Vincent v. Ajay PrabhaKAR and others

1 OP (C)No.1286 of 2022 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ## **`OP(C) NO. 1286 OF 2022`** ``` AGAINST THE ORDER/JUDGMENT IN IA 1/2021 IN IA 4192/2013 IN OS 2820/2012 OF I ADDITIONAL MUNSIFF COURT ,THRISSUR PETITIONER/S: ``` ``` VINCENT AGED 70 YEARS S/O CHIRIYANKANDATH KOCHAPPU, ARIMPUR DESOM, PARAKKAD VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT, PIN - 680012 BY ADVS. V.V.JOY ARJUN S. ``` ## **`RESPONDENT/S:`** ``` 1AJAY PRABHAKAR S/O CHAKUMKUMARATH VEETTIL REMADEVI, VADAKKUMPOURAM DESOM, PARAKKAD VILLAGE, THRISSUR TALUK, THRISSUR, PIN - 680012 2ANOOP KUMAR S/O CHAKUMKUMARATH VEETTIL REMADEVI, VADAKKUMPOURAM DESOM, PARAKKAD VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT., PIN - 680012 3N.PRABHAKARAN S/O PARANGATT VEETTIL GOPALAN NAIR, VADAKKUMPOURAM DESOM, PARAKKAD VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT., PIN - 680012 BY ADVS. Sudhish P.G.DEVADAS(K/192/1983) M.MANJU(K/003562/1999) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP (C)No.1286 of 2022 ## **C.S DIAS,J.** **--------------------------OP (C)No.1286 of 2022** **----------------------------Dated this the 26[th] day of July, 2022.** ## **JUDGMENT** The petitioner assails the order passed in IA No.1/2021 in IA No.4192/2013 in OS No.2820/2012 (Ext P13) of the Court of the Additional Munsiff-I, Thrissur, in this original petition. 2. The skeletal facts, relevant for the determination of the original petition are: the petitioner is the defendant in OS No.2820/2012, filed by the respondents for the fixation of the southern boundary of the plaint schedule property with the assistance of the Taluk Surveyor. The respondent has alleged that the petitioner has encroached into his property. The petitioner has resisted the suit by filing Ext P2 written statement. Along with the suit, the respondents had filed an application to appoint an Advocate Commissioner. The Advocate Commissioner by Ext P3 report has found evidence of the removal of the 3 OP (C)No.1286 of 2022 survey stone. Hence, the petitioner sought for the remission of the commission report for fixing the boundary, which was allowed by the court below. In Ext P4 report, the Advocate Commissioner found that the survey stone was recently removed. However, as the Advocate Commissioner was unable to identify and fix the boundary of the property on account of the absence of the survey stone. Then, the respondents filed yet another application to remit the commission report, which was also allowed. In Ext P5 report, it was, inter alia, found that the petitioner has encroached into the PWD road. The petitioner filed Ext P7 detailed objection to Ext P5 report and also Ext P6 application to set aside the report. The application was opposed by the respondents who had filed Ext P7 objection. Nonetheless, the petitioner based on the decision of this Court reported in **Francis Assissi vs Sr.Breesiya** [ **2017 (1) KLT 1041]** had not pressed Ext P6 application. Later, based on Ext P9 report of a retired Taluk Surveyor, the petitioner had filed Ext P8 application to measure out the properties of the petitioner 4 OP (C)No.1286 of 2022 and the respondents by the Survey Superintendent after fixing the survey stone. The said application was also opposed by the respondents who had filed Ext P10 objection. The court below, without appreciating Ext P9 in its proper perspective, by the impugned Ext P11 order dismissed Ext P9. The petitioner challenged the same by filing OP (C)No.1938/2018 before this Court. This Court, by Ext P12 order dismissed the original petition, but observed that the petitioner would be at liberty to move a fresh application to remit the commission report at the appropriate stage. Then, the petitioner filed IA No.1/2021 to remit the commission report and measure the property under the supervision of the Village Officer. It is contended that, instead of the Village Officer, only a staff from the village office was deputed. The said application was also opposed by the respondents. The court below, by the impugned Ext P13 order, dismissed IA No.1/2021. Ext P13 is erroneous and wrong. Hence the original petition. 5 OP (C)No.1286 of 2022 3. Heard; Sri.Arjun.S, the learned counsel appearing for the petitioner and Sri.R.Sudhish, the learned counsel appearing for the respondents. 4. Sri.Arjun.S argued that even though the court below had specifically directed the survey stone to be identified by the Village Officer, only a staff from the village office was present at the time of inspection. Hence, the order of the court below was not properly complied with by the Village Officer. Therefore, the report is unsustainable in law, warranting its remission and the Village Officer may be directed to himself to be personally present and identify the survey stone. 5. Sri.Sudhish, the learned counsel appearing for the respondents submitted that the original petition is bad for suppression of material facts. In fact, pursuant to the order dated 28.1.2020 passed by the court below, the Advocate Commissioner, Surveyor and an official of the Village Office were present in the plaint schedule property. The official of the Village Office had identified and the stone. Based on the above fixed survey 6 OP (C)No.1286 of 2022 inspection, the Advocate Commissioner had filed his report on 20.2.2020. It is long thereafter, that the petitioner had filed Ext P16 objection to the commission report and Ext P14 application, to remit the commission report. The respondents had filed Ext P15 counter statement to Ext P14 application. In the light of the identification of the survey stone by the official of the Village Office, there is no merit in the original petition, which is only to be dismissed. 6. The point is whether there is any irregularity or illegality in Ext P13 order passed by the court below. 7. Undisputably, this Court, by Ext P12 judgment, upheld Ext P11 order passed by the court below and held that if the court below finds that the report and plan needs to be remitted, then notwithstanding Ext P12, the court below would be at liberty to remit the report at the appropriate stage. Ext P12 has become final. 8. Now, the petitioner’s case is that the court below had subsequently remitted the commission report. However, the said order is not produced. Furthermore, 7 OP (C)No.1286 of 2022 the petitioner has also not produced the impugned commission report, which had led the petitioner to file Ext P14 application for further remission. 9. Thus, I accept the submission of the learned counsel appearing for the respondents that the survey stone was identified and fixed by the official of the Village Office pursuant to the order dated 28.1.2020 of the court below. The petitioner has deliberately not produced the said order and the commission report filed therein. I, therefore, draw adverse inference against the petitioner. The suit is of the year 2012. It is at the fag end of determination. The petitioner cannot aspire to have a tailor made commissioner’s report. The Advocate Commissioner is an Officer of the Court and not an agent of the party. The Advocate Commissioner can only and is only expected to report the true state of affairs. Also, a commissioner’s report is a corroborative material which cannot be set aside/remitted on the mere asking of a party, without cogent reasons. The petitioner has not established any ground or circumstances warranting the 8 OP (C)No.1286 of 2022 interference by this Court. Therefore, I am not inclined to exercise the supervisory powers of this Court under Article 227 of the Constitution of India and interfere with Ext P13 order. The original petition fails and is dismissed. **sd/-** sks/26.07.2022 **C.S.DIAS, JUDGE** 9 OP (C)No.1286 of 2022 ## **`APPENDIX OF OP(C) 1286/2022`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`A TRUE COPY OF THE PLAINT IN`| ||`O.S.NO.2820/2012 BEFORE THE MUNSIFF'S`| ||`COURT, THRISSUR FILED BY THE RESPONDENTS`| ||`DARED 07.08.2012`| |`Exhibit P2`|`A TRUE COPY OF THE WRITTEN STATEMENT FILED`| ||`BY THE PETITIONER IN OS NO.2820/2012 OF`| ||`THE MUNSIFF COURT, THRISSUR DATED`| ||`11.01.2013`| |`Exhibit P3`|`A TRUE COPY OF THE REPORT OF THE ADVOCATE`| ||`COMMISSIONER IN I A 9497/2012 IN OS`| ||`NO.2820/2012 OF THE MUNSIFF COURT,`| ||`THRISSUR`| |`Exhibit P4`|`A TRUE COPY OF THE SECOND REPORT OF THE`| ||`ADVOCATE COMMISSIONER IN I A 9497/2012 IN`| ||`O S 2829/2012 BEFORE THE MUNSIFF'S COURT,`| ||`THRISSUR`| |`Exhibit P5`|`A TRUE COPY OF THE COMMISSION REPORT FILED`| ||`BY THE ADVOCATE COMMISSIONER IN O S`| ||`2820/2012 OF MUNSIFF'S COURT, THRISSUR`| |`Exhibit P6`|`A TRUE COPY OF IA NO.18780/2018 IN OS`| ||`NO.2820/2012 OF THE 1ST ADDITIONAL MUNSIFF`| ||`COURT, THRISSUR FILED BY THE PETITIONER`| ||`DATED 29.09.2016`| |`Exhibit P7`|`A TRUE COPY OF THE OBJECTION TO IA`| ||`NO.18780/2018 IN OS NO.2820/2012 OF THE`| ||`MUNSIFF COURT, THRISSUR FILED BY THE`| ||`RESPONDENTS DATED MARCH 2017`| |`Exhibit P8`|`A TRUE COPY OF THE ABOVE APPLICATION IN IA`| ||`NO.9108/2018 IN I A 4192/2013 IN OS`| ||`NO.2820/2012 OF THE MUNSIFF COURT,`| ||`THRISSUR`| |`Exhibit P9`|`A TRUE COPY OF THE SKETCH PREPARED BY THE`| ||`RETIRED TALUK SURVEYOR, THRISSUR`| |`Exhibit P10`|`A TRUE COPY OF THE OBJECTION FILED BY THE`| ||`RESPONDENTS IN I A 9108/2018 IN O S`| ||`2820/2012 OF THE I ADDITIONAL MUNSIFF'S`| ||`COURT, THRISSUR`| |`Exhibit P11`|`A TRUE COPY OF THE ORDER DTD 10.07.2018 IN`| ||`IA NO.9108/2018 IN OS NO.2820/2012 OF THE`| ||`1ST ADDITIONAL MUNSIFF'S COURT, THRISSUR`| |`Exhibit P12`|`A TRUE COPY OF THE JUDGMENT OF THIS`| ||`HON'BLE COURT IN OP(C) 1938/2018 DTD`| ||`14.02.2019`| 10 OP (C)No.1286 of 2022 ``` Exhibit P13A TRUE COPY OF THE ORDER IN IA NO.1/2021 IN IA NO.4192/2013 IN OS.NO.2820/2012 OF THE 1ST ADDITIONAL MUNSIFF'S COURT, THRISSUR DTD 21.06.2022 EXHIBIT P14TRUE COPY OF THE AFFIDAVIT AND PETITION DATED 12.10.2021 IN IA 1/2021 IN IA 4192/2013 IN OS 2820/2012 OF THE FIRST ADDITIONAL MUNSIFF COURT, THRISUR EXHIBIT P15TRUE COPY OF THE COUNTER FILED BY THE RESPONDENT HEREIN AED 21.12.2021 IN IA 1/2021 IN IA 4192/2013 IN OS 2820/2012 OF THE FIRST ADDITIONAL MUNSIFF COURT, THRISUR TRUE COPY OF THE OBJECTION FILED DATED EXHIBIT P1610.6.2020 FILED BY THE PETITIONER HEREIN AGAINST THE COMMISSION REPORT DATED 20.2.2020 IN IA NO.1/2021 IN IA 4192/2013 IN OS 2820/2012 OF THE FIRST ADDITIONAL MUNSIFF COURT, THRISSUR ```