OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2023-06-27
Court Decision / Holding: OP(C) will stand dismissed; the mutation cancellation will stand subject to the decision that may be taken in the suit; the court leaves open the mutation issue for consideration after the suit’s culmination and notes that a fresh commission report may be pursued if sought by the parties.
Final Disposition: OP(C) disposed; petition dismissed; mutation cancellation subject to suit outcome.

Parties to the Case

Appellants / Petitioners

JACOB VARGHESE S/o.M.T.VARGHESE MALIAKALKOONAN
GEORGE ALEXANDER S/O.T.G.ALEXANDER

Respondents

STATE BANK OF TRAVANCORE
N.V.KURIAN NADUVILE MULLOTH
GEORGE ALEXANDER THIRUVILANAL PANTHALAM
THE COMMISSIONER OF LAND REVENUE
THE DEPUTY COLLECTOR REVENUE VIGILANCE CENTRAL ZONE
THE ADDITIONAL TAHSILDAR ALUVA
THE VILLAGE OFFICER ALUVA EAST VILLAGE

Legal Representation & Advocates

Counsels for Petitioners

• Dinesh R. Shenoy
• Ebin Mathew
• P. Rohit Premandan Shenoy

Counsels for Respondents

• T. Sethumadhan (Sr.)
• K. Jaju Babu (Sr.)
• M. Jithesh Menon
• JACOB THIRUVINAL VARGHESE
• Smt. M. U. Vijayalakshmi
• K. Sujai Sathian
• Deepa Narayanan
• Preethi P.V.
• M. V. Balagopal Gouri Meempat
• Sangeetha Sreekumar
• Jithesh Menon (SC, SBI)
• Unnikrishnan S (GP)

Case Synopsis & Summary

This High Court of Kerala case concerns a dispute over mutation of a property and the admissibility/allocation of a Commissioner's Survey Report in OS 141/2011 before the Additional Sub Court, North Paravur. The petitioners, Jacob Varghese (OP(C) 2075/2015) and George Alexander (WP(C) 29797/2012), challenge the trial court’s order related to remitting or reconsidering the Commissioner's report and seek appropriate relief in the mutation matter. The court grounds its approach in a pre-existing principle from Francis Assissi v. Sr. Breesiya (2017) that a commission report filed under Rule 8-10 of Order XXVI CPC forms part of the court record and cannot be set aside or remitted merely for corrections. However, it recognizes that aggrieved parties may move for a fresh report, either through the same Commissioner or another appointee, and permits such remedy to be pursued while reserving rights of the first defendant. Consequently, the court dismisses the OP(C) and notes that the mutation dispute is left open for consideration after the suit’s culmination. The earlier mutation, cancelled presumably due to pendency of the suit, will stand subject to the ultimate decision in the suit. The decision upholds the settled position on commission reports while allowing a future re-report under the established mechanism.

Provisions of Law Cited

Order XXVI CPC, Rules 8 to 10

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants contended that the Commissioner's report should be remitted back or a fresh report ordered for reconsideration, arguing that errors or omissions in the report affect the mutation dispute and require a re-appraisal to ensure due process.

Contentions of Respondents

The respondents argued that the Commissioner's report filed under Order XXVI CPC forms part of the court record and cannot be remitted; parties aggrieved may seek another report under the same mechanism, and the petition should be dismissed accordingly.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Francis Assissi v. Sr.Breesiya	[2017 (1) KLT 1041]	Positive	The decision is cited as establishing that a commission report under Order XXVI Rules 8-10 CPC constitutes part of the court record and cannot be set aside or remitted; the current judgment applies this principle.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** **OP(C) NO. 2075 OF 2015** ## **AGAINST THE ORDER/JUDGMENT IN OS 141/2011 OF ADDITIONAL SUB** ## **COURT,NORTH PARAVUR** ## **PETITIONER:** **JACOB VARGHESE S/o.M.T.VARGHESE MALIAKALKOONAN, PUTHENCHIRA EAST P.O TRICHUR DISTRICT, REPRSENTED BY HIS POWER OF ATTORNEY HOLDER BIJU VARGHESE** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS:** **1 STATE BANK OF TRAVANCORE M.G.ROAD BRANCH, ERNAKULAM-682011 REPRESENTED BY ASSISTANDT GENERAL MANAGER, ERNAKULAM 2 P.G.DEENA POKKATHU HOUSE, KEEZHMAD, 683101** **3 N.V.KURIAN NADUVILE MULLOTH, KALOOR 682017** **4 GEORGE ALEXANDER THIRUVILANAL PANTHALAM, THEKKEKKARA VILLAGE, MAMPILAYIL KARA, THUMBAMAN 689502** **BY ADVS. T.SETHUMADHAVAN (SR.) SRI.K.JAJU BABU (SR.) SRI.M.JITHESH MENON SRI.JACOB THIRUVINAL VARGHESE SMT.M.U.VIJAYALAKSHMI K.SUJAI SATHIAN DEEPA NARAYANAN PREETHI. P.V.** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 2** **M.V.BALAGOPAL GOURI MEEMPAT SANGEETHA SREEKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, ALONG WITH WP(C).29797/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945 WP(C) NO. 29797 OF 2012** ## **PETITIONER:** **GEORGE ALEXANDER S/O.T.G.ALEXANDER, THIRUVINAL HOUSE, THUMPAMON P.O., MAMPILAYI, PATHANAMTHITTA DISTRICT.** **BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** |**1**|**THE COMMISSIONER OF LAND REVENUE**| |---|---| ||**PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM - 695**| ||**033.**| |**2**|**THE DEPUTY COLLECTOR**| ||**REVENUE VIGILANCE, CENTRAL ZONE, ERNAKULAM, MINI**| ||**CIVIL STATION, TRIPUNITHURA - 682 301.**| |**3**|**THE ADDITIONAL TAHSILDAR**| ||**ALUVA - 683 101.**| |**4**|**THE VILLAGE OFFICER**| ||**ALUVA EAST VILLAGE, ALUVA - 683 101.**| |**5**|**STATE BANK OF TRAVANCORE**| ||**M.G.ROAD, ERNAKULAM - 682 016, REPRESENTED BY ITS**| ||**ASSISTANT GENERAL MANAGER.**| **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 4** **BY ADVS. T.SETHUMADHAVAN (SR.) SRI.M.JITHESH MENON K.SUJAI SATHIAN DEEPA NARAYANAN PREETHI. P.V. M.V.BALAGOPAL GOURI MEEMPAT SANGEETHA SREEKUMAR SRI.JITHESH MENON, SC, SBI SRI.UNNIKRISHNAN.S, GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, ALONG WITH OP(C).2075/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 5** ## **JUDGMENT** Ext.P12 is the order passed by the trial court refusing to remit back the Commissioner's report which is a Survey Commission report prepared at the trial stage against which the 1st defendant came up. The legal position was subsequently settled by a Division Bench of this Court in **Francis Assissi v. Sr.Breesiya [2017 (1) KLT 1041]** that a commission report issued and submitted under Rule 8 to 10 of Order XXVI C.P.C. will form part of the record of the court and as such cannot be set aside or remitted back. At the same time it is permissible for the parties aggrieved by the earlier report to apply for another report either through the very same Commissioner or through some other person to be appointed. Reserving the right of 1st defendant to exhaust the said remedy, the present O.P(C) will stand dismissed. **==> picture [443 x 32] intentionally omitted <==** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 6** The writ petition is only with respect to the dispute pertaining to mutation of the property involved. The earlier mutation effected was subsequently cancelled presumably based on the pendency of the present suit and as such it is left open for consideration after the culmination of the suit. The cancellation of the mutation will stand subject to the decision that may be taken in the suit. Hence, with that observation, the writ petition is hereby disposed of. **==> picture [443 x 64] intentionally omitted <==** **Sd/P.SOMARAJAN JUDGE** **LEK** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 7** ## **APPENDIX OF OP(C) 2075/2015** ## **PETITIONER EXHIBITS** - **Exhibit P1** **TRUE COPY OF THE PLAINT FILED BY THE RESPONDENT BANK IN OS No.141/2011 BEFORE THE ADDITIONAL SUB COURT, NORTH PARAVUR** - **EXHIBIT P2 TRUE COPY OF COMMISSION APPLICATION** - **EXHIBIT P3 TRUE COPY OF WRITTEN STATEMENT WAS FILED BY THE PETITIONER** - **EXHIBIT P4 TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO THE COMMISSION APPLICATION** - **EXHIBIT P5 TRUE COPY OF THE COMMISSION REPORT FILED BY THE COMMISSIONER AS PER THE ORDER OF THE SUB COURT** - **EXHIBIT P6 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE COMMISSION REPORT** - **EXHBIT P7 TRUE COPY OF THE PETITION I.A.No.2588/2012 FILED BY THE PETITIONER UNDER ORDER 26 RULE 10(2) CPC** - **EXHIBIT P8 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT BANK** - **EXHIBIT P9 TRUE COPY OF DEPOSITIONS OF THE COMMISSIONER** - **EXHIBIT P10 TRUE COPY OF DEPOSITIONS OF THE SURVEYOR** - **EXHIBIT P11 TRUE COPY OF THE ARGUMENT NOTE FILED BY THE PETITIONER** - **EXHIBIT P12 CERTIFIED COPY OF THE ORDER BY LEARNED ADDL.SUB COURT IN I.A.No.2588/2012 IN O.S.No.141/2011** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 8 EXHIBIT P13 TRUE COPY OF THE AUCTION CERTIFICATE ISSUED BY ADDITIONAL SUB COURT, NORTH PARAVUR IN O.S.No.37/1977 EXHIBIT P14 DELIVERY REPORT ISSUED IN EA.No.103/88 IN EP.No.205/85 IN OS.No.37/1977 OF SUB COURT, NORTH PARAVUR EXHIBIT P15 TRUE PHOTOCOPY OF THE ORDER DATED 17.02.2012 IN I.A.No.1761/2011 IN OS.No.141/2011, ADDITIONAL SUB COURT** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 9** ## **APPENDIX OF WP(C) 29797/2012** **PETITIONER EXHIBITS** - **Exhibit P1 TRUE COPY OF SALED DEED DATED 15.03.1995** - **EXHIBIT P2 TRUE COPY OF THE ENCUMBARANCE CERTIFICATE DATED 13.06.1995 AND 13.12.2010** - **EXHIBIT P3 TRUE COPY OF THE CERTIFICATE DATED 1.4.2003 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P4** - **TRUE COPY OF THE POSSESSION CERTIFICATE 10.02.2004 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE TAX RECEIPT OF THE PETITIONER DATED 10.06.2010** - **EXHIBIT P6 TRUE COPY OF THE LOCATION SKETCH DATED 10.1.2011 ISSUED BY THE 4TH RESPONDENT** - **EXHBIT P7 TRUE COPY OF THE REPORT DATED 16.6.2010 ISSUED BY THE ALUVA TALUK SURVEY WING** - **EXHIBIT P8 TRUE COPY OF THE REPORT 11.02.11 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE PLAINT IN O.S.No.141/11 FILED BY THE 5TH RESPONDENT BEFORE THE HON'BLE SUB COURT, NORTH PARAVUR** - **EXHIBIT P10 TRUE COPY OF THE WRITTEN STATEMENT FILED IN O.S.No.141/2011 BY THE PETITIONER BEFORE THE HON'BLE SUB COURT, NORTH PARAVUR** **EXHIBIT P11 TRUE COPY OF THE REPORT ALONG WITH SKETCH SUBMITTED BY THE ADVOCATE COMMISSION DATED 03.09.2012 BEFORE THE BON'BLE SUB COURT, NORTH PARAVUR** **OP(C) NO. 2075 OF 2015 & WP(C) NO. 29797 OF 2012 10** - **EXHIBIT P12 CERTIFIED COPY OF THE NOTICE DATED 6.11.2012 ALONG WITH POSTAL COVER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER** - **EXHIBIT P13 TRUE COPY OF THE REQUEST DATED 17.11.2012 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P14 TRUE COPY OF THE REQUEST DATED 20.11.12 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT** - **EXHIBIT P15 TRUE COPY OF THE ORDER NO.D4-3439/11 DATED 14.11.2012 OF THE 3RD RESPONDENT** - **EXHIBIT P16 TUE COPY OF THE PROCEEDINGS No.R(B)810403/11 DATED 20.04.2011 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT** - **EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS No.213/V/E/11 DATED 22.10.2012 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT** - **EXHIBIT P18 TRUE COPY OF THE REQUEST MADE ON 18.05.2011 SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT** - **EXHIBIT P19 TRUE COPY OF THE REPORT OF THE 4TH RESPONDENT DATED 4.8.2012** - **RESPONDENTS EXHIBITS** - **EXHIBIT R-5(a) TRUE COPY OF THE DECREE IN O.S.No.37/1977 OF SUB COURT, NORTH PARAVUR** - **EXHIBIT R-5(b) TRUE COPY OF THE SALE SANNAD IN O.S.No.37/1977 OF SUB COURT, NORTH PARAVUR** |**OP(C) NO. 2075 OF 2015 &**|**OP(C) NO. 2075 OF 2015 &**| |---|---| |**WP(C) NO. 29797 OF 2012 11**|| |**EXHIBIT R-5(c)**|**TRUE COPY OF THE PLAINT IN**| ||**O.S.No.141/2011 OF SUB COURT, NORTH**| ||**PARAVUR**| |**EXHIBIT R-5(d)**|**TRUE COPY OF THE DELIVERY REPORT AND**| ||**SKETCH IN O.S.No.37/1977 ON THE FILE OF**| ||**SUB COURT, NORTH PARAVUR**| |**EXHIBIT R-5(e)**|**TRUE COPY OF THE COMMISSION REPORT IN**| ||**O.S.No.141/2011 ON THE FILE OF SUB COURT,**| ||**NORTH PARAVUR**| |**EXHIBIT R-5(f)**|**TRUE COPY OF THE PLAN IN O.S.No.141/2011**| ||**ON THE FILE OF SUB COURT, NORTH PARAVUR**|