M/S. Rajagiri Rubber And Produce ... vs M/S. Madathilkandy Plantations
2021 Latest Caselaw 21035 Ker

  OP(C).1826/2019                     1

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                    THE HONOURABLE MR.JUSTICE V.G.ARUN
  WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA, 1943
                          OP(C) NO. 1826 OF 2019
AGAINST THE ORDER/JUDGMENT IN OS 16/2015 OF SUB COURT, SULTHAN
                             BATHERY, WAYANAD
PETITIONER/S:

            M/S. RAJAGIRI RUBBER AND PRODUCE CO LTD
            (FORMERLY M/S.KALPETTA ESTATE LTD.), REPRESENTED BY
            ITS MANAGING DIRECTOR, MEPPADI POST, VYTHIRI,
            WAYANAD DISTRICT-673577.

            BY ADVS.
            BIJU ABRAHAM
            SRI.B.G.BHASKAR



RESPONDENT/S:

     1      M/S. MADATHILKANDY PLANTATIONS,
            A REGISTERED FIRM REPRESENTED BY ITS WORKING
            PARTNERS, M.K.PADMANABHAN NAMBIAR, S/O.KARUNAKARAN
            NAIR, AGED 73 YEARS, MADATHILKANDY HOUSE,
            PATHIYARAKKARA P.O., PALAYAD VILLAGE, VATAKARA,
            KOZHIKODE DISTRICT-673105.

     2      M.K.ANIL KUMAR,
            AGED 42 YEARS
            S/O.M.K.PADMANABHAN NAMBIAR, MADATHILKANDY HOUSE,
            PATHIYARAKKARA P.O., PALAYAD VILLAGE, VATAKARA,
            KOZHIKODE DISTRICT-673105.

           BY ADVS.
           SRI.M.P.SREEKRISHNAN
           SRI.A.MUHAMMED MUSTHAFA


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 3.8.2021,
THE COURT ON    20.10.2021 DELIVERED THE FOLLOWING:
   OP(C).1826/2019                      2


                              V.G.ARUN, J.
               -----------------------------------------------
                      O.P(C).No.1826 of 2019
               -----------------------------------------------
             Dated this the 20th day of October, 2021

                               JUDGMENT

The petitioner is the defendant in O.S.No.16 of 2015 on the files

of the Subordinate Judge's Court, Sulthan Bathery. The respondents

filed the suit for recovery of possession of 270.06 Hectares on the

strength of title allegedly derived under a court auction in a partition

suit, O.S.No.1 of 1964, of the Sub Court, Vadakara. It is averred that

though, as per the title deed, the extent of land is shown as 332.025

hectares, the total extent in the relevant survey number, as per the

in revenue records, is only 270.06 Hectares. In its written statement,

the defendant claimed that it had acquired right over the plaint

schedule property in an earlier court sale conducted in another

partition suit, O.S. No.34 of 1967 of the Sub Court, Vadakara and its

legal predecessor had obtained physical possession of 810.91 Acres

called Chullikkal Mala, as early as in 1937. With respect to the area

and boundaries shown in the plaint schedule, the defendant's

contention at paragraph 10 of the written statement is as under;

"10. The area of the land shown in the plaint schedule as 270.06 H and the boundaries shown in the plaint are incorrect. This defendant is in possession of 252.53 H in RS 21/1 of Kottappadi village within the boundaries shown in the

schedule below. Which part of this land is intended by the plaint schedule has to be determined by the issue of a commission with the assistance of the survey officials. Since the identity of the plaint property is essential in a suit for recovery of possession, the court has to exercise the power in the amended Order 26 Rule 9 and direct the plaintiff to take out a commission to inspect the property and submit a plan drawn to scale with a report with reference to the title deeds of the plaintiff and back documents, regarding the location, identity, boundaries, and RS number of the property intended by the plaintiff as the plaint schedule property. The defendant reserves its right to file an additional written statement after proper identification of the plaint property, if necessary."

2. At the instance of the plaintiff the court appointed an

Advocate Commissioner to identify and locate the plaint property

with reference to the plaintiff's title deeds and the Advocate

Commissioner submitted Exhibit P3 report and Exhibit P4 plan. Being

dissatisfied with the report and plan, petitioner filed Exhibit P5

application for setting aside Exhibits P3 and P4 and appointing

another Commissioner or to remit the report to the same

Commissioner for rectifying the patent errors pointed out by the

petitioner. Before the trial court, the Advocate Commissioner was

examined as CW1. Thereafter Exhibit P5 application was heard and

dismissed vide Exhibit P8 order. Aggrieved, this original petition is

filed seeking to set aside Exhibit P8 order and to allow Exhibit P5

application.

3. Heard Sri.B.G.Bhaskar, learned counsel for the petitioner and

Sri.M.P.Sreekrishnan, learned counsel for the respondents.

4. Learned counsel for the petitioner contended that, petitioner

having successfully exposed the glaring defects in the report and

plan, the trial court committed a gross illegality in refusing to set

aside the report. The following are some of the patent mistakes

pointed out;

5. Failure to mention about the difference of 61.955 Hectares

between the area shown in the plaint and the area shown in the

plaintiff's title deed. The plaint property was not identified with

reference to the title deeds. In his attempt to show the area as

270.06 Hectares, as claimed in the plaint, the Commissioner included

the Kodoorpuzha and vested forest as part of the plaint schedule

land. The Commissioner failed to locate the four boundaries shown in

the paint schedule and did not even attempt to ascertain the

boundaries with reference to the Adangal Register, which, according

to the learned counsel, is deliberate.

6. Learned counsel referred to the deposition of the Advocate

Commissioner to contend that the Commissioner was ignorant of the

procedure to be adopted for measuring and identifying the

boundaries of large extents of land. Attention is drawn to the

observation of the trial court that the Commissioner was not

examined as part of the enquiry in the interlocutory application filed

by the petitioner. Reliance is placed on the decisions in Retnamma

and Others v. Mehaboo and Others [2013 (2) KHC 670], Paul v.

Varghese and Another [2016 (1) KHC 739] and Thankamani v.

Vasanti and Others [2020 (4) KHC 578] to highlight the duties and

responsibilities bestowed on Advocate Commissioners.

7. The learned counsel for the respondent contended that the

scope for interference against an order rejecting an application for

setting aside an Advocate Commissioner's report is very limited.

According to the learned counsel, the Advocate Commissioner

having acted in terms of the warrant and the directions issued to

him, the attempt of the petitioner is to cause a roving enquiry to be

conducted at the plaintiff's expense was rightly repelled by the trial

court. It is contended that minor mistakes in the Commission report

no reason for setting aside the report, since the Commission report is

only a piece of evidence and the suit is not decided based on the

report alone. The Division Bench decision in Francis Assissi v.

Sr.Breesiya [2017 (1) KLT 1041] is pressed into service to contend

that there is no provision under Order XXVI Rule 10 for setting aside

an Advocate Commissioner's report.

8. Order XXVI of CPC deals with the power of courts to issue

Commissions. As per Order XXVI Rule 9, the court is empowered to

issue a Commission to conduct local investigation for the purpose of

elucidating any matter in dispute. The provision makes it very clear

that the Commission is issued for the purpose of aiding the court in

elucidating the matter in dispute and not for providing evidence in

support of the case of the plaintiff or the defendant. As opined by

this Court in Paul (supra), Advocate Commissioner is a

representative of the court and not an agent of a party and is

therefore duty bound to report facts which are material and relevant

to decide the dispute before the court, whether they support or do

not support the party on whose application he is appointed. In

Thankamani (supra), the trial court's duty to examine the

Commission report and sketch to see whether they are sufficient to

elucidate the matter in dispute has been emphasised. If the court

finds that the report is not helpful in elucidating the matter in

dispute, further enquiry has to be ordered as provided in Order XXVI

Rule 10(3) of CPC. The legal position being as aforementioned, the

trial court went wrong in holding that any discrepancy in the title and

identity contained in the Commission report would only affect the

plaintiff's case adversely and it is not the headache of the defendant

in the suit to set aside the report.

9. The specific case of the petitioner is that as per the title

deed of the plaintiff, the total extent of the plaint schedule property

is 332.025 Hectares, whereas the Commissioner has measured the

area of the plaint schedule property as 270.0564 Hectares. It is

alleged that, in spite of the huge difference in area, the boundaries

of the property is shown to be the same. It is seen that pointed

questions with respect to the measurement were put to the

Advocate Commissioner during his cross-examination and some

crucial answers elicited. Surprisingly, the impugned order is passed

under the impression that the Commissioner was not examined and

no explanation elicited from him regarding the alleged ambiguous

and confusing statements in the report. The omission on the part of

the trial court to consider the deposition of the Advocate

Commissioner cuts at the root of the findings in the impugned order.

In the result, the original petition is allowed. Exhibit P8 order is

set aside. The trial court is directed to consider I.A.No.59 of 2018

afresh, untrammelled by the findings in the impugned order.

Sd/-

V.G.ARUN, JUDGE vgs

APPENDIX OF OP(C) 1826/2019

PETITIONER EXHIBITS

EXHIBIT P1 A TRUE COPY OF THE PLAINT IN O.S.NO.16/15 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P2 A TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P3 A TRUE COPY OF THE COMMISSION REPORT FILED IN I.A.NO.199/2016 IN OS.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P4 A TRUE COPY OF THE PLAN SUBMITTED BY THE COMMISSIONER ALONG WITH COMMISSION REPORT IN I.A.NO.199/2016 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P5 A TRUE COPY OF THE APPLICATION FILED AS I.A.NO.59/2018 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P6 A TRUE COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENT IN I.A.NO.59/2018 IN O.S.NO.16/2015 ON THE FILES OF SUB COURT, SULTHANBATHERY.

EXHIBIT P7            A TRUE COPY OF THE DEPOSITION OF THE
                      COMMISSIONER IN O.S.NO.16/2015 ON THE
                      FILES OF SUB COURT, SULTHANBATHERY AS CW1.

EXHIBIT P8            A TRUE COPY OF THE ORDER IN I.A.NO.59/2018
                      IN O.S.NO.16/2015 ON THE FILES OF SUB
                      COURT, SULTHANBATHERY DATED 23.03.2019.