Peter Augustine v. Bharathy

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 3RD NOVEMBER 2010 / 12TH KARTHIKA 1932** **WP(C).NO. 15901 OF 2010(O)** **------------------------------------------** **OS.527/2006 OF II ADDL.SUB COURT,ERNAKULAM** **....................** ## **PETITIONER(S):** **----------------------** **PETER AUGUSTIN, AGED 64 YEARS, EX-SERVICEMAN, S/O. LATE AUGUSTIN, PARAVARA HOUSE, THYKKOODAM, VYTTILA.P.O, ERNAKULAM DISTRICT.** **BY ADV. SRI.KAPPILLIL ANILKUMAR SMT.K.U.MANJU** ## **RESPONDENT(S):** **-------------------------** **BHARATHY, AGED ABOUT 80 YEARS, W/O. BHASKARAN, MAMBRAYIL HOUSE, THYKOODAM, VYTTILA.P.O, ERNAKULAM DISTRICT.** ## **ADV. SRI.M.GOPIKRISHNAN NAMBIAR FOR R** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **APPENDIX ---------------** **PETITIONER'S EXHIBITS: ---------------------------------** **EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.527 OF 2006 DATED 18.9.2006.** **EXHIBIT P2 NO.632 OF 1965.** **TRUE COPY OF THE TITLE DEED I.E., DOCUMENT** **EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF THE LEARNED SECOND ADDITIONAL SUBORDINATE JUDGE IN I.A. NO.5933 OF 2006 DATED 6.10.2006.** **EXHIBIT P5 TRUE COPY OF TITLE DEED OF EXT.P2, I.E. NO.942/1124 M.E.** **EXHIBIT P6 TRUE COPY OF THE TITLE DEED TO EXT.P5 I.E., DEED NO.930 OF 1113 M.E.** **EXHIBIT P7 TRUE COPY OF THE JENMOM THEER DOCUMENT NO.249/1963 OF OF THE THRIPPUNITHURA SRO.** **EXHIBIT P8 TRUE COPY OF THE PARTITION DEED NO.1320/1120 M.E.** **EXHIBIT P9 TRUE COPY OF THE JENMOM THREER DOCUMENT NO.1334 OF 1963.** **EXHIBIT P10 TRUE COPY OF THE DOCUMENT NO.1339/1963 OF THRIPPUNITHURA SRO. EXHIBIT P11 TRUE COPY OF THE DOCUMENT NO.1349/1963. EXHIBIT P12 TRUE COPY OF THE DOCUMENT NO.1058/1965. EXHIBIT P13 TRUE COPY OF THE DOCUMENT NO.895/1966. EXHIBIT P14 TRUE COPY OF THE DOCUMENT NO.1967 OF 19764.** **: 2 :** **TRUE COPY OF THE DOCUMENT NO.1455/1122 M.E. TRUE COY OF THE DOCUMENT NO.1502/1124 M.E.** **EXHIBIT P15 TRUE COPY OF THE DOCUMENT NO.1455/1122 M.E. EXHIBIT P16 TRUE COY OF THE DOCUMENT NO.1502/1124 M.E. EXHIBIT P17. TRUE COPY OF THE DOCUMENT NO.2358 OF 1993** **EXHIBIT P18 TRUE COPY OF THE PARTITION DOCUMENT NO.2537/1993.** **EXHIBIT P19** **TRUE COPY OF THE DOCUMENT NO.3005 OF 1993.** **EXHIBIT P20 TRUE COPY OF THE ORIGINAL SKETCH OF THE PROPERTIES IN SURVEY NUMBER 1250 ISSUED TO THE PETITIONER BY THE KANAYANNUR TAHSILDAR AND TALUK SURVEYOR.** **EXHIBIT P21 TRUE COPY OF THE TAX RECEIPT DATED 16.5.2006 BY THE VILLAGE OFFICER, VYTTILA.** **EXHIBIT P22 TRUE COPY OF THE TAX RECEIPT DATED 28.8.2006 ISSUED BY THE VILLAGE OFFICER, VYTTILA.** **EXHIBIT P23 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.7893 OF 2003 DATED 29.6.2006.** **EXHIBIT P24 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.8276 OF 2006 DATED 14.7.2005.** **EXHIBIT P25 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE NO.5325 OF 2006 DTED 2.5.2006.** **EXHIBIT P26 TRUE COPY OF THE APPLICATION DTED 28.8.2006 SUBMITTED BY THE PETITIONER TO THE KANAYANNUR TAHSILDAR.** **EXHIBIT P27 TRUE COPY OF THE REPRESENTATION DATED 26.5.2009 ADDRESSED TO THE CHIEF MINISTER, REVENUE MINISTER, PRINCIPAL SECRETARY AND DISTRICT COLLECTOR, ERNAKULAM.** **EXHIBIT P28 TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 20.12.2007.** **: 3 :** **EXHIBIT P29 TRUE COPY OF THE COMMISSIONER REPORT AND SKETCH WITH THE HELP OF THE TALUK SURVEYOR DATED 3.2.2009 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P30 TRUE COPY OF THE DETAILED OBJECTION FILED BY THE WRIT PETITIONER/DEFENDANT ON 16.2.2009 BEFORE THE SUB COURT, ERNAKULAM.'** **EXHIBIT P31 TRUE COPY OF THE TRUE EXTRACT OF THE ORDER IN I.A. NO.1424 OF 2009 DATED 24.6.2009.** **EXHIBIT P32 TRUE COPY OF THE COMMISSION REPORT AND SKETCH DATED 30.1.2010 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P33 TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER DATED 9.2.2010 TO EXT.P32 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P34 TRUE COPY OF THE PROOF AFFIDAVIT ON 8.3.2010 DATED 9.3.2010 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P35 TRUE COPY OF THE PROOF AFFIDAVIT OF THE PETITIONER ON 16.3.2010 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P36 TRUE COPY OF THE TESTIMONY OF THE SON OF THE RESPONDENT/PLAINTIFF EXAMINED AS P.W1 BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P37 TRUE COPY OF THE TESTIMONIES OF THE WRIT PETITIONER/DEFENDANT BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P38 TRUE COPY OF THE TESTIMONIES OF THE TALUK SURVEYOR BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P39 TRUE COPY OF THE TESTIMONIES OF THE POONITHURA TAHSILDAR BEFORE THE SUB COURT, ERNAKULAM.** **EXHIBIT P40 TRUE COPY OF THE TESTIMONIES OF THE POONITHURA VILLAGE OFFICER BEFORE THE SUB COURT, ERNAKULAM.** **: 4 :** **EXHIBIT P41 TRUE COPY OF THE TESTIMONY OF THE ADVOCATE COMMISSIONER.** **EXHIBIT P42 TRUE COPY OF THE INTERIM ORDER OF THIS COURT IN W.P(C) 13228 OF 2010 DATED 16.4.2010.** **EXHIBIT P43 TRUE COPY OF THE ORDER DATED 5.4.2010 PASSED BY THE LEARNED SECOND ADDITIONAL SUB JUDGE, ERNAKULAM IN O.S. NO.527 OF 2006.** **RESPONDENT'S EXHIBITS: ----------------------------------NIL** **TRUE COPY** ## **THOMAS P.JOSEPH, J.** **==================================== W.P(C) No.15901 of 2010 ==================================== Dated this the 03[rd] day of November, 2010** ## **J U D G M E N T** Defendant in O.S. No.527 of 2006 of the court of learned Additional Sub Judge-II, Ernakulam is the petitioner before me aggrieved by Ext.P43, order passed by the learned Sub Judge on April 05, 2010 reopening the case and directing the Advocate Commissioner to inspect suit property again and submit further report in the light of direction contained in Ext.P43, order with the assistance of a private Surveyor named in that order. 2. Respondent-plaintiff filed O.S. No.527 of 2006 for a decree for fixation of the northern and western boundaries of the suit property over which she claimed title and possession as per Ext.P2, assignment deed. As per plaint schedule respondent is claiming right, title and possession over 53 cents in Sy.Nos.1250, 1262 and 1263 as per Ext.P2, assignment deed No.632 of 1965. According to the respondent there is no specific boundary on the north and west of the property and that is sought to be identified and fixed through the process of the court. Petitioner filed written statement contending that he has 58.140 cents comprised in **W.P(C) No.15901 of 2010** ## -: 2 :- Sy.No.1250. It is also the contention of petitioner that respondent has no right, title, interest or possession of any land in Sy.No.1250 but petitioner is not disputing right of respondent in the land comprised in Sy. Nos.1262 and 1263. In the course of the suit Advocate Commissioner inspected property with the assistance of a Taluk Surveyor thrice and submitted report. According to the petitioner, Advocate Commissioner and Surveyor were not able to identify item No.3 property in the plaint schedule which is described as comprised in Sy.No.1250 within the boundaries stated in Ext.P2, assignment deed. Report and plan were remitted as per Ext.P31, order and later Advocate Commissioner submitted Ext.P32, report and plan. To that report and plan petitioner submitted Ext.P33, objection stating that it was without reference to the documents of title referred to in the written statement/counter claim as the case may be that Advocate Commissioner and Surveyor measured the property. It was also contended that Advocate Commissioner and Surveyor had not measured the property in the actual possession of petitioner. With Ext.P32, report and plan and Ext.P33, objection preferred by petitioner on record parties went into evidence and evidence of both sides was recorded. Case was heard, it was taken for ## **W.P(C) No.15901 of 2010** ## -: 3 :- judgment on 31.03.2010 and then posted on 05.04.2010. That day learned Sub Judge passed Ext.P43, order observing that Advocate Commissioner and Surveyor have not complied with the directions issued by the court and that relevant documents were not taken into account for identification of the disputed property (item No.3 in the plaint schedule stated to be comprised in Sy.No.1250). Learned counsel for petitioner contends that respondent had not preferred any objection to Ext.P32, report and plan and further that it was without hearing parties that learned Sub Judge has passed Ext.P43, order. It is also contended that a further remission of Ext.P32, report was not necessary to decide the controversy in the light of the oral evidence given by P.W.1 on behalf of the respondent. Learned counsel has taken me through the oral evidence given by P.W.1 as to his ignorance about extent of property at the time Ext.P2 was executed in favour of respondent. Learned counsel also pointed out from the evidence of P.W.1 that he had no idea whether at the time of Ext.P2, sale deed property was got measured by the respondent. According to the learned counsel in the above circumstances a further remission of Ext.P32, report was uncalled for. Further objection raised by learned counsel is **W.P(C) No.15901 of 2010** ## -: 4 :- that in so far as there is no evidence to show that respondent is in possession of 16 cents in Sy.No.1250 referred to in the plaint schedule a mere suit for fixation of boundary would not lie. Learned counsel placed reliance on the decision in **Anjil Vellachi v. Mamuni Bhaskaran** (2009 (3) KHC 728). Placing reliance on the decision in **Narayanan v. Kumaran** ([2004] 4 SCC 26) it is contended that the schedule to the sale deed (Ext.P2) should not have been ignored and overlooked by the learned Sub Judge. According to the learned counsel court has inherent power but not to the extent learned Sub Judge has exercised while passing Ext.P43, order. Learned counsel for respondent contended that even going by Ext.P33, objection preferred by the petitioner to Ext.P32, report and the evidence of Advocate Commissioner it is evident that it was without reference to the documents referred to in the written statement/counter claim as the case may be property of petitioner was measured. The contention that parties should have been heard before passing Ext.P43, order cannot be sustained since according to the learned counsel Rule 10(3) of Order XXVI of the Code of Civil Procedure (for short, “the Code”) gives ample power to the court if dissatisfied with the existing report to remit the same and call for further details for a ## **W.P(C) No.15901 of 2010** ## -: 5 :- proper adjudication of the dispute. According to the learned counsel it is within the power of the court to exercise that power notwithstanding that all or any of the parties to the proceeding have not preferred any objection to the report. Learned counsel has placed reliance on the decision in **Sivaraman v. Narayanan** (1986 KLT 578 - paragraph 8) and **State v. Kodakkat Pocke** r (1987 [1] KLT 714 - paragraph 8). 3. That, the court has such a power is not disputed by the learned counsel for petitioner also and in the light of Rule 10 (3) of Order XXVI there cannot also be a dispute to the power which has been highlighted by this Court in **Sivaraman v. Narayanan** and **State v. Kodakkat Pocker** referred to above. It is held that even in the absence of any objection by any of the parties to the proceeding it is within the power of the court to direct further enquiry by the Advocate Commissioner or the Surveyor as the case may be if the Court is dissatisfied with the proceeding of the Advocate Commissioner or Surveyor. 4. On the question whether parties were heard before passing Ext.P43, order it is seen from the copy of B diary given to me by learned counsel for petitioner for perusal that after trial of the case parties were heard on 25.03.2010 and case was taken ## **W.P(C) No.15901 of 2010** ## -: 6 :- up for judgment on 31.03.2010 and then the case was posted on 05.04.2010. It is on 05.04.1020 that case was reopened and learned Sub Judge passed Ext.P43, order. While learned counsel for petitioner asserts that there was no hearing on 05.04.2010 on the question of remitting the report and plan learned counsel for respondent would contend that the information given to him is that the matter was heard. Learned counsel would also contend that even if there was no separate hearing on 05.04.2010 it was well within the power of court to exercise that under Rule 10(3) of Order XXVI of the Code the matter having been heard on 25.03.2010 and taken up for judgment on 31.03.2010. It is not disputed before me that parties were heard on the whole issue involved in the case including Ext.P32, report on 25.03.2010. If that be so and if on going through the records the court was dissatisfied with the report I am persuaded to think that it was well within the power of the court to direct the Advocate Commissioner to conduct further enquiry as provided under Rule 10(3) of Order XXVI of the Code. Hence the preliminary objection raised cannot be sustained. 5. Now the question is whether on the materials on record learned Sub Judge was justified in directing further enquiry. **W.P(C) No.15901 of 2010** ## -: 7 :- As I stated the dispute is regarding claim of respondent over 16 cents in Sy.No.1250 (described as item No.3 in the plaint schedule). Exhibit P2, assignment deed in favour of respondent takes in the said 16 cents in Sy.No.1250 as well though, according to the learned counsel for petitioner, prior documents of Ext.P2 (Exts.P5 to P7) would not show that assignors of respondent had title over property comprised in Sy. No.1250. But it is not disputed that both parties claimed right, title and interest over respective items from a common Jenmi. Question whether respondent has title and possession of item No.3 in the plaint schedule – 16 cents in Sy.No.1250 is a matter which trial court has to decide after appreciating the evidence on record. I therefore do not venture to go into that question at this stage as it would be unwarranted. 6. Now I shall come to the question whether learned Sub Judge was justified in remitting Ext.P32, report for further enquiry. For that, a reference should be made to the objection preferred by petitioner (Ext.P33) where in paragraph 7, petitioner would say that the Commissioner was not inclined to peruse relevant documents for e.g., the documents concerning property in the possession of petitioner. Thus even according to the **W.P(C) No.15901 of 2010** ## -: 8 :- petitioner it was without reference to all the relevant documents at lest concerning title and possession claimed by petitioner that Advocate Commissioner and Surveyor prepared Ext.P32, report and plan. Useful reference can also be made to Ext.P43, order where in paragraph 9 learned Sub Judge has observed that the Advocate Commissioner has reported that plaint schedule could not be identified as the boundary on the northern side did not tally. The dispute appears to be concerning plots H and E in Ext.C1(a), plan (there was no dispute for the petitioner concerning plots A and B in Ext.C1(a), plan). Commissioner and Surveyor found that there is a house situated in plot B (which admittedly belongs to the respondent) and that a portion of that house came in plot H (disputed by the petitioner as belonging to the respondent). In paragraph 11 learned Sub Judge has observed that Advocate Commissioner was directed to identify the suit property with reference to document Nos.249 of 1963, 632 of 1965, 930 of 1113 M.E and 924 of 1124 M.E. It was also directed that identification shall be based on the documents mentioned in paragraphs 10, 11 and 13 of the written statement/counter claim of the petitioner. But the Advocate Commissioner when examined as CW1 stated that properties covered by documents ## **W.P(C) No.15901 of 2010** ## -: 9 :- mentioned in paragraph 11 of the written statement/counter claim of petitioner are not separately shown in the plan. Commissioner added that properties are not plotted with reference to the documents relied on by petitioner. Learned Sub Judge came to the conclusion that it is therefore clear that Commissioner has not refereed to all the documents mentioned in the order passed by the learned Sub Judge while remitting Ext.P31, report and plan. Learned Sub Judge was also of the view that considering nature of the dispute (particularly the fact that a portion of the house belonging to the respondent and situated in plot B was found situated in plot H also) that it is necessary to locate the property as per title deeds or even possession. I must also bear in mind that parties are tracing their right, title and interest from a common Jenmi. It is in these circumstances that learned Sub Judge felt dissatisfied with Ext.P32, report and plan and decided that the matter has to be remitted to the Advocate Commissioner to call for further details. That I am satisfied was well within the power of learned Sub Judge and having regard to the facts and circumstances and materials on record I do not find reason to interfere with the dissatisfaction expressed by the learned Sub Judge regarding Ext.P32, report and plan. I must also bear in ## **W.P(C) No.15901 of 2010** ## -: 10 :- mind that endeavour of court is to settle the controversy for ever and not leave the matter midway through. Every endeavour has to be made, nay, it is the duty of the court once the matter is brought before court to settle the controversy for ever. Here, it is a case of dispute regarding boundary. If petitioner has a contention that disputed property claimed by respondent is not in the possession of respondent, there is no prayer for recovery of possession and hence a prayer for fixation of boundary cannot be entertained, and if that contention were to be upheld, necessarily respondent has to suffer the consequence. But that cannot deter learned Sub Judge from getting proper identification of the property and deciding the controversy based on a proper report and plan. Keeping in mind that also, I do not find reason to interfere. 7. It is seen that learned Sub Judge has directed that one Omanakuttan, Surveyor shall assist the Taluk Surveyor. It is not disputed that it was the Taluk Surveyor who had assisted the Advocate Commissioner. Since it was the Taluk Surveyor who had assisted Advocate Commissioner there is no reason why Omanakuttan should be appointed as Surveyor to assist the Taluk Surveyor. Hence that part of the direction in Ext.P43, order is to ## **W.P(C) No.15901 of 2010** ## -: 11 :- be set aside and I do so. Instead, the Taluk Surveyor shall assist the Advocate Commissioner in his endeavour to identify the property in accordance with the direction contained in Ext.P43, order. Resultantly Writ Petition is disposed of with the direction that instead of the Surveyor named in Ext.P43, order it shall be the Taluk Surveyor who shall assist the Advocate Commissioner in obtaining further report and plan in accordance with the direction contained in Ext.P43, order. I make it clear that the same Advocate Commissioner shall be deputed for the work (if he were available). Learned Sub Judge shall issue necessary direction to the Advocate Commissioner and Taluk Surveyor to expedite their proceeding. ## **THOMAS P. JOSEPH, JUDGE.** vsv