Venderran Kotti and Others v. Sakeena and Others (Regular Second Appeal, RSA 700 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 15[TH] DAY OF SEPTEMBER 2023 / 24TH BHADRA, 1945** **R.S.A.NO. 700 OF 2011** **AGAINST THE JUDGMENT AND DECREE DATED 17.01.2011 IN** - **A.S.NO.25 OF 2006 OF THE SUB COURT, MANJERI, WHICH ARISES OUT OF THE JUDGMENT AND DECREE DATED 26.11.2005 IN** - **O.S.NO.268 OF 2001 OF THE MUNSIFF'S COURT, MANJERI** ## **APPELLANTS/1ST RESPONDENT & ADDL.RESPONDENTS 3 TO 8/1ST DEFENDANT & Lrs.OF DECEASED 2ND DEFENDANT:** - **1 VENDERAN KOTTI, D/O NAVUTTY, 45 YEARS, RESIDING AT KAVANOOR P.O. AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT -673 644.** - **2 CHERIYAKKI, W/O.VENGARAN CHATHAN (LATE), 55 YEARS, PILAKANDI (H), DO. DO.** - **3 KUNHIPENNU, D/O.VENGARAN CHATHAN (LATE), 40 YEARS, PILAKANDI (H), DO. DO.** - **4 VASU, S/O.VENGARAN CHATHAN (LATE), 30 YEARS, PILAKANDI (H), DO. DO.** - **5 PRAKASAN, S/O.VENGARAN CHATHAN (LATE), 28 YEARS, PILAKANDI (H), DO. DO.** - **6 HARIDASAN, S/O.VENGARAN CHATHAN (LATE), 56 YEARS, PILAKANDI (H), DO. DO.** - **7 ANOOP, S/O.VENGARAN CHATHAN (LATE), 24 YEARS, PILAKANDI (H), DO. DO. (APPELLANTS 2 TO 7 WERE IMPLEADED AS PER ORDER, DATED 12.10.2006 IN IA.NO.1236 OF 2006 IN AS 25 OF 2006).** - **BY ADVS. SRI.ALEX.M.SCARIA SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS** 2 R.S.A.NBo.700 of 2011 ## **RESPONDENTS/APPELLANTS/PLAINTIFFS:** - **1 SAKEENA, 37 YEARS, KAVANOOR AMSOM DESOM, ERNAD TALUK, KAVANOOR P.O., MALAPPURAM DISTRICT -673 644.** - **2 RAMLATH, 32 YEARS, DO. DO.** - **3 FATHIMA SUHRA, 29 YEARS, DO. DO.** - **4 MOHAMMED ASHRAF, 27 YEARS, REP. BY POWER OF ATTORNEY, HOLDER RUKHIYA, W/O.AVARANKUTTY, DO. DO.** - **5 RUKHIYA, W/O.AVARANKUTTY, 57 YEARS, DO. DO.** **BY ADVS. SRI.P.M.MOHAMMED SHAREEF SMT.C.V.RAJALAKSHMI SRI.V.T.RAGHUNATH** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 02.08.2023, THE COURT ON 15.09.2023 DELIVERED THE FOLLOWING:** 3 R.S.A.NBo.700 of 2011 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------R.S.A.No.700 of 2011 ----------------------------------------------------------Dated this the 15[th] day of September, 2023** ## **JUDGMENT** The respondents filed O.S.No.268 of 2001 before the Munsiff’s Court, Manjeri. That was a suit for injunction. The suit was dismissed. The respondents filed A.S.No.25 of 2006 before the Sub Court, Manjeri. During the pendency of the appeal, the 2nd defendant expired and his legal representatives were impleaded. The appeal was allowed and a decree of permanent prohibitory injunction was granted. The appellants therefore preferred this appeal under Section 100 and Order XLII, Rule 1 of the Code of Civil Procedure, 1908. 2. The appeal was admitted on the following substantial questions of law: - i) When the plaint averments and the prayer in the suit made it abundantly clear that the relief in the suit was to prohibit the defendants from executing the final decree granted in their favour in a prior suit, whether the court 4 R.S.A.NBo.700 of 2011 below was justified in entertaining the suit in view of the jurisdictional bar under Section 47 of the Code of Civil Procedure, 1908? - (ii) Whether the court below was justified in relying on Ext.C2 by treating it as a survey plan in view of the indisputable fact that Ext.C2 was prepared by a private surveyor, without adhering to the prescribed procedure - (iii) Even though Order XXVI Rule 10 provides for an automatic admission of a commission report in evidence, whether it was proper on the part of the court below to have accepted Exts.C1 and C2 in evidence, in view of the objections raised by the defendants and also in view of I.A.No.630 of 2004, which has been filed with a prayer to remit the commission report, remained without being disposed of? 3. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents. 4. The predecessor-in-interest of the respondents was the owner of 23½ cents of land covered by Kanam assignment deed No.1564 of 1887. 15½ cents from it was sold to Sri.Veerankutty and his wife retaining the remaining 8 cents, which is plaint B schedule property. 15½ cents property sold by the predecessor of the respondents is on the southern side 5 R.S.A.NBo.700 of 2011 of plaint B schedule. There is a pathway on the western side of these properties. On the allegation that the appellants were trying to trespass upon plaint B schedule property under the guise of the decree in O.S.No.233 of 1986, the respondents filed O.S.No.268 of 2001. 5. The defendants filed a written statement. They claimed that the property they have got partitioned as per the decree in O.S.No.233 of 1986 is comprised in re-survey No.258/2. The allegation that under the guise of that decree, these respondents tried to trespass upon plaint B schedule property is absolutely incorrect. There is no pathway along the western side of the respondents’ property as they claimed. The respondents have no property on the northern side of the property of Sri.Veerankutty. Since the properties of the appellants are in re-survey No.258/2 upon which the respondents have no claim, the suit lacks bonafides. They accordingly sought to dismiss the suit. 6. At the trial, after framing of issues, evidence was placed before the learned Munsiff. PW1 and DW1 were 6 R.S.A.NBo.700 of 2011 examined. Exts.A1 to A8 and Exts.B1 to B8 were marked. Exts.C1 and C2 are commission report and survey sketch. After appreciating the evidence, the learned Munsiff held that evidence was lacking to prove identity of plaint B schedule property. An issue regarding title to plaint B schedule property was framed and the trial court answered that issue also against the respondents. The plea urged by the respondents before the lower appellate court that plaint B schedule property was properly identified by the Commissioner appointed in the suit with the help of a Surveyor and title of the respondents to the said property has been duly proved was accepted. Accordingly, the suit was decreed. 7. The lower appellate court took the view that from the evidence on record it was established that plaint B schedule property is comprised in re-survey No.259/2 corresponding to old re-survey No.258/3. Similarly, the property of the appellants was proved to be in survey No.359/3 corresponding to old re-survey No.258/2. The said findings are vehemently assailed by the appellants for the 7 R.S.A.NBo.700 of 2011 reasons that Ext.C2 survey sketch was prepared by a private surveyor, which would not become evidence in the suit as provided in sub-rule (2) of Rule 10, Order XXVI of the Code. Yet another contention raised by the appellants relating to that aspect is that the petition filed by them as I.A. No.630 of 2004 to remit the commission report was not considered even by the learned Munsiff. 8. The learned counsel appearing for the respondents would submit that those questions are more about the identity of plaint B schedule property, which is purely a question of fact and that was not liable to be considered in the Second Appeal. The learned counsel for the respondents placed reliance on the following decisions of the Apex Court in that regard: **Kondiba Dagadu Kadam v. Savithribai Sopan Gujar and others [(1999) 3 SCC 722], Pakeerappa Rai v. Seethamma Hengsu (Dead) by LRs. and others (2001) 9 SCC 521, Gurudev Kaur and others v. Kaki and others [(2007) 1 SCC 546], Sansar Chand v. Swami Vivekanand Adarsh Vidha Mandir [(2010) 15 SCC 155]** 8 R.S.A.NBo.700 of 2011 and **S.Subramanian v. S.Ramasamy and others [(2019) 6 SCC 46].** Decision of this Court in **Sankaranarayanan v. Rama Gupthan [1979 KLT 744]** and **Hameed v. Sumithra and others [1987 (1) KLT 308]** were also highlighted to fortify his contention. The extent of powers of the High Court under Section 100 of the Code has been a subject of deliberation in a slew of decisions of the Apex Court subsequent to the aforesaid decisions. 9. The Apex Court in **Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan [(2020) 18 SCC 317]** held that it is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the Code. In **Narayan Sitaramji Badwaik (Dead) through LRs. v. Bisaram and others [AIR 2021 SC 2438]** the Apex Court considered the extent of the jurisdiction of High Courts to appreciate factual issues under Section 103 of the Code. It was held that the High Court may decide an issue of fact, provided there is sufficient evidence on record before it, in two 9 R.S.A.NBo.700 of 2011 circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And the second, when an issue of fact has been wrongly determined by the Court below by virtue of the decision on the question of law under Section 100 of the Code. The said principle was reiterated by the Apex Court in **Azgar Barid (D) by LRs. and others v. Mazambi @ Pyaremabi and others [(2022) 5 SCC 334].** 10. Viewed so, the findings of the lower appellate court regarding identity of plaint B schedule property based on Ext.C1 report and Ext.C2 survey sketch and the other evidence brought on record certainly is a question of fact. No patent illegality or perversity touching the very root of the said finding is pointed out by the learned counsel for the appellants. Of course, the question whether Ext.C2 having been prepared by a private surveyor could be relied on without examination of its author and also declining of the prayer of the appellants to remit Ext.C1 report and Ext.C2 plan vitiated the proceedings certainly are questions of law. 10 R.S.A.NBo.700 of 2011 11. On a perusal of Ext.C1, it is seen that the Advocate Commissioner was duly appointed by the learned Munsiff. A surveyor was also appointed by the court on the request of the Commissioner. The Commissioner stated in Ext.C1 that on her supervision the survey was held and the survey sketch was made part of her report. In that view of the matter, both Exts.C1 and C2 became the report of the Commissioner coming within the purview of Rule 10 of Order XXVI of the Code. It is recited in Ext.C1 that the survey was conducted in the presence of both parties and witnesses. When the report and the survey sketch were prepared with sufficient notice to both sides, the same would become evidence in the suit and form part of the record in the suit. It was for the party who wants to assail such a report to establish before the court the reasons for rejecting the same. The appellants did not take any steps for the examination of the Commissioner or Surveyor before the court. Mere filing of a petition seeking to remit the commissioner's report is not enough to discard the same. Having failed to impeach the reliability, the appellants 11 R.S.A.NBo.700 of 2011 are not entitled to contend in this Second Appeal that there occurred denial of opportunity to them and therefore Exts.C1 and C2 could not be received in evidence. The said questions formulated by this Court are accordingly answered against the appellants. 12. There is yet another reason for rejecting the plea of the appellants. Ext.B1 is a copy of the assignment deed to which the appellants trace their title. It is a kanam assignment deed of the year 1940. Ext.A5 is also a certified copy of that document. The respondents allege that the side measurements of the property given in Ext.B1 are incorrect and that mistake/correction is evident from Ext.A5. The side measurements of the property given in the schedule to Ext.A5 are 33 x 26 SFK (six feet kol); whereas, the side measurements of the property given in the schedule to Ext.B1 are 83 x 26 SFK. The said disparity discredits the plea of the appellants. When that also is a reason relied on by the first appellate court to reject the claim of the appellants, the same is not liable to be interfered by this Court on a reappreciation of evidence. 12 R.S.A.NBo.700 of 2011 13. The appellants would contend that the suit is barred under the provisions of Section 47 of the Code. The learned counsel appearing for the appellants, during the course of arguments, further submitted that the intention of the respondents behind filing the suit is to resist execution of the decree in O.S.No.233 of 1986, and therefore, the suit is barred by the provisions of Rule 101, Order XXI of the Code. 14. Section 47 of the Code enables the parties to the suit in which a decree was passed or their representatives to approach the Execution Court for an adjudication upon the questions relating to the execution, discharged or satisfaction of the decree. The insistence of Section 47 to approach the Execution Court and bar to a separate suit attracts only when the party to the suit espouses the grievance. Therefore, the provisions of Section 47 shall not be a bar to O.S.No.268 of 2001 filed by the respondents, who are not parties to the said suit. 13 R.S.A.NBo.700 of 2011 15. The question involved in the present suit is as to the identity of plaint B schedule property. The definite contention of the respondents is that plaint B schedule property is totally unconnected to the properties involved in O.S.No.233 of 1986. The bar under Rule 101, Order XXI of the Code applies if the dispute is relating to right, title and interest in the property involved in the suit in which a decree in question was passed. Such a question can be adjudicated only on an application under Rule 97 or Rule 99 of Order XXI of the Code. No separate suit concerning such a question is maintainable. In O.S.No.268 of 2001 the dispute is with respect to a totally different property inasmuch as the definite plea of the respondents is that it is comprised in a totally different survey number and not covered by Ext.B1, based on which the appellants laid their claim. In such circumstances, the bar to a suit created by Rule 101, Order XXI of the Code does not apply to the present suit. Accordingly, I find that the question of law in this regard is also liable to be answered against the appellants. 14 R.S.A.NBo.700 of 2011 In view of what are stated above, this appeal can only fail. Hence, this appeal is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr