S.SUKHILAL v. ARALI BINU and SANTHAKUMARI

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. ARUN
Judgment Date: 2021-09-01
Court Decision / Holding: The original petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

S.SUKHILAL

Respondents

ARALI BINU
SANTHAKUMARI

Legal Representation & Advocates

Counsels for Petitioners

• M.RAJESH

Counsels for Respondents

• SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
• SRI.A.R.DILEEP
• SRI.P.J.JOE PAUL
• SRI.MANU SRINATH
• SRI.RAJAN G. GEORGE

Case Synopsis & Summary

The petitioner, S. Sukhilal, is the plaintiff in O.S. No. 478 of 2012 in the Additional Munsiff Court, Kollam, seeking a declaration of easement by prescription over a portion of land (F Schedule) for the beneficial use of his A Schedule property and a permanent injunction. The dispute traces to 1985 when the family used a road along Indira’s land, widened to about 3.35 metres by a prior settlement (B Schedule). Indira later constructed a boundary wall between her land and the pathway, and the defendants acquired land along with the remaining portion of the B Schedule way. Since then, the petitioner and his family have used the path openly and habitually as access to the public road. The defendants deny any easement and claim the petitioner widened the route unlawfully. The trial court appointed an Advocate Commissioner; Ext. P4 report, mahazar and plan were submitted. The petitioner sought to set aside or remit the report (Ext. P5), which the court declined (Ext. P7). On appeal, the petitioner argued that the Commissioner failed to report matters enumerated in the commission application and that remitting would prevent prejudice. The respondents argued against interference under Article 227 and urged reliance on Ext. P4. The High Court cited Indira v. Rajendran and Sarojini Amma to affirm that Article 227 cannot be used to disturb a commission report and that dismissal of a set‑aside application does not decide the suit. The petition is dismissed, leaving Ext. P4 intact. This ensures timely adjudication of the easement dispute while preserving the trial court’s record.

Provisions of Law Cited

Article 227

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Advocate Commissioner failed to ascertain and report the matters enumerated in the commission application and that prejudice would ensue if the properties are not measured and demarcated. The respondents sought appointment of an Advocate Commissioner and argued that remitting or setting aside the report would not prejudice the petitioner since the report is only evidence and its reliability can be tested by examining the Commissioner. The petitioner argues for setting aside or remitting Ext. P4 to ensure accuracy and prevent miscarriage of justice; cross-examination of the Commissioner is necessary.

Contentions of Respondents

The respondents contend that there should be no interference with Ext. P4; the commission report is merely evidence and the relief to set aside does not automatically decide the suit. They rely on Indira v. Rajendran and Sarojini Amma to support the proposition that Article 227 cannot be invoked to disturb a commission report unless grave injustice would result.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Indira v. Rajendran	2008 (3) KHC 1019	Positive	Cited to support that dismissal of an application to set aside a commission report does not end the suit and allows cross-examination to test reliability.
Sarojini v. Karthiyani Amma and others	2010 (1) KHC 193	Positive	Used to illustrate that Article 227 cannot be invoked to set aside a commission report unless grave injustice would result; supports denying interference with the commission report.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA,** ## **1943** **OP(C) NO. 24 OF 2019** **OS 478/2012 OF ADDITIONAL MUNSIFF COURT, KOLLAM, KOLLAM PETITIONER/S:** S.SUKHILAL, AGED 46 YEARS S/O.K.SUKUMARAN, SUKUMA MANDIRAM, MANGADU CHEERY, MANGADU VILLAGE, MANGADU P.O, KOLLAM. BY ADV M.RAJESH ## **RESPONDENT/S:** 1 ARALI BINU, AGED 33 YEARS W/O.BINU, USHAS, MULLUVILAYIL, HOUSE NO.E.P VII/76, EDAKKADAM MURI, EZHUKONE VILLAGE, EZHUKONE P.O., KOLLAM, PIN- 691001. 2 SANTHAKUMARI, AGED 64 YEARS W/O.LATE GOPALAKRISHNAN, USHAS, MULLUVILAYIL, HOUSE NO.E.P VII/76, EDAKKADAM MURI, EZHUKONE VILLAGE, EZHUKONE P.O., KOLLAM, PIN- 691001. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON** **16.07.2021, THE COURT ON 01.09.2021 DELIVERED THE FOLLOWING:** **O.P.(C) No.24 of 2019** 2 ## **JUDGMENT** **Dated this the 01[st] day of September, 2021 The petitioner is the plaintiff in O.S.No.478 of 2012 of the Additional Munsiff’s Court, Kollam. The respondents are the defendants in the suit. The prayer in the suit is for declaration of the petitioner’s right of easement by prescription over Plant F way/property for the beneficial use and enjoyment of A schedule property. The other prayer is for a decree of permanent prohibitory injunction order. The brief facts, as narrated in the plaint, are as under;** **The plaintiff is the absolute owner in possession and enjoyment of 10 cents of land (plaint A schedule). A nearby extent of another 10 cents of land was sold by the plaintiff’s father to one Indira. At the time of sale, there existed an interior road having width of 8 ft. existed on** **O.P.(C) No.24 of 2019** 3 **the western side of Indira's property, which was the access to plaint A schedule from the public road on the south. In an earlier suit between the petitioner’ predecessor-in-interest and Indira, a settlement was arrived at whereby the width of the way was increased 3.35 metres (B Schedule). Thereafter, Indira constructed a boundary wall separating her land (B Schedule) from the pathway. Right from 1985 onwards, the petitioner and his family members have been using the portion of land forming part of the land originally owned by Indira and later, acquired by the defendants along with the remaining portion of B Schedule way, openly and continuously (F schedule). The defendants tried to obstruct the way and hence, the petitioner is seeking a declaration of easement by prescription over F schedule.** **2. The defendants entered appearance and** **O.P.(C) No.24 of 2019** 4 **filed written statement and counterclaim, contending that the petitioner has no right or authority over the alleged pathway and had illegally widened the pathway by demolishing the compound wall constructed by the first defendant.** **3. The petitioner filed a written statement** **to the counterclaim and an application for appointing an Advocate Commissioner to survey and demarcate the plaint B schedule properties and to prepare a plan with the assistance of a Surveyor. Accordingly, an Advocate Commissioner was appointed, who, after inspection, filed Ext.P4 report, mahazar and plan. Being dissatisfied with Ext.P4, the petitioner preferred Ext.P5 application seeking to either set aside the commission report or remit the report to the same Commissioner. By Ext.P7 order, the trial court dismissed Ext.P5 application. Hence, the original** **O.P.(C) No.24 of 2019** 5 **petition.** **4. Heard Sri.M.Rajesh, learned Counsel for the petitioner and Sri.A.R.Dileep, learned Counsel for the respondents.** **5. Learned Counsel for the petitioner contended that the Advocate Commissioner had failed to ascertain and report about the matters enumerated in the commission application and that, the petitioner will be put to prejudice, if the properties are not measured and demarcated. It is submitted that the respondents had also sought the appointment of an Advocate Commissioner and hence, no prejudice will be caused to either side by the report being set aside or remitted.** **6. Per contra, learned Counsel for the respondents contended that absolutely no interference is warranted to Ext.P4 order, in exercise of the supervisory power under Article** **O.P.(C) No.24 of 2019** 6 **227. It is contended that the commission report is only a piece of evidence and dismissal of a petition for setting aside the commission report and plan will not be a ground for allowing the suit, since the reliability or otherwise of the report can be proved by examining the Advocate Commissioner. In support of the contention, reliance is placed on the following decisions;** _**Indira v. Rajendran [2008 (3) KHC 1019] and Sarojini v.Karthiyani Amma and others [2010 (1) KHC 193].**_ **7. A perusal of the impugned order reveals that the commission report and plan was filed on 22.09.2016, whereas the application for remitting the commission report was filed only on 18.07.2018, after the suit was listed for trial. Moreover, the petitioner had earlier moved an application for amending the plaint based on the** **O.P.(C) No.24 of 2019** 7 **commission report and the same was allowed by the court.** **8. In** _**Indira**_ **(supra), it is held that dismissal of an application for setting aside a commission report does not mean that the suit would be decided or a decree granted in accordance with the said report and plan. The petitioner is at liberty to cross examine the commissioner and to prove that the report is either not correct or cannot be relied on. The decision in** _**Sarojini**_ **, is to the effect that the jurisdiction under Article 227 cannot be invoked to set aside a commission report, unless the impugned order is shown to be suffering from such infirmity, which, if not corrected, will result in grave injustice. I am in complete agreement with the propositions laid down in the above decisions. Decision in a suit of the year 2012 cannot be delayed further at the** 8 **O.P.(C) No.24 of 2019** **instance of a person who waited for almost two years before raising his objection against the commission report.** **For the aforementioned reasons, the original** **petition is dismissed.** **Sd/-** **V.G.ARUN JUDGE** **Scl/** **O.P.(C) No.24 of 2019** 9 ## **APPENDIX OF OP(C) 24/2019** ## PETITIONER EXHIBITS - EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.478/2012 OF THE ADDL.MUNSIFF COURT, KOLLAM. - EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM OF THE RESPONDENTS IN O.S.NO.478/2012 OF THE MUNSIFF COURT, KOLLAM. - EXHIBIT P3 THE TRUE COPY OF THE WRITTEN STATEMENT TO THE COUNTER CLAIM FILED BY THE RESPONDENTS IN O.S.NO.478/2012 PENDING BEFORE THE MUNSIFF COURT, KOLLAM. - EXHIBIT P4 THE TRUE COPY OF THE REPORT MAHAZAR AND PLAN PREPARED BY THE ADVOCATE COMMISSIONER IN O.S.NO.478/2012. - EXHIBIT P5 THE TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER AGAINST THE REPORT AND SURVEY PLAN OF THE ADVOCATE COMMISSIONER IN O.S.NO.478/2012. - EXHIBIT P6 THE TRUE COPY OF THE I.A.NO.3327/2018 IN O.S.NO.478/2012. - EXHIBIT P7 THE CERTIFIED COPY OF THE ORDERS OF THE ADDL.MUNSIFF, KOLLAM IN I.A.NO.3327/2018 IN O.S NO.478/2012. - EXHIBIT P8 THE TRUE COPY OF I.A No.3343/2015 FILED BY THE RESPONDENTS HEREIN IN OS 478/2012 ON THE FILES OF THE HON'BLE MUNSIFF COURT, KOLLAM FOR APPOINTING OF AN ADVOCATE COMMISSIONER AND SURVEYOR - EXHIBIT P9 TRUE COPY OF I.A.NO.1563/2016 FILED BY THE PETITIONER IN OS NO.478/2012 ON THE FILES OF THE MUNSIFF COURT, KOLLAM FOR APPOINTING OF AN ADVOCATE COMMISSIONER AND SURVEYOR.