKETHIL VEEDU, VENPALA MURI, KUTTOOR VILLAGE. 4 RAJAMKUTTY NAIR, KALATHRAYIL HOUSE, VENPALA MURI, KUTTOOR VILLAGE. BY ADVS.** > **R1 SRI.S.SUBHASH CHAND SMT.AJITHA V** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **RSA.No. 971 of 2006 2** ## **JUDGMENT** The plaintiff came up with this appeal aggrieved by the decree and judgment of both the trial court and the first appellate court. The suit is one for fixation of boundary. There are four schedule attached to the plaint. Respective documents of title also produced in Exts.A1 and A2, A3 and A6. A survey commissioner was also deputed, who in turn prepared a survey plan locating the property of plaintiff and also the property of defendants inclusive of six cents of property covered by an earlier suit in O.S.No.585 of 1988 covered by Ext.B1 judgment. Both the trial court and the first appellate court dismissed the suit mainly on two grounds that the plaintiff failed to prove and establish the identity of their properties and that the suit would stand as barred by Section 11 CPC in view of **RSA.No. 971 of 2006 3** Ext.B1 judgment. 2. The following substantial questions of law raised for consideration in this appeal: i) Is the finding of the courts below, that - the suit for fixation of boundary without a further relief of declaration of title will not lie, sustainable in law ? ii) Has not the courts below erred in law in not considering the application for amendment of plaint ? iii) Has not the courts below erred in not considering the evidence adduced by the appellant ? iv) Is the finding of the courts below sustainable in law and on facts on the available evidence on record ? 3. Yet another question also came up for consideration as to whether it is permissible either for the trial court or for the first ## **RSA.No. 971 of 2006 4** appellate court to dismiss a suit on the ground of failure to identify the plaint schedule property by the survey commissioner at the time of preparation of the survey sketch and whether the first appellate court and the trial court justified in dismissing the suit on that ground. 4. Regarding the question of _res judicata_ the earlier suit in O.S.No.585 of 1988 covered by Ext.B1 judgment is confined to six cents property comprised in survey No.473/1 owned by the defendants. No doubt, the suit will stand barred by _res judicata_ to the extent of adjudication already made under Ext.B1 judgment. But no decree was produced. The learned counsel for the respondents pressed for a remand of the matter to the trial court so as to enable him to produce the earlier decree. 5. Insofar as the claim made by the plaintiff over item Nos.1 to 3 very serious mistakes were ## **RSA.No. 971 of 2006 5** committed by the surveyor by locating nine cents of property out of survey No. 473/2 instead of nine cents from survey No.465/12 which is scheduled in the plaint as item No.1 covered by Ext.A2. There is no dispute with respect to the title vested with the plaintiff under Ext.A2 document over that property. It is not clear why nine cents taken out of survey No.473/2 instead of locating nine cents from 465/12. 6. Another extent of 32 cents of property covered by Ext.A2 comprised in survey No.474/10 and 474/11 was also located that is 14.275 cents of property out of survey No.474/10 and 11 cents out of 474/11. Total 25.275 cents. 6.775 cents found to be encroached by strangers also located by giving red shade. Item No.1A to the plaint covered by Ext.A3 is having an extent of 42.5 cents in survey No.465/12. But the commissioner though located 42.5 cents it is out of two survey ## **RSA.No. 971 of 2006 6** numbers i.e 465/12 and 473/2. The plaintiff does not have any property in survey No.473/2. No such case was advanced. The location of these two properties inclusive of property comprised in survey No.473/2 is so erroneous and it cannot be sustained. Though an application was submitted by the plaintiff in the trial court for setting aside commissioner's report and survey plan it was not accepted by the trial court. It was taken as a ground of appeal before the first appellate court as well as before this court. A Division Bench of this court had the occasion to consider the question whether it is permissible to set aside a commissioner's report filed under Order 26 Rule 10 CPC, in _**Francis Assissi vs. Sr.Breesiya reported in 2017 (1) KLT 1041**_ and held that there is no provision for setting aside the commissioner's report except as per Rule 15 and 16 of Order 26 CPC. But it is permissible to issue a second ## **RSA.No. 971 of 2006 7** commissioner without setting aside the earlier one and that has not been adopted either by the trial court or by the first appellate court. The mistake committed by the surveyor and the commissioner in locating the plaint schedule property hardly a ground for rejecting the relief sought by the plaintiffs. The serious mistake committed by the surveyor and the commissioner shall not be put on the shoulder of the plaintiff when the plaintiff took pain to issue a survey commissioner for the purpose of adjudication of the dispute involved in the suit. Hence, the decree and judgment of the trial court and the first appellate court are liable to be set aside. I do so, by remanding the matter back to the trial court for fresh disposal in accordance with the law in force. The parties shall appear before the trial court on 20.6.2019. The parties are at liberty to adduce additional evidence and if ## **RSA.No. 971 of 2006 8** found necessary to amend their respective pleadings. Appeal is allowed in part accordingly. No order as to costs of appeal. Sd/- **P.SOMARAJAN, JUDGE** pm ## **// TRUE COPY // PA TO JUDGE**