OP(C) NO. 1372 OF 2022
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
OP(C) NO. 1372 OF 2022
AGAINST THE ORDER/JUDGMENT OS 166/2009 OF MUNSIFF
MAGISTRATE COURT,PERINTHALMANNA
AS 18/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT -
II, MANJERI
PETITIONER/S:
PALEMBADIYAN ALAVI, AGED 65 YEARS, S/O
PALEMBADIYAN MUHAMMED, VALAMBOOR AMSOM,ERANTHODE
DESOM,PERINTHALMANNA TALUK, PIN - 673573
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENT/S:
1 PULAKKAL SUHARA, W/O P.K KUNHIMOHAMMED HAJI
VELAMBUR AMSOM, ERANTHODE DESAM, VELAMBUR P.O,
PERINTHALMANNA TALUK, MALAPPURAM DISTRICT
PIN - 679325
2 P.K KUNHIMOHAMMED HAJI( DIED), S/O MOIDEEN,
VELAMBUR AMSOM, ERANTHODE DESOM, VELAMBUR P.O,
PERNTHALMANNA TALUK, MALAPPURAM DISTRICT
PIN - 679325
3 P.K SALEENATH, W/O KUNAHAMMAD, AYOLI HOUSE,
ELAMARAM,CHERUVAYOOR P.O, CHERUVAYOOR AMSAOM
MAPRAM DESOM, KONDOTTY TALUK, PIN - 673645
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 1372 OF 2022
2
JUDGMENT
The original petition is filed, inter alia, to direct the Court of the Munsiff, Perinthalmanna, to remove the Advocate Commissioner as requested in Ext.P14 application filed in O.S.No.166/2009 and appoint a new experienced Advocate Commissioner and Surveyor, to file a report and plan within a time frame.
2. The skeletal facts, relevant for the determination of the original petition, are: the petitioner is the plaintiff in the above suit filed against the respondents for a prohibitory injunction. The defendants have resisted the suit by filing Exts.P2 and P3 written statements. The 3rd respondent has also filed Ext.P4 additional written statement. The Trial Court, by Ext.P5 judgment, had partially decreed the suit. Challenging the judgment and decree, the respondents had filed A.S.No.18/2012 before the OP(C) NO. 1372 OF 2022 3 Court of the Additional District Judge, Manjeri. The petitioner filed a cross objection. The Appellate Court set aside the decree of the Trial Court. The petitioner challenged the judgment and decree of the Appellate Court by filing R.S.A No.912/2015 before this Court. This Court by Ext.P6 judgment, set aside the judgments and decrees of the Appellate Court and Trial Court and remitted the matter back to the Trial Court for fresh consideration, inter alia, observing that the parties would be at liberty to amend their pleadings, seek for formulation of an issue as regards title, and the parties be granted an opportunity to adduce further evidence. Pursuant to Ext.P6 judgment, the petitioner amended the plaint and has sought for a decree to declare his ownership over the property and also to fix the boundaries of the plaint schedule property. The petitioner had filed Ext.P7 application to appoint an Advocate Commissioner and OP(C) NO. 1372 OF 2022 4 a Surveyor. He also filed Ext.P8 work memo. But the Advocate Commissioner, without ascertaining the property as per the documents and the work memo, filed Ext.P9 report. The petitioner then filed Ext.P10 application to remit the commission report along with Ext.P11 work memo. However, the Advocate Commissioner repeated the same mistake as in Ext.P8 and filed Ext.P12 report. This compelled the petitioner to again file Ext.P13 application, for remission of the commission report. The 1st respondent also filed Ext.P14 application for the same relief. The Court below allowed the applications and remitted the commission report. Nonetheless, the Surveyor was not prepared to visit the property. Then the petitioner filed Ext.P15 application to appoint an experienced Surveyor to assist the Advocate Commissioner. But, the was dismissed by Ext.P16 order. The Advocate Commissioner again repeated the mistakes and did OP(C) NO. 1372 OF 2022 5 not locate the property as per the description in the title deeds, compelling the petitioner to file Ext.P17 application for remission of the commission report. In the meantime, the Advocate Commissioner has filed Ext.P18 report. The petitioner again filed Ext.P19 application to remit the commission report. But the Court below, by the impugned Ext.P20 order, has dismissed Ext.P19 application. Ext.P20 is erroneous and wrong. Hence, the original petition.
3. Heard; Sri.Unni K.K., the learned counsel appearing for the petitioner on admission.
4. This Court had, by Ext.P6 judgment, set aside the divergent findings of the Trial Court and the Appellate Court and remitted the suit back to the Trial Court on the finding that even though the dispute between parties was essentially regarding the title, the Trial Court and the Appellate Court had failed to OP(C) NO. 1372 OF 2022 6 take note of the fact that there was no issue formulated regarding the title. The parties were given liberty to amend their pleadings, the Trial Court was directed to formulate the issues and the parties were at liberty to adduce further evidence, including to seek for a survey commission for proper identification of the plaint schedule property with reference to the documents of title. This Court specifically directed the Trial Court to make every endevour to dispose of the suit within a period of six months from the date of receipt of a certified copy of the judgment, which was pronounced on 06.01.2020.
5. Subsequent to Ext.P6, the petitioner had filed an application to appoint an Advocate Commissioner and Surveyor to submit a detailed plan and report as per the title deeds. The Advocate Commissioner had filed Ext.P9 report. The petitioner found fault with Ext.P9 and filed Ext.P10 application to remit the OP(C) NO. 1372 OF 2022 7 commission report. Pursuant to the allowing of Ext.P10, the Advocate Commissioner filed Ext.P12 report. This time, the petitioner and the 1st respondent were dissatisfied with Ext.P12 and they filed Exts.P13 and P14 applications to remit the report. The Trial Court allowed the application. Thereafter, the Advocate Commissioner filed the report on 14.03.2022. But, the petitioner was again dissatisfied with the report alleging that the Advocate Commissioner has repeated the same mistakes as before and again filed Ext.P17 application to remit the report dated 14.03.2022. The said application was also allowed and the Advocate Commissioner was directed to conduct a fresh inspection. Consequently, he filed Ext.P18 report. The petitioner still being discontented with Ext.P18, filed Ext.P19 application to appoint a new Advocate Commissioner and Surveyor to conduct the inspection afresh. The Court below, by the OP(C) NO. 1372 OF 2022 8 impugned Ext.P20 order, has dismissed Ext.P19 application.
6. A consideration of the sequence of events shows that, subsequent to Ext.P6 judgment passed by this Court, there are four reports on record. The Trial Court has elaborately considered the objections aired by the petitioner in Ext.P19 application and observed in the impugned Ext.P20 order that the contentions raised by the petitioner are untenable, but still his objections can be considered after the examination of the Advocate Commissioner and the Surveyor and the petitioner discrediting the reports and plans that are on record. I find that the course adopted by the Trial Court to be perfectly justifiable and tenable. The petitioner cannot aspire to have a tailor made report to suit his case. An Advocate Commissioner is an Officer of the Court and not an agent of the party. He can and is only expected to report the true state of OP(C) NO. 1372 OF 2022 9 affairs, and not twist or bend what he has seen at the time of the inspection. If the petitioner is disgruntled ever after four reports on record, the onus of proof rests on his shoulders to establish at the time of cross- examination of the Advocate Commissioner and Surveyor, the mistake they have committed. If he can establish that the reports and sketches are incorrect, then he is entitled to get them set aside and get a fresh Advocate Commissioner and Surveyor appointed; other than that, the present stalemate cannot perpetually continue. The suit is of the year 2009. This Court by Ext.P6 judgment had directed the Trial Court to dispose of the suit within a period of six months. It is more that 2½ years since Ext.P6 judgment has been passed. I do not find any ground or circumstances warranting interference with Ext.P20 report by this Court in exercise of the supervisory powers of this Court under Article 227 of the OP(C) NO. 1372 OF 2022 10 Constitution of India. Nevertheless, if the Trial Court, after the examination of the Advocate Commissioner and the Surveyor, finds some merit in the contention raised by the petitioner in Ext.P19 application, it may at its sole discretion, set aside the reports and sketches on record and appoint an Advocate Commissioner and Surveyor, but bearing in mind the time frame fixed by this Court in Ext.P6 judgment. With the above observation, the original petition is dismissed.
SD/-
C.S.DIAS, JUDGE rkc/27.07.22 OP(C) NO. 1372 OF 2022 11 APPENDIX OF OP(C) 1372/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AMENDED PLAINT IN OS NO.166/2009 OF MUNSIFF COURT, PERINTHALMANNA Exhibit P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 1ST AND 2ND DEFENDANTS Exhibit P3 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT Exhibit P4 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT Exhibit P5 TRUE COPY OF THE JUDGEMENT DATED 29.11.2011 OF THE MUNSIFF COURT, PERINTHALMANNA Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 6.1.2020 IN RSA NO.912/2015 Exhibit P7 TRUE COPY OF THE IA NO.4/2020 IN OS NO.166/2009 Exhibit P8 TRUE COPY OF THE WORK MEMO SUBMITTED BY THE PETITIONER Exhibit P9 TRUE COPY OF THE COMMISSION REPORT AND PLAN DATED 7.12.2020 AS PER ORDER IN I A NO.4/2020 Exhibit P10 TRUE COPY OF THE I A NO.7/2021 IN OS 166/2009 Exhibit P11 TRUE COPY OF THE WORK MEMO DATED 6.2.2021 Exhibit P12 TRUE COPY OF THE COMMISSION REPORT DATED 24.8.2021 ALONG WITH PLAN 1 AND 2 OP(C) NO. 1372 OF 2022 12 Exhibit P13 TRUE COPY OF THE I A NO.10/2021 IN OS NO.166/2009 Exhibit P14 TRUE COPY OF THE I A NO.9/2021IN OS NO.166/2009 Exhibit P15 TRUE COPY OF THE I A NO.12/2022 IN OS NO.166/2009 Exhibit P16 TRUE COPY OF THE ORDER DATED 11.1.2022 IN IA NO12/2022 Exhibit P17 TRUE COPY OF THE IA NO.13/2022 IN OS NO.166/2009 Exhibit P18 TRUE COPY OF THE REPORT AND PLAN DATED 9.6.2022 SUBMITTED AS PER IA NO.13/2022 Exhibit P19 TRUE COPY OF THE IA NO.14/2022 IN OS NO.166/2009 Exhibit P20 TRUE CERTIFIED COPY OF THE ORDER DATED 14.7.2022 IN I A NO.14/2022 IN OS NO.166/2009 OF MUNSIFF COURT, PERINTHALMANNA