M/S Rajagiri Rubber and Produce Co Ltd (formerly M/S Kalpetta Estate Ltd) vs M/S Madathilkandy Plantations

_**OP(C).1826/2019**_ 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 20[TH] DAY OF OCTOBER 2021 / 28TH ASWINA, 1943 OP(C) NO. 1826 OF 2019** **AGAINST THE ORDER/JUDGMENT IN I.A.NO.59 OF 2018 IN OS 16/2015 OF SUB COURT, SULTHAN BATHERY, WAYANAD** ## **PETITIONER/S:** M/S. RAJAGIRI RUBBER AND PRODUCE CO LTD (FORMERLY M/S.KALPETTA ESTATE LTD.), REPRESENTED BY ITS MANAGING DIRECTOR, MEPPADI POST, VYTHIRI, WAYANAD DISTRICT-673577. BY ADVS. BIJU ABRAHAM SRI.B.G.BHASKAR ## **RESPONDENT/S:** 1 M/S. MADATHILKANDY PLANTATIONS, A REGISTERED FIRM REPRESENTED BY ITS WORKING PARTNERS, M.K.PADMANABHAN NAMBIAR, S/O.KARUNAKARAN NAIR, AGED 73 YEARS, MADATHILKANDY HOUSE, PATHIYARAKKARA P.O., PALAYAD VILLAGE, VATAKARA, KOZHIKODE DISTRICT-673105. 2 M.K.ANIL KUMAR, AGED 42 YEARS S/O.M.K.PADMANABHAN NAMBIAR, MADATHILKANDY HOUSE, PATHIYARAKKARA P.O., PALAYAD VILLAGE, VATAKARA, KOZHIKODE DISTRICT-673105. BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 3.8.2021, THE COURT ON 20.10.2021 DELIVERED THE FOLLOWING: _**OP(C).1826/2019**_ 2 ## **V.G.ARUN, J. ----------------------------------------------O.P(C).No.1826 of 2019 ----------------------------------------------Dated this the 20[th] day of October, 2021** ## **JUDGMENT** The petitioner is the defendant in O.S.No.16 of 2015 on the files of the Subordinate Judge’s Court, Sulthan Bathery. The respondents filed the suit for recovery of possession of 270.06 Hectares on the strength of title allegedly derived under a court auction in a partition suit, O.S.No.1 of 1964, of the Sub Court, Vadakara. It is averred that though, as per the title deed, the extent of land is shown as 332.025 hectares, the total extent in the relevant survey number, as per the in revenue records, is only 270.06 Hectares. In its written statement, the defendant claimed that it had acquired right over the plaint schedule property in an earlier court sale conducted in another partition suit, O.S. No.34 of 1967 of the Sub Court, Vadakara and its legal predecessor had obtained physical possession of 810.91 Acres called Chullikkal Mala, as early as in 1937. With respect to the area and boundaries shown in the plaint schedule, the defendant's contention at paragraph 10 of the written statement is as under; _“10. The area of the land shown in the plaint schedule as 270.06 H and the boundaries shown in the plaint are incorrect. This defendant is in possession of 252.53 H in RS 21/1 of Kottappadi village within the boundaries shown in the_ _**OP(C).1826/2019**_ 3 _schedule below. Which part of this land is intended by the plaint schedule has to be determined by the issue of a commission with the assistance of the survey officials. Since the identity of the plaint property is essential in a suit for recovery of possession, the court has to exercise the power in the amended Order 26 Rule 9 and direct the plaintiff to take out a commission to inspect the property and submit a plan drawn to scale with a report with reference to the title deeds of the plaintiff and back documents, regarding the location, identity, boundaries, and RS number of the property intended by the plaintiff as the plaint schedule property. The defendant reserves its right to file an additional written statement after proper identification of the plaint property, if necessary.”_ 2. At the instance of the plaintiff the court appointed an Advocate Commissioner to identify and locate the plaint property with reference to the plaintiff's title deeds and the Advocate Commissioner submitted Exhibit P3 report and Exhibit P4 plan. Being dissatisfied with the report and plan, petitioner filed Exhibit P5 application for setting aside Exhibits P3 and P4 and appointing another Commissioner or to remit the report to the same Commissioner for rectifying the patent errors pointed out by the petitioner. Before the trial court, the Advocate Commissioner was examined as CW1. Thereafter Exhibit P5 application was heard and dismissed _vide_ Exhibit P8 order. Aggrieved, this original petition is filed seeking to set aside Exhibit P8 order and to allow Exhibit P5 application. _**OP(C).1826/2019**_ 4 3. Heard Sri.B.G.Bhaskar, learned counsel for the petitioner and Sri.M.P.Sreekrishnan, learned counsel for the respondents. 4. Learned counsel for the petitioner contended that, petitioner having successfully exposed the glaring defects in the report and plan, the trial court committed a gross illegality in refusing to set aside the report. The following are some of the patent mistakes pointed out; 5. Failure to mention about the difference of 61.955 Hectares between the area shown in the plaint and the area shown in the plaintiff's title deed. The plaint property was not identified with reference to the title deeds. In his attempt to show the area as 270.06 Hectares, as claimed in the plaint, the Commissioner included the Kodoorpuzha and vested forest as part of the plaint schedule land. The Commissioner failed to locate the four boundaries shown in the paint schedule and did not even attempt to ascertain the boundaries with reference to the Adangal Register, which, according to the learned counsel, is deliberate. 6. Learned counsel referred to the deposition of the Advocate Commissioner to contend that the Commissioner was ignorant of the procedure to be adopted for measuring and identifying the boundaries of large extents of land. Attention is drawn to the observation of the trial court that the Commissioner was not _**OP(C).1826/2019**_ 5 examined as part of the enquiry in the interlocutory application filed by the petitioner. Reliance is placed on the decisions in _**Retnamma and Others v. Mehaboo and Others**_ [2013 (2) KHC 670] _**, Paul v. Varghese and Another**_ [2016 (1) KHC 739] and _**Thankamani v. Vasanti and Others**_ [2020 (4) KHC 578] to highlight the duties and responsibilities bestowed on Advocate Commissioners. 7. The learned counsel for the respondent contended that the scope for interference against an order rejecting an application for setting aside an Advocate Commissioner’s report is very limited. According to the learned counsel, the Advocate Commissioner having acted in terms of the warrant and the directions issued to him, the attempt of the petitioner is to cause a roving enquiry to be conducted at the plaintiff’s expense was rightly repelled by the trial court. It is contended that minor mistakes in the Commission report no reason for setting aside the report, since the Commission report is only a piece of evidence and the suit is not decided based on the report alone. The Division Bench decision in _**Francis Assissi v. Sr.Breesiya**_ [2017 (1) KLT 1041] is pressed into service to contend that there is no provision under Order XXVI Rule 10 for setting aside an Advocate Commissioner’s report. 8. Order XXVI of CPC deals with the power of courts to issue Commissions. As per Order XXVI Rule 9, the court is empowered to _**OP(C).1826/2019**_ 6 issue a Commission to conduct local investigation for the purpose of elucidating any matter in dispute. The provision makes it very clear that the Commission is issued for the purpose of aiding the court in elucidating the matter in dispute and not for providing evidence in support of the case of the plaintiff or the defendant. As opined by this Court in _**Paul**_ (supra), Advocate Commissioner is a representative of the court and not an agent of a party and is therefore duty bound to report facts which are material and relevant to decide the dispute before the court, whether they support or do not support the party on whose application he is appointed. In _**Thankamani**_ (supra), the trial court's duty to examine the Commission report and sketch to see whether they are sufficient to elucidate the matter in dispute has been emphasised. If the court finds that the report is not helpful in elucidating the matter in dispute, further enquiry has to be ordered as provided in Order XXVI Rule 10(3) of CPC. The legal position being as aforementioned, the trial court went wrong in holding that any discrepancy in the title and identity contained in the Commission report would only affect the plaintiff’s case adversely and it is not the headache of the defendant in the suit to set aside the report. 9. The specific case of the petitioner is that as per the title deed of the plaintiff, the total extent of the plaint schedule property _**OP(C).1826/2019**_ 7 is 332.025 Hectares, whereas the Commissioner has measured the area of the plaint schedule property as 270.0564 Hectares. It is alleged that, in spite of the huge difference in area, the boundaries of the property is shown to be the same. It is seen that pointed questions with respect to the measurement were put to the Advocate Commissioner during his cross-examination and some crucial answers elicited. Surprisingly, the impugned order is passed under the impression that the Commissioner was not examined and no explanation elicited from him regarding the alleged ambiguous and confusing statements in the report. The omission on the part of the trial court to consider the deposition of the Advocate Commissioner cuts at the root of the findings in the impugned order. In the result, the original petition is allowed. Exhibit P8 order is set aside. The trial court is directed to consider I.A.No.59 of 2018 afresh, untrammelled by the findings in the impugned order. **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**OP(C).1826/2019**_ 8 ## **APPENDIX OF OP(C) 1826/2019** PETITIONER EXHIBITS - EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.16/15 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P3 A TRUE COPY OF THE COMMISSION REPORT FILED IN I.A.NO.199/2016 IN OS.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P4 A TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER ALONG WITH COMMISSION REPORT IN I.A.NO.199/2016 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P5 A TRUE COPY OF THE APPLICATION FILED AS I.A.NO.59/2018 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P6 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A.NO.59/2018 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY. - EXHIBIT P7 A TRUE COPY OF THE DEPOSITION OF THE COMMISSIONER IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY AS CW1. - EXHIBIT P8 A TRUE COPY OF THE ORDER IN I.A.NO.59/2018 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY DATED 23.03.2019.