Sebastian V.T v Lalita Thomas and others

1 OP(C) No.1104 of 2022 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 14[TH] DAY OF FEBRUARY 2023 / 25TH MAGHA, 1944 ``` ## **`OP(C) NO. 1104 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN IA NOS 3382 AND 4346 OF 2019 IN OS 723/2013 OF THE PRINCIPAL MUNSIFF, ALAPPUZHA ``` ## **`PETITIONER/S:`** ``` SEBASTIAN V.T ,AGED 58 YEARS S/O SCARIA THOMAS, VADAKARAPUTHENPARAMBIL, KIDANGARAMURI, VELIYANADU VILLAGE, KUTTANADUTALUK, ALAPPUZHA DISTRICT., PIN - 689595 BY ADV K.S.HARIHARAPUTHRAN ``` ## **`RESPONDENT/S:`** - `1 LALITA THOMAS,AGED 71 YEARS W/O LATE THOMAS KORAH, AVE MARIYA, PLAKKATT COLONY, GANDHINAGAR, KOCHI, PIN - 682020` - `2 JERRY THOMAS,AGED 48 YEARS D/O LATE THOMAS KORAH AVEMARIYA, PLAKKATT COLONY, GANDHINAGAR, KOCHI, PIN - 682020` - `3 PRIYA,AGED 45 YEARS W/O SAJICHACKO, ETTUKETTIL, AVE MARIA, PLAKKATT COLONY, GANDHINAGAR, KOCHI, PIN - 682020` - `4 KURUVILLA KORA,AGED 65 YEARS S/O LATE KORAH, KARUVELITHARA HOUSE, MAMPUZHAKARIMURI, RAMANKARY VILLAGE, KUTTANADTALUK, ALAPPUZHA DIST., PIN - 689595` - `5 JOSEPH KORAH,AGED 80 YEARS S/O LATE KORAHKARUVILITHARA HOUSE, MAMPUZHAKARIMURI, RAMANKARY VILLAGE, KUTTANADTALUK, ALAPPUZHA DIST, PIN - 689595` - `BY ADVS. Azad Babu R Mathew John ABY J AUGUSTINE(K/000302/2018)` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1104 of 2022 ## **C.S.DIAS, J.** =-=-=-=-=-=-=-=-=-=- ## **OP(C) No.1104 of 2022** =-=-=-=-=-=-=-=-=-=-=-=-=-= ## **Dated this the 14[th] day of February, 2023.** ## **JUDGMENT** Aggrieved and confronted with Ext P9 common order passed in IA Nos.3382 and 4346 of 2019 in OS No.723/2013 by the Court of the Principal Munsiff, Alappuzha, the plaintiff in the suit has filed the original petition. The respondents are the defendants in the suit. 2. The relevant antecedent facts leading to Ext P9 common order are: (i) The petitioner has instituted Ext P1 plaint, against the respondents, inter alia, for a decree for fixation of southern and northern boundaries of plaint item No.1 property and other ancillary reliefs. 3 OP(C) No.1104 of 2022 (ii) The suit is resisted by the respondents through Exts P2 to P4 written statements. (iii) At the instance of the petitioner, an Advocate Commissioner and a Surveyor had filed their report and sketch. (iv) The parties went to trial, and the Advocate Commissioner, the Surveyor and the parties and their witnesses let in evidence. (v) At the stage of final hearing, by Ext P5 order, the court below remitted the commission report and sketch. Consequently, the Advocate Commissioner and the Surveyor had filed Exts P6 to P6(b) report, mahazar and plan. (vi) Alleging that the Advocate Commissioner and the Surveyor failed to comply with the directions in Ext P5 order, the respondents 1 to 3 filed IA No.3382/2019 (Ext 4 OP(C) No.1104 of 2022 P7) and the fourth respondent filed IA No.4346/2019, to set aside Exts P6 to P6(b). The petitioner filed Ext P8 objection to both the applications. (vii) The court below, by the impugned Ext P9 order, allowed the application and set aside Exts P6 to P6(b), and appointed a new Advocate Commissioner and a Surveyor. (viii) Ext P9 is ex-facie illegal and unsustainable in law. Hence the original petition. 3. Heard; Sri.K.S Hariharaputhran, the learned counsel appearing for the petitioner, Sri.R.Azad Babu, the learned counsel appearing for the respondents 1 to 3 and 5 and Sri.Mathew John, the learned counsel appearing for the fourth respondent. 4. The short point is, whether there is any illegality in Ext P9 order. 5 OP(C) No.1104 of 2022 5. On an analysis of the pleadings and materials on record, it can be gathered that at the instance of the petitioner, an Advocate Commissioner and a Surveyor were appointed and they filed their report and plan. 6. The court below, by Ext P5 order, had remitted the report and plan with the following directions; 1. Commissioner shall ascertain and locate the properties covered by Ext.A4 document at the first instance and shall demarcate the same as per Ext.A4 and old survey records. Thereafter, he shall ascertain and locate the property covered by Ext A5 based on Ext A5 and old survey records. 2. These two items of properties and the schedules therein shall be demarcated separately to have a clear understanding about the exact location of the properties. 3. Commissioner shall after locating these properties, ascertain and locate properties as per Exts .B1 and B2 documents based on old survey records and shall show the same in the plan. 4. A separate plan shall be attached showing plaint schedule item No.1 and 2 properties and counter claim item No.1 and 2 properties. 5. The portion of properties as per Ext.A4 and A5 shall be shown in different colour shades in the said plan. 6. Since the suit and counter claim are for recovering possession of immovable properties, commissioner need not 6 OP(C) No.1104 of 2022 consider the physical boundaries appearing on the spot for survey and demarcation of the properties as referred above. But he may indicate the physical boundaries, if any found, and shall show the same in the plane. 7. Plaintiff shall pay Rs.2,000/- an additional batta to the commissioner and Rs.1,000/- an additional batta to the surveyor within 7 days. 8. Commissioner and surveyor shall complete the work within 15 days after receipt of batta and shall file report on or before 27.05.2017. For CR 27.05.2017.” ## 7. Indisputably, Ext P5 has attained finality. 8. Subsequent to Ext P5 order, the Advocate Commissioner and the Surveyor filed Exts P6 to P6(b) report, mahazar and plan purportedly in compliance with Ext P5 order. 9. The respondents 1 to 3 filed IA No.3382/2019 and the fourth respondent filed IA No.4346/2019 alleging that the Advocate Commissioner and the Surveyor have failed to comply with the directions contained in Ext P5 order. 7 OP(C) No.1104 of 2022 10. The court below, re-appreciated Exts P6 to P6(b) in the light of IA Nos.3382 and 4346 of 2019 and Ext P5 order, allowed the application by Ext P9 order for the following reasons: “8. The surveyor was not able to depose how the measurement was effected. He was deposing that he did the measurements as directed by the commissioner. Commissioner was examined in this case. He was trying to explain how he measured the property. On perusal of the commission report and the plan the commissioner has not at all complied with the directions of this court dtd 11.04.2017 while measuring the property and preparing the Ext Cl series. By this commission report the possession of the schedule properties is mistakenly mentioned. The commissioner has not measured the property by measuring the property covered by Ext.A4, thereafter property covered by Ext.A5 and thereafter property covered by Exts.B1 and B2. The commissioner has not given colour to the properties included in Exts A4 and A5. The commissioner has at his whims and fancies measured the property and made the location of property more complicated. Commissioner without properly locating the property covered by Ext A4 measured an extent of 6 Acres 75 cents and located the property included in Ext A5. This is not in compliance with the order of this court. The possession of the property covered by Exts A4 and A5 is not in terms with the actual lie and possession. The property on the western side of A B C D schedule properties in Ext A4 is the proeprty in Ext A5. The commissioner without any basis measured and located excess land to various persons. The measurement of property covered by Exts A4 and A5 is incorrect and not tallying with the description of the property. The learned counsel for plaintiff supported the commission report and contended that the commissioner has measured the property in accordance with the directions of this court and 8 OP(C) No.1104 of 2022 prayed accepting the commission report. Hence the report, plan and mahazar prepared by the commissioner is not in compliance with the order of this court and is only to be set aside.” 11. A reading of the findings in the extracted portion of Ext P9 order leaves no room for any doubt that the Advocate Commissioner and Surveyor (PWs 1 and 2) have failed to comply with the specific directions of the court below in Ext P5 order. Thus, the court below felt it fit to set aside Exts P6 to P6(b) and appoint a fresh Advocate Commissioner and Surveyor for the purpose of proper determination of the suit. 12. The learned counsel appearing for the petitioner contended that in view of the law laid down by a Division Bench of this Court in **Francis Assissi vs. Sr.Breesiya** [2017 (1) KLT 1041], the court below ought not to have set aside the commission report, but should have remitted the matter back to the same Advocate Commissioner and the 9 OP(C) No.1104 of 2022 Surveyor and obtained clarifications with regard to the matter that were not noted by the Advocate Commissioner and the Surveyor as directed in Ext P5 order. 13. In fact, the law laid down in **Francis Assissi** (supra) has been doubted and referred to a larger Bench of this Court in view of the subsequent judgment rendered by a learned single Judge in **Yudathadevus vs. Joseph** [2021 4 KLJ 415] holding that an earlier Division Bench decision on the point in **Swami Premananda Bharathi vs. Swami Yogananda Bharathi** [1985 KLT 144), was not followed in **Francis Assissi** (supra). 14. Thus, as on today, in view of the cleavage of opinion on the point of remission/setting aside of commission report, I am of the firm view that the discretion to decide whether a commission report is to be remitted or set aside is to be left to the Trial Court because 10 OP(C) No.1104 of 2022 ultimately, the report is called for to assist the Court in determining the suit. 15. It is trite; the exercise of the power of superintendence of this Court under Article 227 of the Constitution of India is to keep the courts of the District Judicature within their bounds of authority and to see that they do the duty as expected of them. The High Court is not vested with any unlimited prerogative to correct all decisions made within the limits of the jurisdiction of the subordinate courts. The exercise of this power and interfering with the orders of the courts is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also nigh settled that while acting under this Article, the High Court is not acting as an appellate 11 OP(C) No.1104 of 2022 court to substitute its judgment in place of the subordinate courts. On a reading of Ext P9 order and cogent reasons given by the court below that the Exts P6 to P6(b) report, mahazar and plan will not assist the Court in any manner to determine, I am of the definite view that there is absolutely no error or illegality in the impugned order warranting interference by this Court in exercise of the supervisory powers under Article 227 of the Constitution of India. The original petition fails and is hence dismissed. As the suit is of the year 2013, the court below shall make every endeavour to dispose of the suit, in accordance with law, as expeditiously as possible. ## SD/- sks/14.2.2023 **C.S.DIAS, JUDGE** 12 OP(C) No.1104 of 2022 ## **`APPENDIX OF OP(C) 1104/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibitp1`|`TRUE COPY OF THE PLAINT DATED 29 - 10 -`| ||`2013, IN O.S. NO. 723 OF 2013, ON THE FILES`| ||`OF THE MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP2`|`TRUE COPY OF THE WRITTEN STATEMENT DATED 29`| ||`- 08 - 2014, FILED BY THE RESPONDENTS 1 TO 3`| ||`IN O.S. NO. 723 OF 2013, ON THE FILES OF THE`| ||`MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP3`|`TRUE COPY OF THE WRITTEN STATEMENT DATED 30-`| ||`03-2014, FILED BY THE 4TH RESPONDENT IN IN`| ||`O.S. NO. 723 OF 2013, ON THE FILES OF THE`| ||`MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP4`|`TRUE COPY OF THE WRITTEN STATEMENT DATED 22`| ||`- 05 - 2015, FILED BY THE 5TH RESPONDENT, IN`| ||`IN O.S. NO. 723 OF 2013, ON THE FILES OF THE`| ||`MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP5`|`TRUE COPY OF THE ORDER DATED 11 - 04 - 2017,`| ||`IN O.S. NO. 723 OF 2013, ON THE FILES OF THE`| ||`PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP6`|`TRUE COPY OF THE COMMISSION REPORT, DATED 16`| ||`- 07 - 2019, PREPARED AND SUBMITTED BY THE`| ||`ADVOCATE COMMISSIONER IN O.S. NO. 723 OF`| ||`2013, ON THE FILES OF THE PRINCIPAL`| ||`MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP6(a)`|`TRUE COPY OF THE MAHZAR DATED 16 - 07 -`| ||`2019, PREPARED AND SUBMITTED BY THE ADVOCATE`| ||`COMMISSIONER IN O.S. NO. 723 OF 2013, ON THE`| ||`FILES OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`ALAPPUZHA`| |`ExhibitP6(b)`|`TRUE COPY OF THE PLAN DATED 16 - 07 - 2019,`| ||`PREPARED AND SUBMITTED BY THE ADVOCATE`| ||`COMMISSIONER IN O.S. NO. 723 OF 2013, ON THE`| ||`FILES OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`ALAPPUZHA`| |`ExhibitP7`|`TRUE COPY OF IA. 3382/2019, IN O.S. NO. 723`| ||`OF 2013, ON THE FILES OF THE PRINCIPAL`| ||`MUNSIFF'S COURT, ALAPPUZHA DATED 19.8.2019`| |`ExhibitP8`|`TRUE COPY OF THE OBJECTION FIELD BY THE`| ||`PETITIONER IN I.A.NO.3382/2019 IN O.S. NO.`| ||`723 OF 2013, ON THE FILES OF THE PRINCIPAL`| ||`MUNSIFF'S COURT, ALAPPUZHA`| |`ExhibitP9`|`: TRUE COPY OF THE COMMON ORDER, DATED 05 -`| ||`04 - 2022, IN IA 3382 / 2019 AND IA.`| ||`4346/2019 IN O.S. NO. 723 OF 2013, ON THE`| ||`FILES OF THE PRINCIPAL MUNSIFF'S COURT,`| ||`ALAPPUZHA`|