Palembadiyan Alavi vs Pulakkal Suhara
2022 Latest Caselaw 9009 Ker

OP(C) NO. 1372 OF 2022
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           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
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                         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

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

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

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

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

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

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

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

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

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

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