Pulinkudi Sivakeshethram alias Sreenarayana Guruswamy Smaraka Bhajana Madom v. Ummini Ammukutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932** **SA.No. 807 of 1996()** **--------------------** **(AS.1077/94 OF SUB COURT, NEYYATTINKARA O.S.157/89 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA)** ## **APPELLANTS/ APPELLANTS/DEFENDANTS:** **-------------------------------------------------------------** **1. PULINKUDI SIVAKSHETRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM, PULINKUDI CHOWARA KOTTUKAL DESOM, KOTTUKAL PAKUTHY.** - **2. V.SATHYASEELAN, S/O.LATE VELAYUDHAN K., 'SATHYASEENA', PULINKUDI, CHOWARA P.O., THE PRESENT PRESIDENT OF 1ST APPELLANT PULINKUDI SIVAKSHETHRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM (SRI.GOPALAN VENU WAS THE PRESIDENT OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING SUIT AND SRI.K.BHAHULEYAN WAS THE PRESIDENT OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILIG APPEAL SUIT).** - **3. P.S.SATHIKUMAR, S/O. B.SADASIVA PANICKER, S.N.HOUSE, PULINKUDI, MULLOOR POST, THE PRESENT SECRETARY OF 1ST APPELLANT PULINKUDI SIVAKESHETHRAM ALIAS SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADAM (SRI.VISWAMBARAN PANICKER SREENIVASAN WAS THE SECRETARY OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING SUIT AND SRI.G.MOHANAKUMAR WAS THE SECRETARY OF THE 1ST DEFENDANT/1ST APPELLANT AT THE TIME OF FILING APPEAL SUIT.** **SUBSTITUTING A2 & A3 IN IA 1253/06** **------------------------------------------------------** **A2. V.K.SREENIVASAN, SREESHIBIJAM, PULINKUDI, VIZHINJAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** **A3. M.SANTHOSH KUMAR, RESIDING AT JANU BHAVAN, KANJIRAKULAM VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** **CAUSE TITLE OF MEMORANDUM OF S.A. IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF APPELLANTS 2 AND 3 IN THE SECOND APPEAL AS PER ORDER DATED 4.7.06 IN IA. 1253/06 IN SA.** **SA.No. 807 of 1996()** ## **-----------------------------** ## **AGAIN SUBSTITUTING A2 & A3 IN IA.1546/07** **----------------------------------------------------------------** **A2. PUSHKARA PANICKER, AGED 69, S/O.PONNAN PANICKER, 'SURESH BHAVAN,', PULINKUDI, KOTTUKAL VILLAGE, MULLOOR P.O., NEYYATTINKARA, TRIVANDRUM, THE PRESENT PRESIDENT OF 1ST PETITIONER/1ST APPELLANT PULINKUDI SIVAKESHETHRAM @ SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM. (SRI.V.SATHASEELAN WAS THE PRESIDENT OF THE 1ST APPELLANT AS THE TIME OF FILING S.A.)** **A3. C.SURESH BABU 'C.B.BHAVAN, PULINKUDI CHOWARA P.O. VIA BALARAMAPURAM, TRIVANDRUM, THE PRESENT GENERAL SECRETARY OF 1ST APPELLANT, PULINKUDISIVAKESHETHRAM @ SREENARAYANA GURUSWAMY SMARAKA BHAJANA MADOM. (SRI.P.S.SATHIKUMAR WAS THE SECRETARY OF THE 1ST APPELLANT AT THE TIME OF FILING S.A.)** **CAUSE TITLE OF MEMORANDUM OF S.A. IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF THOSE APPELLANTS 2 AND 3 IN THE SECOND APPEAL AFTER DELETING THE NAME AND ADDRESS OF THE PRESENT APPELLANTS NO.2 AND 3 AS PER ORDER DATED 4.9.07 IN IA.1546/07 IN S.A.** ## **SUBSTITUTING A2 & A3 IN IA 1296/09** **--------------------------------------------------------** **A2. D.S.SIVARAJAN, AGED 53, S/O.DIVAKARAN, 'LAL HOUSE', PULINKUDI, CHOWARA P.O., TRIVANDRUM DISTRICT THE PRESET PRESIDENT OF PULINKUDI SIVAKSHETHRAM SREENARAYANA GURUSWAMY SMARAKA BHAJANAMADOM.** **A3. SHAIJU AGED 26, S/O.K.M.MOHANAN, PANANINNATHATTU PUTHE VEEDU, THEKKEKONAM, KOTTUKAL P.O., TRIVANDRUM, THE PRESENT SECRETARY OF DO. DO.** **CAUSE TITLE OF MEMORANDUM OF SA IS AMENDED BY SUBSTITUTING THE ABOVE APPELLANTS IN THE PLACE OF THOSE APPELLANTS 2 & 3 IN THE SECOND APPEAL AFTER DELETING THE NAME AND ADDRESS OF THE PRESENT APPELLANTS NO.2 AND NO.3 AS PER ORDERS DATED 30.6.09 IN IA.1296/09 IN SECOND APPEAL.** **BY ADVS. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE SRI.T.M.CHANDRAN SRI.V.A.SASIDHARAN** ## **SA.No. 807 of 1996()** **-----------------------------** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **----------------------------------------------------------** - **UMMINI AMMUKUTTY, BHAKTHIVILASAM VEEDU, FROM KIZHAKKARUKU VEEDU, PUTHUVALATHOTTAM, CHOWARA, KOTTUKAL DESOM, KOTTUKAL PAKUTHY, HAVING ALSO THOTTATHUVILAKETHU VEEDU, KADAKULAM DESOM, KOTTUKAL PAKUTHY, HAVING ALSO POONKOTTUKONATHU VALIYA VEEDU, VENGANOOR DESOM, THIRUVANANTHAURAM PAKUTHY. (DIED. LRS IMPLEADED)** **ADDL.R2 TO R4 IMPLEADED** **----------------------------------------** **R2. P.B.GOPINATHAN, BHAKTHIVILASAM, PULIMKUDI, MULLOOR P.O., VIA VIZHINJAM, THIRUVANANTHAPURAM DIST.** ## **R3. A.SUSEELA DEVI OF DO. DO.** **R4. A.SYAMALA DEVI, VEDIVECHANKOVIL P.O.** **(VIA) BALARAMAPURAM, THIRUVANANTHAPURAM DISTRICT.** **LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R4 AS PER ORDER DT. 7.12.04 ON IA. NO.2374/04 .** **BY ADV. SRI.G.S.REGHUNATH** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27.1.2011, ALONG WITH CRP.1956/2000 & CRP.1957/2000, THE COURT ON 16.2.2011 DELIVERED THE FOLLOWING:** **VK** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 807 of 1996 & C.R.P. Nos. 1956 & 1957 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of February, 2011. ## **JUDGMENT** The defendants in O.S.157 of 1989, who suffered concurrent decrees are the appellants. In execution of the decree so obtained by the plaintiff, the defendants filed two applications, one for deputing a commissioner to verify whether the execution had been carried out in terms of the decree and another against the order closing the execution proceedings. C.R.Ps arise from the respective orders against them. The fate of the C.R.Ps will therefore depend upon the fate of the Second Appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff and his mother Madhevi Ummini obtained 23 cents of property as per Ext.A1 dated 9[th] Medam 1113. By Ext.A2 dated 13[th] Thulam, 1114 they sold 15 ½ cents to the defendants. The balance 7 ½ cents was S.A.807/96 & C.R.Ps1956 & 1957/2000. . 2 retained by them. The total extent of 23 cents is shown as plaint A schedule and 15 ½ cents sold to the defendants is shown as plaint B schedule. Plaint C schedule is the balance 7 ½ cents. Plaint B schedule property lies on the eastern side of plaint C schedule property. Plaintiff wanted to put up boundary on the eastern side of C schedule property. The defendants were not amenable to such a course and they objected to the same and that has resulted in the filing of the suit. 3. The defendants resisted the suit. They disputed that the plaint C schedule was included in the gift deed relied on by the plaintiff namely Ext.A1. The property now owned by the plaintiff out of the property obtained under the gift deed lies within well demarcated boundaries of the property of the temple. The attempt of the plaintiff is to grab a portion of the temple property under the guise of laying a boundary on the eastern side of plaint C schedule S.A.807/96 & C.R.Ps1956 & 1957/2000. . 3 property. According to them, there is no bonafides in the suit and it is only to be dismissed. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A3(c) from the side of the plaintiff. The defendants had examined D.W.1 and marked Exts. B1 and B2 series. Exts.C1, C1(a), C2 and C2(a) are commission report, sketch and plans. On an evaluation of the evidence, the trial court came to the conclusion that the plaint C schedule property belongs to the plaintiff and he was allowed to put up a boundary along BE line in Ext.C2 plan. The plaintiff was also given a decree to realise half the expenses for putting up such a boundary. Ext.C2(a) plan was made part of the decree. 5. The defendants carried the matter in appeal as A.S.1077 of 1994 before the Sub Court, Neyyattinkara. The lower appellate court on an independent evaluation of the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 4 evidence concurred with the finding of the trial court and dismissed the appeal. The lower appellate court also dismissed I.A. 1356 of 1995 seeking to amend the written statement and to raise additional pleadings. 6. Aggrieved by the judgments and decrees of the courts below, the defendants have preferred the Second Appeal. Notice is seen issued on the following questions of law: _“a) Whether it is proper for the first appellate court to discard prayer for an amendment when specific pleas of limitation and adverse possession are raised._ _b) Whether the first appellate court was right in holding that the principle of estoppel will apply against defendants 2 and 3 particularly when no such plea is raised._ _c) Is the plaintiff liable to prove his case with respect to the measurements of the plaint schedule property._ _d) Whether the court can rely on the evidence of the Advocate Commissioner and the report and plan submitted by him._ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 5 _e) Whether the court is bound to allow the amendment application filed by the defendants at the appellate stage and give a chance to contest the suit especially when no immediate prejudice would be caused to the plaintiff?_ _f) Whether the court is bound to consider the documents produced by the parties?_ _g) Whether the court is justified in granting a decree for realisation of the half of the expense from the defendants for the construction of a wall to protect the plaintiff's property._ _h) Is the court entitled to issue a direction to the Advocate Commissioner to measure the property with re-survey plan and records so as to identify the plaint schedule property.”_ 7. Learned counsel appearing for the appellants raised three points for consideration. They are, i) the plaintiff has not proved his title to plaint C schedule property, ii) the commissioner has not identified the property with respect to the title deeds and iii) the commission report, on the basis of which relief was granted S.A.807/96 & C.R.Ps1956 & 1957/2000. . 6 to the plaintiff, is incorrect. Dilating on the above points, it was contended that the plaintiff has not succeeded in establishing that plaint C schedule forms part of the property obtained by her under Ext.A1. Both the courts below have not considered this aspect and that has resulted in miscarriage of justice. It was then contended that from the report and plan submitted, it can be seen that the identification of the property has not been done with respect to the respective title deeds. The commissioner has identified the property as shown by the plaintiff and that is unhelpful in resolving the dispute involved in this case. It was then contended that on a perusal of the resurvey sketch, it can be seen that the commission report on the very face of it is incorrect. Referring to Ext.C2(a), learned counsel pointed out that even going by the averments in the plaint, plaint C schedule property is well bounded on three sides, namely, northern, western and southern sides by well laid boundaries, and if that be so, the plot now identified by S.A.807/96 & C.R.Ps1956 & 1957/2000. . 7 the commissioner cannot be the plot over which the claim is made by the plaintiff. According to learned counsel, there has been an erroneous appreciation of the evidence resulting in totally incorrect findings and that calls for interference in second appeal exercising powers under Section 100 of the Code of Civil Procedure. 8. In reply, learned counsel for the respondent pointed out that none of the above contentions have been urged before the trial court and the above contentions do not therefore arise for consideration at all. There is no dispute regarding the title deed relied on by the plaintiff and there was also no plea that the commissioner has failed to identify the property with respect to the respective title deeds. It was not contended either before the trial court or before the lower appellate court that on a comparison of the commission report with the resurvey sketch, it can be seen that the commission report is incorrect. The defendants have filed an application for producing resurvey plan S.A.807/96 & C.R.Ps1956 & 1957/2000. . 8 seeking aid of Order 41 Rule 27 of the Code of Civil Procedure only at the second appellate stage. Learned counsel went on to point out that there are no grounds made out to receive the documents in evidence since the reasons given do not fall within the ambit of the said provision. Learned counsel also took objection to the petition filed by the appellants seeking to amend the written statement incorporating the plea regarding the incorrectness of the report. Learned counsel then contended that the findings of both the courts below are based on evidence on record and are questions of fact. There is no contention on behalf of the appellants either before the courts below or in the memorandum of appeal that the courts below have misdirected themselves on facts or had not appreciated the materials on record in the proper perspective or that the findings are perverse. Relying on the decision reported in **Narayanan Rajendran v. Lekshmy Sarojini** ((2009) 5 SCC 264) it was contended that no interference is called for S.A.807/96 & C.R.Ps1956 & 1957/2000. . 9 with the judgments and decrees of the courts below. Learned counsel also emphasised that none of the defendants have gone into the box to depose their case and in such a situation, it is only proper that an adverse inference be drawn against them. For the said proposition, learned counsel relied on the decision reported in **Adivekka v. Hanamavva Kom Venkatesh** (AIR 2007 SC 2025). It was also pointed out by the learned counsel for the respondent that there is no bonafides in the challenge to title because the defendants have taken assignment from the plaintiffs out of the property obtained by them under Ext.A1 and the suit property is the balance portion retained by the plaintiffs after assigning B schedule property to the defendants. It is pointed out that the defendants are estopped from contending that the plaintiff has no title to plaint C schedule property. In support of his contention learned counsel relied on the decision reported in **B.L. Sreedhar v. K.M. Munireddy** ((2003) 2 SCC 355). S.A.807/96 & C.R.Ps1956 & 1957/2000. . 10 9. It must at once be noticed that both the courts below have found in favour of the plaintiff. The courts below have found that the Commission plan, namely Ext.C2(a) is acceptable and C schedule as identified by the commissioner in Ext.C2(a) belongs to the plaintiff. 10. As rightly pointed out by the learned counsel for the respondent, the defendants cannot be heard to say that the plaintiff has no title to the suit property. Admittedly, out of the 23 cents in Sy. No.481/1, which is shown as A schedule, 15 ½ cents was sold to the defendants, which is shown as B schedule. The balance 7 ½ cents, which has been retained by the vendees under Ext.A2 is shown as plaint C schedule property. Having obtained assignment of a portion of the property obtained by the plaintiff under Ext.A1, as rightly pointed out by the learned counsel for the respondents, the defendants are estopped from contending that the plaintiffs have no right over plaint C schedule property. In the decision reported in S.A.807/96 & C.R.Ps1956 & 1957/2000. 11 . **B.L.Sreedhar v. K.M.Munireddy** ((2003) 2 SCC 355) it was held as follows: _“”In our old books,” said Mr.Smith in his notes to Duchess of Kingston case,_ _“_ truth appears to have been frequently shut out by the intervention of an estoppel, where reason and good policy required that it should be admitted........ However, it is in no wise unjust or unreasonable, but, on the contrary, in the highest degree reasonable and just, that some solemn mode of declaration should be provided by law, for the purpose of enabling men to bind themselves to the good faith and truth of representations on which other persons are to act _.”_ “An estoppel is not a cause of action - it is a rule of evidence which precludes a person from denying the truth of some statement previously made by himself.” Per lindley, L.J. in Low v. Bouverie, Ch at p.101. In the same case. Ch at p.105. Bowen, L.J. added””Estoppel is only a rule of evidence, you cannot found an action upon estoppel. _”_ _Estoppel though a branch of the law of evidence is also capable of being viewed a substantive rule of law insofar as it helps to create or defeat rights,_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 12 _which would not exist or be take away but for the doctrine._ _Estoppel is a complex legal notion, involving a combination of several essential elements - statement to be acted upon, action on the faith of it, resulting in detriment to the actor. Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is more correctly viewed as a substantive rule of law... Estoppel is different from contract both in its nature and consequences. But the relationship between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the whole case of estoppel fails if the statement is not sufficiently clear and unqualified. (Per Lord Wright in Canada & domination Sugar Co.Ltd v. Canadian National (West Indies) Steamships Ltd. WWW at p.764)_ _“_ The essential factors giving rise to an estoppel are , I think- S.A.807/96 & C.R.Ps1956 & 1957/2000. . 13 (a) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation was made. (b) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation was made. © Detriment to such person as a consequence of the act or omission where silence cannot amount to a representation, but, where there is a duty to disclose, deliberate silence may become significant and amount to a representation. The existence of a duty on the part of a customer of a bank to disclose to the bank his knowledge of such a forgery as the one in question was rightly admitted.” _(Per Lord Tomin, Greenwood v. Martins Bank, all ER p.321 C-E) See also Thompson v. Palmer, Grundt v. Great Boulder and Central Newbury Car Auctions v. Unity finance._ _“ 'Estoppel', commeth of a French word 'estoupe', from whence the English word stopped, and it is called an estoppel, or conclusion, because a man's owne act or acceptance stoppeth or_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 14 _closeth up his mouth to allege or lead the truth; and Littleton's case proveth this description” where it is said estoppel is of three kids i.e. matter (I) of record, (2) in writing, i.e. semble, by deed, (3) in Paiis. To the same effect is the definition in Termes de la Ley. (See Stroud's Judicial Dictionary, 4[th] Edn., p.943)_ _“An estoppel,” says Lord Coke, “is where a man is concluded by his own act or acceptance to say the truth”. Mr. Smith, in his notes to Duchess of Kingston case characterizes this definition as a little startling but it nevertheless gives a good idea of what it is, by no means easy to include within the limits of a definition._ _Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority._ _Estoppel, then, may itself be the foundation of a right as against the person estopped, and_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 15 _indeed, if it ere not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved, estoppel may with equal justification be described both as a rule of evidence and as a rule creating or defeating rights. It would be useful to refer in this connection to the case of Depuru Veeraraghava Reddi v. Depuru Kamalamma where Vishwanatha Sastri, J. observed:_ _“_ Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or defeat rights which would not exist and be taken away but for that doctrine _.....”_ _Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 16 _defended as against the person precluded from denying it.”_ Therefore the first contention has necessarily to fail. 11. But the second and third contentions need to be noticed. The specific contention taken is that going by the averments in the plaint, the case of the plaintiff that plaint C schedule property is well bounded on all its three sides by well laid boundaries on north, west and southern sides. Even though there is a structure on the eastern side of plaint C schedule property, that is claimed to be a retaining wall by the plaintiff and according to the plaintiff the eastern boundary of plaint C schedule falls further east to the said retaining wall. 12. Learned counsel appearing for the appellant pointed out that even though the plaintiff would assert that plaint C schedule is well bounded on all three sides, the appellate court would treat them as retaining walls, a case which according to learned counsel the plaintiff did not have. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 17 13. The mere fact that the appellate court has referred to the three boundary walls on the north, west and southern sides as retaining wall may not be of much consequence and significance. 14. As already noticed, Ext.C1 is the sketch prepared by the commissioner initially and Ext.C2(a) is the plan produced by the commissioner. Ext.C2(a) is said to be the survey plan. But the commissioner in his deposition as D.W.1 has stated that in order to identify plaint C schedule property, one has to refer to both Exts.C1(a) and C2(a). 15. Learned counsel appearing for the appellants drew the attention of this court to the fact that there is no difference between Ext.C1(a) sketch and C2(a) plan. The only difference is that in Ext.C2(a) plan the internal measurements are also seen given. Learned counsel pointed out that if as contended by the plaintiff going by Ext.C2(a) if CBDE is plaint C schedule, it is the same as AHCB in Ext. C1(a) plan, then of course the claim in the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 18 plaint cannot be true. Even going by the plaint averments, plaint C schedule property has well laid boundaries on northern, western and southern sides, and a retaining wall on the eastern side. If the property now shown as C schedule in the commission report is taken, that belies the above averment. It is also pointed out by the learned counsel that if one compares the commission sketch and plan with the resurvey plan produced by the appellant at the second appellate stage, it can be seen that the property shown as belonging to the plaintiff and the defendants take in puramboke land also. This is a case which even the plaintiffs do not have. It is therefore contended that there was no proper identification of the property by the Commissioner. 16. It has to be said that there is considerable force in the argument. But the question is how far this court will be justified in going into the issue at the second appellate stage. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 19 17. The commissioner has identified plaint A schedule in Ext.C2(a) plan as ACDEF. B schedule has been identified as ABEF and C schedule as BCDE. In Ext.C1(a) plan the commissioner has shown PHQLMNO, which according to the defendants is the temple property. The commission report clearly shows that the properties have been identified with respect to the measurements shown in the respective documents. It will be useful to refer to Ext.C2 commissioner's report. It refers to Ext.C2(a) plan prepared with the aid of the Taluk Surveyor. Ext.C2 report says that as per the directions given by the court below in pursuance to the application filed by the respective parties, internal measurements of the respective properties, i.e., plaint B and C schedules are shown. It is true that Ext.C2(a) is similar to the identification made by the commissioner as shown in Ext.C1(a) sketch. However, in the objection filed by the commission report, there is no case for the defendants that the properties have been wrongly S.A.807/96 & C.R.Ps1956 & 1957/2000. . 20 identified. The main objection taken was that the commissioner was subsequently instructed to show the internal measurement, but he has prepared a fresh survey plan with the internal measurement. It is not stated anywhere in the objection that the identification made by the commissioner is erroneous and the entire plaint B and C schedule as identified by the Commissioner are not properties taken in by the respective title deeds of the parties, namely Exts.A1 and B1. 18. It is true that the commissioner has stated that he was shown the resurvey plan but he did not produce the same as it was not a certified copy given by the defendant. If the defendant had a case that the plan drawn by the commissioner and accepted by the court below, that is, Ext.C2(a) was not in conformity with the resurvey sketch, they ought to have produced the resurvey, assuming that it became final only in 1994. One must remember here that while the commissioner was preparing the sketch and plan S.A.807/96 & C.R.Ps1956 & 1957/2000. . 21 at the trial stage, the defendants had produced the resurvey sketch before the commissioner. No reasons whatsoever are given as to why the same was not produced before the trial court or before the appellate court. As rightly pointed out by the learned counsel for the respondents production of the resurvey plan at the appellate stage cannot be appreciated. No justifiable reasons are given as to why the resurvey sketch could not be produced before the appellate stage. No grounds available under Order 41 Rule 27 of the Code are made out to receive the same in evidence. 19. It is in the above circumstances, one has to appreciate the contention taken by the learned counsel for the respondent that non-examination of any of the defendants becomes fatal. The definite stand of the appellant before this court is that the properties identified by the commissioner as B and C schedule properties are not in accordance with the resurvey plan and so also the title deeds of the respective parties. If that be the case, they S.A.807/96 & C.R.Ps1956 & 1957/2000. . 22 ought to have entered the box to establish that the properties identified by the commissioner as B and C schedule properties are not the properties covered by Exts.A1 and A2 documents. For reasons best known to them, they chose to keep away from the box and remains contended by filing a shallow objection to the commission report. 20. It is interesting to note that in the trial court the defendants wanted to amend the written statement by incorporating grounds of adverse possession and limitation. The lower appellate court has noticed that even in the I.As filed for the said purpose the essential ingredients to attract adverse possession and limitation were not pleaded. It was under those circumstances the lower appellate court had occasioned to dismiss the petition. However, the learned counsel for the appellant did not pursue that matter before this court. S.A.807/96 & C.R.Ps1956 & 1957/2000. . 23 21. It is significant to notice that the defendants had no case before the court below that the property identified by the commissioner as B and C schedule properties takes in puramboke land, a contention which is raised with much vehemence before this court. As already noticed, there is some incongruity between the resurvey sketch now produced before this court and the identification by the commissioner as per Ext.C1(a) sketch and Ext.C2(a) plan. But if the defendants had such a case, it is for them to establish the said fact by adducing cogent evidence in that regard. 22. Faced with the above situation, learned counsel appearing for the appellant prayed for a remand of the case to the trial court to enable the parties to adduce further evidence and to establish that Ext.C2(a) plan is incorrect. 23. One has to remember that the suit is of the year 1989. 21 years have elapsed. If as a matter of fact the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 24 defendants had raised similar contentions atleast in the lower appellate court and prayed for a remand, there would have been some justification in the present plea. Even in the lower appellate court, they have no such contentions as are taken before this court and it is too late in the day now to seek a remand for adducing further evidence to show that Ext.C2(a) is incorrect. Further, it is now seen that the decree obtained by the plaintiff has been put in execution and a boundary wall has infact been laid along BE line as permitted by the trial court as early as in 1999. Of course, the plaintiff had then undertaken that if it is ultimately found that they are not entitled to put up boundary wall along BE line, they would demolish the same without making any claim in that regard. For the reasons already mentioned, it is felt that an interference with the findings of the courts below is not warranted. 24. As rightly pointed out by the learned counsel for the respondents, both the courts below have considered S.A.807/96 & C.R.Ps1956 & 1957/2000. . 25 the commission report and the various contentions raised by the parties in considerable detail and have come to the conclusion that the commissioner has properly identified plaint B and C schedule properties. In the decision reported in **Narayanan Rajendran v. Lekshmy Sarojini** ((2009) 5 SCC 264) it was held as follows: _“The scope of interference by the High Court in second appeal under Section 100 CPC after the 1976 Amendment is strictly confined to cases involving substantial questions of law. The High Court would not be justified in dealing with any second appeal without first formulating substantial question of law. The legislative intention has been clearly spelt out in a series of cases of this Court._ _In Gurudev Kaur this court exhaustively dealt with the cases before and after the 1976 Amendment of CPC. This Court clearly observed that the scope and ambit of Section 100 CPC has been drastically changed after the amendment._ _It is a matter of common experience in this Court that despite clear enunciation of law in a catena of cases of this court, a large number of_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 26 _cases are brought to our notice where the High Courts under Section 100 CPC are disturbing the concurrent findings of act without formulating the substantial question of law.”_ ## 25. In the decision reported in **Dinesh Kumar v. Yusuf Ali** (AIR 2010 SC 2679), it was held as follows: _“Thus, the law on the subject emerges to the effect that Second Appeal under Section 100 CPC is maintainable basically on a substantial question of law and not on facts. However, if the High Court comes to the conclusion that the evidence on record recorded by the courts below are perverse being based on no evidence or based on irrelevant material, the appeal can be entertained and it is permissible for the Court to re-appreciate the evidence. The landlord is the best Judge of his need, however, it should be real, genuine and the need may not be a pretext to evict the tenant only for increasing the rent.”_ ## 26. In the decision reported in **Bharatha Matha** **v. R. Vijaya Renganathan** (AIR 2010 SC 2685), it was held as follows: S.A.807/96 & C.R.Ps1956 & 1957/2000. . 27 _“Thus, it is evident that High Court can interfere with the finding of fact while deciding the Second Appeal provided the findings recorded by the Courts below are perverse._ _In H.B. Gandhi, Excise & Taxation Officercum-Assessing Authority, Karnal & Ors. v. M/s. Gopinath & Sons & Ors. 1992 Supp.(2) SCC 312, this Court held that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered inform in law. In M/s. Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341, this court held that the order suffers from perversity in case some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration or where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. In Kuldeep Singh v. Commissioner of_ S.A.807/96 & C.R.Ps1956 & 1957/2000. . 28 _Police, this court held that if a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. In Gaya Din v. Hanuman Prasad AIR 2001 SC 386, it has been held that order of an authority is perverse in the sense that the order is not supported by the evidence brought on record or if is against the law or it suffers from the vice of procedural irregularity. In Rajinder Kumar Kindra v. Delhi Administration, thr.Secretary, AIR 1984 SC 1805, this court while dealing with a case of disciplinary proceedings against an employee considered the issue and held as under:_ _“_ 17. It is equally well settled that where a quasi-judicial tribunal or arbitrator records findings based on no legal evidence and the findings are either his ipse dixit or based on conjectures and surmises, the enquiry suffers from S.A.807/96 & C.R.Ps1956 & 1957/2000. . 29 the additional infirmity of non-application of mind and stand vitiated...... The High Court, in our opinion, was clearly in error in declining to examine the contention that the findings were perverse on the short, specious and wholly untenable ground that the matter depends on appraisal of evidence _.”_ 27. Applying the principles laid down in the above decisions, it could not be said that there is anything to show that the appreciation of the evidence by the courts below are either perverse or the conclusions drawn by them are unwarranted going by the evidence on record. 28. As far as the two petitions filed before this court are concerned, one to receive the documents and the other to amend the appeal memorandum incorporating a prayer regarding the non-acceptability of the commission report, as rightly pointed out by the learned counsel for the respondents, the petitions are highly belated and no justifiable reasons are given to entertain the said petitions. As already noticed,the suit is of the year 1989 and the S.A.807/96 & C.R.Ps1956 & 1957/2000. . 30 decree obtained by the plaintiff has already been executed also. The petitions are therefore rejected. The result is that, this Second Appeal is without any merits and it is liable to be dismissed. I do so. There will be no order as to costs. ## C.R.P. Nos.1956 & 1957 of 2000. In the light of the judgment in Second Appeal, the C.R.Ps are without any merit whatsoever. Accordingly, they are also dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.