OP(C) No.172/2010 (O.P.C.)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932 OP(C).No. 172 of 2010(O) -----------------------IA NO.3814/2009 IN OS.741/2001 of PRINCIPAL MUNSIFF COURT,IRINJALAKUDA .................... PETITIONER (S): -------------------- 1. SUJATHAN, S/O.EZHAPILLY APPU, HARIPALAM DESOM, POOMANGALAM VILLAGE, MUKUDAPURAM TALUK, THRISSUR DISTRICT. 2. UNNIKRISHNAN S/O -DO-DO- BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): --------------- SOOSI, W/O.KUNDUPARAMBIL XAVIER, HARIPALAM DESOM, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX OP(C) NO.172/2010 PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE PLAINT IN OS 741/2001 FILED ON 2.6.2001 BY THE RESPONDENT EXT.P2 TRUE COPY OF WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY EPTITIONERS ON 26.1.2003 EXT.P3 TRUE COPY OF THE REPLICATION DATED 27.2.2003 EXT.P4 TRUE COPY OF THE COMMISSIONER REPORT AND SURVEYOR SKETCH BY THE TALUK SURVEYOR ON 21.11.2002 EXT.P5 TRUE OPY OF IA NO.398/2003 DATED 27.2.2003 EXT.P6 TRUE COPY OF COUNTER DATED 10.3.2003 EXT.P7 TRUE COPY OF THE WARRANT OF APPOINTMENT OF COMMISSIONER AND THE REPORT AND PLAN EXT.P7(a) TRUE COPY OF THE PLAN OF COMMISSIONER REPORT DATED 24.10.2005 EXT.P7(b) TRUE COPY OF THE COMMISSION REPORT DATED 24.10.2005 EXT.P8 TRUE COPY OF IA NO.392/2006 IN OS 741/2001 FILED ON 4.2.2006 EXT.P9 TRUE COPY OF OBJECTION DATED 6.2.2006 EXT.P10 TRUE COPY OF THE ORDER DATED 15.2.2006 ON IA NO.392/2006 EXT.P11 TRUE COPY OF ORDER DATED 29.3.2006 REMITTING THE COMMISSIONERS REPORT EXT.P12 TRUE COPY OF JUDGMENT DATED 21.12.2006 IN WP(C) 20725/2006 OF THIS COURT EXT.P13 TRUE COPY OF IA 1321/2007 ON 4.6.2007 EXT.P14 TRUE COPY OF OBJECTION DATED 13.6.2007 EXT.P15 TRUE COPY OF WARRANT OF APPOINTMENT OF COMMISSIONER DATED 6.10.2007 EXT.P16 TRUE COPY OF COMMISSIONER REPORT ON 7.11.2009 EXT.P17 TRUE COPY OF THE MEMO PRODUCED BY THE ADVOCATE COMMISSIONER ON 19.11.2009 EXT.P17(a) TRUE COPY OF SKETCH PREPARED BY THE SURVEYOR PRODUCED BY THE ADVOCATE COMMISSIONER ON 19.11.2009 EXT.P17(b) TRUE COPY OF SKETCH PREPARED BY THE SURVEYOR PRODUCED BY THE ADVOCATE COMMISSIONER ON 19.11.2009 EXT.P17(c) TRUE COPY OF SKETCH PREPARED BY THE SURVEYOR PRODUCED BY THE ADVOCATE COMMISSIONER ON 19.11.2009 OP(C) NO.172/2010 EXT.P18 TRUE COPY OF THE OBJECTIONS OF THE PETITIONERS DATED 25.11.2009 EXT.P19 TRUE COPY OF OBJECTION BY THE RESPONDENT DATED 19.11.2009 EXT.P20 TRUE COPY OF IA NO.3814/2009 FILED BY THE PETITIONER DATED 25.11.2009 EXT.P21 TRUE COPY OF OBJECTION BY THE RESPONDENT DATED 3.12.2009 EXT.P22 TRUE COPY OF AFFIDAVIT OF THE FIRST PETITIONER DATED 11.2.2010 EXT.P23 TRUE COPY OF THE ORDER OF THE LEARNED MUNSIFFS DATED 25.6.2010 IN IA 3814/2009 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.172 of 2010 -------------------------------------Dated this the 3[rd] day of November, 2010.** ## **JUDGMENT** Defendant Nos.1 and 2 in O.S.No.741 of 2001 of the court of learned Munsiff, Irinjalakuda are the petitioners before me. Respondent, in the year 2001 instituted a suit for fixation of the southern and western boundary of her property and for consequential reliefs. Petitioners while resisting the suit made a counter claim for recovery of possession of property described in the counter claim as B schedule alleging that the said portion belonged to the petitioners and was trespassed upon by the respondent. Though the suit was instituted in the year 2001 still the parties are lingering around reports and plans submitted by the Advocate Commissioner and Surveyor, there having been remissions several times and some of the orders being called in question in this Court also in earlier proceedings. Challenge now is at the instance of petitioners/defendant Nos.1 and 2to the latest reports and plan submitted by Advocate Commissioner. 2. As per plaint schedule description and the plaint averments respondent claimed right, title and possession of 69 ½ cents in survey No.762/4 as per document No.2762 of 1992 and, stated to be bounded by road on the north, lane on the east and properties of the petitioners on the south and west. **OP(C)No.172/2010** 2 Petitioners alleged that respondent destroyed existing boundaries on the southern and western sides of her property. Petitioners claimed right, title and interest over 48 cents in survey No.762/2 a per document Nos.128 and 1636 of 1964 and described the said property as A schedule in the counter claim. B schedule according to them is part of the A schedule in the counter claim allegedly trespassed upon and taken forcible possession by the respondent. B schedule in the counter claim is a bit of land having width of 3 ½ links and length of 57.8 links described as situated on the west of property of respondent and, in continuation of that bit of land, yet another bit of land having width of one metre and length of 12.5 links on the south of property of respondent. 3. Initially the Advocate Commissioner with the assistance of a surveyor submitted Ext.P4, report and plan. Respondent requested for remission of that report and plan as per Ext.P5 (I.A.No.398 of 2003) and rejecting the objection of petitioners that request was allowed as per order dated 26.11.2004. Ext.P7 series are the reports and plans submitted after such remission. Respondent then filed I.A.No.392 of 2006 (Ext.P8) to set aside Ext.P7 series, report and plan. That application was dismissed as per Ext.P10, order dated 15.02.2006. While taking evidence in the case learned Munsiff passed Ext.P11, order dated 29.03.2006 remitting Ext.P4 and Ext.P7 series, reports and plans to the same Commissioner. Respondent challenged that order in this Court in W.P.(C) No.20725 of 2006 and Ext.P11, order was set aside as per Ext.P12, judgment of this Court to the extent that learned Munsiff was **OP(C)No.172/2010** 3 directed to decide whether remission should be to the same Advocate Commissioner or a fresh Commissioner has to be appointed. In the light of that direction respondent filed Ext.P13 (I.A.No.1321 of 2007) to appoint a new Commissioner (for inspection and report pursuant to order of remission dated 29.03.2006). That was objected by petitioners as per Ext.P14. But learned Munsiff vide order dated 06.10.2007 appointed a new Advocate Commissioner for carrying out the work pursuant to order of remission dated 29.03.2006. That Commissioner submitted Ext.P16, report and Ext.P17 series, plans after measurement of the property with the assistance of a Surveyor. Petitioners filed Ext.P20 (I.A.No.3814 of 2009) to set aside Ext.P16 and Ext.P17 series. On that application, Advocate Commissioner and Surveyor were examined as CW1 and CW2. Learned Munsiff dismissed Ext.P20, application as per Ext.P23, order which is under challenge in this petition. Learned counsel for petitioners contend that Ext.P16 and Ext.P17 series prima facie are unacceptable for the reason that even as per plaint schedule description, the suit property is bounded by road on the north and lane on the east. But Ext.P17 series show that lane is on the west of the suit property which the Advocate Commissioner and Surveyor were not able to clarify. According to the learned counsel Ext.P16 and Ext.P17 series suffer from inherent defect as above stated. A further contention that learned counsel advanced is that the order dated 06.10.2007 passed by the learned Munsiff appointing a new Commissioner is vitiated by procedural irregularity in that it amounts to calling for a fresh report and plan without setting aside the earlier reports and plans. Learned counsel has placed **OP(C)No.172/2010** 4 reliance on a Division Bench decision of this Court in **Swami Premananda** ## **Bharathi v. Swami Yogananda Bharathi (1985 KLT 144)** where it has been held that appointment of a second Commissioner without setting aside proceedings and report of the first Commissioner is not legal or proper. Learned counsel for respondent contends that there is no merit in the objection raised by petitioners nor in the request to set aside Ext.P16 and Ext.P17 series. Learned counsel states that it is clear from the evidence of CW2, Surveyor that he has not shown any lane on the west of the suit property and what is shown like a gap on the west of the suit property is part of property belonging to the petitioners. It is contended that the objection based on the decision in **Swami** ## **Premananda Bharathi v. Swami Yogananda Bharathi** (referred supra) has no legs to stand since it is not a case of a fresh report being called for but, as part of order remitting Ext.P4 and Ext.P7 series a new Commissioner has been appointed in place of Advocate Commissioner who had submitted Ext.P4 and Ext.P7 series and that being in tune with the judgment of this Court in W.P. (C) No.20725 of 2006 cannot be assailed by the petitioners in this proceedings. 4. I shall refer to the second limb of the argument advanced by learned counsel for petitioner based on the decision in **Swami Premananda** ## **Bharathi v. Swami Yogananda Bharathi** . There, it has been held that appointment of a second Commissioner without setting aside proceedings and report of the first Commissioner is not legal or proper. That decision has to be **OP(C)No.172/2010** 5 understood on the facts of the case where, in respect of the same matter and without setting aside the report of first Commissioner, again a report was called for through another Commissioner. The Division Bench said that the procedure is illegal since without setting aside the first report the court cannot call for a second report on the same facts and materials. This Court has held in **K.L.D.** **& M.M. Board Ltd. v. Achuthan (2001 (2) KLT 440)** that even without setting aside the first report it is within the power of court to to appoint a second commission to collect more details. Here is a case where as per order dated 29.03.2006 (Ext.P11) learned Munsiff while taking evidence in the case ordered that Ext.P4 and Ext.P7 series are to be 'remitted' to the same Commissioner for further report. There could be no doubt that it is within the power of court to remit a report, notwithstanding that none of the parties objected to it if for any reason the court is dissatisfied with the proceedings of the Commissioner (See Rule 10(3) of Order XXVI of the Code of Civil Procedure). I must also bear in mind that Ext.P11, order was not challenged by petitioners. Respondent challenged Ext.P11, order only to the extent it concerned appointment of the same Commissioner to conduct further inspection and submit report following the remission of Ext.P4 and Ext.P7 series. What was therefore in issue in W.P.(C) No.20725 of 2006 filed by petitioners against Ext.P11, order was only whether learned Munsiff was justified in appointing the same Commissioner (who had submitted Ext.P4 and Ext.P7 series) or whether in the light of the reports already submitted by the Advocate **OP(C)No.172/2010** 6 Commissioner concerned, learned Munsiff ought to have appointed another Advocate Commissioner to carry out work as per the order of remission dated 29.03.2006. It was argued before this Court in W.P.(C) No.20725 of 2006 that no purpose will be served by deputing the very same Advocate Commissioner pursuant to the order of remission dated 29.03.2006. This Court found merit in that argument and directed that learned Munsiff shall decide whether it is appropriate to appoint a new Commissioner or the same Advocate Commissioner has to be appointed. It is thereafter that respondent filed Ext.P13 (I.A.No.1321 of 2007) to appoint a new Commissioner. That was not for the purpose of calling for a fresh report notwithstanding that Ext.P4 and Ext.P7 series, but as far as I can understand was only to appoint another Commissioner in tune with the observation made by this Court in Ext.P12, judgment. It is accordingly that the present Advocate Commissioner was appointed as per order dated 06.10.2007 and it remains that what the Advocate Commissioner has done with the assistance of Surveyor is only to carry out the direction of learned Munsiff while ordering remission of Ext.P4 and Ext.P7 series as per order dated 29.03.2006. I am therefore unable to accept the argument that learned Munsiff has called for a fresh report in respect of the same matter without setting aside Ext.P4 and Ext.P7 series. In that view of mine, the decision in **Swami Premananda Bharathi v. Swami Yogananda Bharathi** relied on by learned counsel for petitioners has no application and that argument has to fail. **OP(C)No.172/2010** 7 5. The next question is whether objection raised by petitioners to Ext.P16 and Ext.P17 series is tenable. I referred to the chequered career this case had in the matter of reports and plans submitted by Advocate Commissioners and that a simple suit for fixation of boundary or as claimed by petitioners for recovery of possession of B schedule in the counter claim filed in the year 2001 still is in the course of consideration of reports and plans submitted by Advocate Commissioner. Of course, lapse of time is no ground to reject the objection raised by petitioners if it is otherwise tenable. I have taken through Ext.P16 and Ext.P17 series. Objection raised by petitioners is that while in the plaint schedule suit property is described as bounded by road on the west and lane on the east, Ext.P17 series give a different picture in that lane is shown as on the west of the suit property which is in contradiction with the boundary description which I have just stated above. Looking at Ext.P7 series it may appear to be so. In Ext.P16, paragraph No.2 last, Advocate Commissioner has reported that along the east of suit property there is a lane leading to the property of petitioners. What is relied on by learned counsel for petitioners is Ext.P17, series (see Ext.P17(a) where a small gap is shown on the western side of the property identified as plaint schedule property. In Ext.P7(b) the Surveyor has shown a similar small gap on the east of the suit property originating from road on the north). Looking at Ext.P17(a) as I stated it may prima facie appear that the lane is shown on the west of the suit property but CW2, Surveyor has clarified in his evidence that he has not shown any lane on the west of the suit property and that what appears like a lane on the west of the suit property is part **OP(C)No.172/2010** 8 of property of petitioners. So far as the northern boundary of the suit property is concerned, there is no dispute in that in Ext.P17 series it is shown as the road. In the light of clarification given by CW2, Surveyor I do not find merit in the objection of petitioners. That objection also has to fail. After all, report and plan submitted by Advocate Commissioner is only a piece of evidence. Learned Munsiff has to decide the case on evidence of course taking into account the reports and plans and other evidence on record, as well. Petition is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**