"9. The Original Petition is accordingly disposed of,
directing the court below to appoint an Advocate
Commissioner for the purpose of identifying the
properties covered by document Nos.1889/1950,
540/1992, 1047/1994 and 2735/1957 with the
assistance of a qualified Surveyor. The properties shall
be identified with the aid of survey documents
including the FMB. The parties will be at liberty to
hand over the requisite documents and to submit work
memos to the Advocate Commissioner. The court
below shall pass orders appointing an Advocate
Commissioner within two weeks of receipt of a copy of
this judgment and shall instruct the Advocate
Commissioner to submit the report within an outer
limit of two months from the date of issuance of the
warrant of commission."
7. In obedience to the said direction, the
Commissioner assisted by a Surveyor was deputed. Ext.P17 is
the report filed by the commissioner. The 2nd defendant took
exception to the said report. According to him, the
alone. It was also alleged that the property covered by
document No.2756/1998 was not identified. Personal bias on
the part of the commissioner was also alleged. After
therewith. A new commissioner and Taluk Surveyor were
appointed. The observations and directions issued by the
"4. On going through the commission report filed on
01.09.22, the Advocate commissioner had reported that the
property covered by the document bearing No. 541/1992 was
not measured. The document bearing No. 541/1992 as per
resurvey in the said document, the said property is having
1.003 hectors. After the property covered by document
bearing No.540/92, the remaining property is having only
80.05 Ares. The property covered by document bearing No.
PF 217/64 is in the possession of 3 rd parties. It is also
reported that the property covered by the document bearing
No.2756/1998 is not shown in the plan. To the question No. 4
in the work memo, the commissioner had reported the
descriptions in the documents. So, from the commission
report, it can be very clearly seen that the property was not
measured on the basis of sketch attached to the purchase
certificate bearing No. PF 217/64 and the property covered
by the document bearing No.2756/1998 and the property
covered by the document bearing No. 541/92. Also, on going
through the plan the physical boundaries available in the
property is not shown. The plans are in such a way
ambiguous and confusing. So, the commission report and
plan is not sufficient enough to have a fair adjudication of the
suit. So it is necessary to remit back the commission report
so as to ensure a fair adjudication of the suit. The rights of
the parties and nature of the documents submitted and the
rights of the parties on the basis of documents are all
matters of adjudication in the suit. The Advocate
commissioner is directed to identify the properties on the
basis of sketch attached to the document bearing No. PF
217/64, 541/92, 2756/1998, 1889/50, 2735/57, 540/92,
1047/94. On the basis of the old survey, resurvey, side
measurements, boundaries shown in the documents, survey
boundaries and other modes of identification available in the
place. It is further directed that the physical boundaries
available in the place shall be clearly noted in the plan. Also,
the Advocate commissioner is directed to note the properties
covered by each document and if any overlapping is there
while measuring the properties on the basis of other
documents, the overlapping should be specifically noted
clearly and the properties covered by each documents should
be shown in different colours and also the property which is
having any overlapping should also be shown in different
colours, the survey lines both resurvey and old survey shall
be shown in different colours, physical boundary lines should
also be shown in different colours, the nature of physical
boundary available in the place should be noted. Even if in
the property is in the possession of 3 parties, by giving notice
to them, the property has to be measured without which a
fair adjudication is not possible while considering the nature
of the suit herein. There is an allegation from the side of the
petitioner that the Advocate commissioner was an earlier
junior counsel to the plaintiff's counsel. So, to ensure the
confidence, the Advocate commissioner is also be substituted.
Taluk surveyor is hereby appointed to assist the Advocate
commissioner herein. The petitioner herein is directed to pay
Rs. 4,000/- towards the remuneration of the Advocate
commissioner and Rs.1,500/- towards the remuneration of the
Taluk surveyor. Issue intimation to the Taluk surveyor.
Petitioner and the respondent is at liberty to file work memo to
the Advocate commissioner so as to note the factors which are
required for a fair adjudication of the suit. Adv. K.M Alias is
appointed as the Advocate commissioner herein by substituting
the earlier commissioner."
8. The essential reason for the learned Munsiff setting
aside Ext.P17 report and the survey sketch is that the
property covered by the document Nos.541/1992 and
2756/1998 were not identified with reference to the purchase
certificate No.PF-217/1964. The further observation by the
learned Munsiff is that the demarcation of various properties
covered by the documents in question have not been clearly
demarcated in the survey sketch with reference to the
physical boundaries as well as the documents referred to
therein. It is also noted that the sketch is very ambiguous and
confusing. The learned Munsiff is of the view that with the
help of such a survey sketch the dispute involved in the suit
cannot be fairly adjudicated.
9. According to the learned counsel for the petitioner
such a view is totally incorrect since each property covered by
the documents, namely, documents No.540/1992, 541/1992,
524/1992, 1047/1994 and 2756/1998 were separately
demarcated in the documents. It is also submitted that the
property covered by document No.1889/1950 has been
demarcated and shown. Of course, the property was not
demarcated with reference to the plan appended to the
purchase certificate No.PF-217/1964. But that was for
decipherable reasons. The said plan was concerning the whole
property comprised in Sy.No.220/1/1 and it was not possible
for identifying the whole property now, especially when major
portion of it is in the possession of the third parties. Moreover,
such a demarcation is quite unnecessary to have a resolution
of the dispute involved in the suit.
10. The learned counsel for the 2nd defendant, on the
other hand, would submit that the commissioner had taken up
the task of deciding the dispute in the suit himself. He
observed in the report that after execution of document
Nos.540/1992 and 541/1992, there was no property with the
1st defendant for assigning as per document No.1047/1994.
The commissioner was thoroughly mistaken about identity of
the properties and did not venture to identify the properties
as requested in the work memo given by the defendants. That
resulted in submission of a totally incomplete report and
survey sketch. The learned counsel accordingly would submit
that survey demarcation of the properties afresh is absolutely
necessary and hence the impugned order is not liable to be
interfered with.
11. The purpose of a commission report is to provide
inputs to resolve the dispute involved in the suit. In order to
arrive at a fair adjudication in the suit, what is required is to
identify the properties covered by document Nos.540/1992,
541/1992 and 1047/1994. Such identification necessarily
involved demarcation of the property covered by document
No.1880/1950 since the same is the document to which the
1st defendant traced his title while executing the cancelled
documents. The plaintiff wants to set aside cancellation deed
No.3425/1997 by which documents No.540/1992 and
1047/1994 were cancelled. The 1 st defendant thereafter
executed document No.2756/1998 conveying 50 cents of land
in favour of the 2nd defendant. That document is also sought
to be set aside. The decree of declaration of title is sought as
a consequence of the said reliefs. Alleging that following
execution of the cancellation deed and subsequent sale deed,
the properties belonging to the plaintiff were trespassed upon
by the defendants, recovery of possession of the same is also
sought. A decree of injunction is sought in respect of the
property covered by document No.524/1992 as well.
12. When the above are the reliefs claimed, the queries
posed before the commissioner, particularly, in terms of the
work memos submitted by the parties, expanded the scope of
investigation to a large extent. This Court as per Ext.P14 gave
direction concerning the investigation to be conducted by the
commissioner, which has been extracted above. The question,
therefore, is whether the report of the commissioner meets
the aforesaid requirements and directions.
13. The commissioner was directed as per Ext.P14 to
identify the properties covered by document Nos.1889/1950,
540/1990, 1047/1994 and 2735/1957. It is true that the
parties were permitted to submit work memos to the
commissioner. Needless to say, the queries allowed to be
posed before the commissioner should have been concerning
the matter in issue involved in the suit. Exts.P15 and P16 are
the work memos submitted by the 2 nd respondent and the
plaintiff respectively. Whether the question in the said work
memos are necessary to decide the controversy in the suit is
quite doubtful. The commissioner should have limited the
scope of investigation to the questions in controversy in the
suit. If he was not in a position to do so, he should
have obtained direction in that regard from the learned
Munsiff.
14. In I.A.No.3 of 2022, the 2nd defendant raised the
contention that the commissioner failed to properly identify
the properties as requested in his work memo. Accepting the
said contentions, the learned Munsiff held that the properties
covered by document No.PF-217/1964, document No.541/1992
and document No.2756/1998 were not demarcated and
shown in the survey sketch. The personal allegation against
the commissioner was also reckoned with. Accordingly, the
learned Munsiff ordered that a new commission is liable to be
appointed for identifying the properties covered by document
Nos.PF-217/1964, 541/1992, 2756/1998, 1889/1950, 2735/1957,
540/1992 and 1047/1994.
15. As stated, the dispute involved in the suit pertains
to the properties covered by document Nos.540/1992,
541/1992, 524/1992 and 1047/1994. When the 2 nd defendant
claims that the 1st defendant sold him 50 cents of land as per
document No.2756/1998 after executing cancellation
document No.3425/1997, identification of the property
covered by document No.2756/1998 may be incidental. The
1st defendant having traced his title to document
No.1889/1950 while executing the documents in favour of the
plaintiff, identification of the property covered by the said
document is also essential.
16. It may be noted that the assertion of the 1 st
defendant in document Nos.540/1992 and 1047/1994 were
that the properties assigned as per those documents were
parts of the property covered by document No.1889/1950.
That fact is admitted by the defendant Nos.1 and 2 in their
written statement, Ext.P7. It is averred in paragraph No.5 of
the written statement that:
"5. The averment under para V of the plaint that both
the gift deed (G.D.No. 540/92 and GD No.1047/94) are
valid gift deeds is utterly false and hence denied by these
defendants. Actually the first defendant who executed both
Gift Deeds had no right to execute such a gift deeds and
the properties gifted by him were not belonged to him.
These gift deeds were executed by the first defendant by
the plaintiff. Even though the first defendant obtained
these properties in the year 1950 as per document
No.1889/1950, he had executed a sale deed in favour of
his wife in the year 1957 as per the document No 2735 of
the Sub Registrar Office, Perumbavoor. Hence the first
defendant had no right to execute the gift deed with regard
to those properties scheduled as item No.I and item No. II.
Therefore the gift deed itself is void abinitio. Hence the suit
itself is liable to be dismissed."
When the pleadings are to that effect, the scope of enquiry in
the suit need not be expanded and ventured to identify the
properties covered by all the other documents as directed by
the learned Munsiff.
17. In the above context, it is pertinent to note that in
an earlier round of litigation, O.S.No.156 of 1999, the claim of
the 2nd defendant for fixation of the eastern boundary of his
property was rejected. In that, the claim of the 2 nd defendant
was in respect of properties covered by document
Nos.541/1992 and 2756/1998. In the appeal and the second
appeal, the 2nd defendant could not succeed. Ext.P9 is the
plaint and Exts.P10 to P12 are the judgments of the trial
court, appellate court and High Court respectively. When that
question has been decided finally against the 2 nd defendant,
the process of the court cannot be invoked to give a new
lease of life to that dispute.
18. In Ext.P17, the property covered by document
Nos.1889/1950, 540/1992 541/1992, 1047/1994 were
identified and demarcated. Of course, the area of the
property, particularly, the property covered by document
No.541/1992 as per possession is shown less. Besides such
identification and demarcation, the commissioner went on to
observe that the 1st defendant did not have the right to
execute several documents as per which he alienated the
properties described in such documents. Also, it was opined
by the commissioner that there have been mistakes in
mentioning survey numbers in the documents. The
commissioner ought not have entered to make such
observations as to title to the properties and the right to
execute the documents in question. The court shall have to
ignore such observations in the report. The allegation of
personal bias is not a reason, at this stage, to set aside
Ext.P17.
19. The commissioner has delineated and shown the
properties covered by document Nos.1880/1950, 540/1992,
541/1992, 1047/1994. As directed by this Court in Ext.P14
judgment, the property covered by document No.2756/1998
has also been demarcated. The commissioner's report
contained those particulars. Of course, the demarcation being
made in a single plan, there is overlapping and a little of bit of
confusion. With the help of the marginal note, the
demarcation, however, can be deciphered.
20. True, many queries posed by the parties in the work
memos were not appropriately answered by the commissioner.
But, in the facts and circumstances of the case and in the light
of the directions in Ext.P14, the impugned order of the learned
Munsiff does not sustain. The learned Munsiff may proceed to
record the evidence in the suit. After considering the evidence
in the light of the pleadings, if the learned Munsiff finds that the
commission report is deficient in any respect and more details
are required to answer the issues framed in the suit, this order
will not be a fetter to call for an additional or supplemental
report. At that stage, the learned Munsiff will be more equipped
to take a proper decision in the matter as well.
21. Accordingly, this original petition is allowed and the
order in I.A.No.3 of 2022 in O.S.No.111 of 1999 of the
Munsiff's Court, Perumbavoor is set aside, however, with the
aforementioned observations. The time limit prescribed in
Ext.P14 judgment to dispose of the suit shall commence from
the date of production of a certified copy of this judgment.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
APPENDIX OF OP(C) 292/2023
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF DOCUMENT NUMBER 540/92
DATED 09.03.1992 EXECUTED BY VARKEY IN
FAVOUR OF THE PETITIONER
EXHIBIT P2 A TRUE COPY OF DOCUMENT NUMBER
541/1992 DATED 09.03.1992 EXECUTED BY
VARKEY IN FAVOUR OF THE 1ST RESPONDENT
EXHIBIT P3 A TRUE COPY OF DOCUMENT NUMBER
1047/1994 DATED 29.03.1994 EXECUTED BY
VARKEY IN FAVOUR OF THE PETITIONER
EXHIBIT P4 A TRUE COPY OF THE CANCELLATION DEED
DATED 17.12.1997 EXECUTED BY DECEASED
1ST DEFENDANT
EXHIBIT P5 A TRUE COPY OF DOCUMENT NUMBER
2756/1998 DATED 16.11.1998 EXECUTED BY
VARKEY IN FAVOUR OF THE 1ST RESPONDENT
EXHIBIT P6 A TRUE COPY OF THE PLAINT IN O.S.
111/1999 DATED 22.02.1999 ON THE FILE
OF THE MUNSIFF COURT PERUMBAVOOR
EXHIBIT P7 A TRUE COPY OF THE JOINT WRITTEN
STATEMENT FILED BY DECEASED 1ST
DEFENDANT AND THE 1ST RESPONDENT DATED
EXHIBIT P8 A TRUE COPY OF THE ADDITIONAL WRITTEN
STATEMENT FILED BY THE 1ST RESPONDENT
EXHIBIT P9 A TRUE COPY OF THE PLAINT IN O.S.
156/1999 DATED 16.03.1999 ON THE FILE
OF THE MUNSIFF COURT PERUMBAVOOR FILED
BY THE 1ST RESPONDENT AGAINST THE
PETITIONER
EXHIBIT P10 A TRUE COPY OF THE JUDGMENT IN O.S.
156/1999 DATED 30.11.2004 ON THE FILE
OF THE MUNSIFF COURT PERUMBAVOOR
EXHIBIT P11 A TRUE COPY OF THE JUDGMENT IN A.S.
7/2005 DATED 25.07.2006 ON THE FILE OF
THE ADDITIONAL DISTRICT COURT NORTH
PARAVUR
EXHIBIT P12 A TRUE COPY OF THE JUDGMENT OF THIS
HONOURABLE COURT IN RSA 1045/2006
DATED 05.04.2011
EXHIBIT P13 A TRUE COPY OF THE JUDGMENT OF THIS
HONORABLE COURT IN W.P. (C) 27158/2008
DATED 05.09.2008
EXHIBIT P14 A TRUE COPY OF THE JUDGMENT IN O.P.
(C) 3035/2014 DATED 24.08.2021
EXHIBIT P15 A TRUE COPY OF THE WORK MEMO DATED
22.09.2021 FURNISHED BY THE COUNSEL
FOR THE 1ST RESPONDENT TO THE ADVOCATE
COMMISSIONER
EXHIBIT P16 A TRUE COPY OF THE WORK MEMO DATED
30.09.2021 FURNISHED BY THE COUNSEL
FOR THE PETITIONER TO THE ADVOCATE
COMMISSIONER
EXHIBIT P17 A TRUE COPY OF THE REPORT AND PLAN
PREPARED BY THE ADVOCATE COMMISSIONER
DATED 01.09.2022
EXHIBIT P18 A TRUE COPY OF THE OBJECTION DATED
14.09.2022 FILED BY THE 1ST RESPONDENT
TO THE REPORT OF THE ADVOCATE
COMMISSIONER
EXHIBIT P19 A TRUE COPY OF THE AFFIDAVIT AND
PETITION AS I.A. 3/2022 DATED
14.09.2022 BY THE 1ST RESPONDENT
EXHIBIT P20 A TRUE COPY OF THE OBJECTION DATED
26.09.2022 FILED BY THE PETITIONER TO
EXHIBIT P21 A TRUE COPY OF THE PATTA DATED
29.09.1964 ISSUED BY THE TAHSILDAR
KUNNATHUNADU TO THE 1ST DEFENDANT
EXHIBIT P22 A TRUE COPY OF THE SKETCH DATED
08.10.1952 ALLEGEDLY RELIED UPON BY
THE 1ST RESPONDENT
EXHIBIT P23 A TRUE COPY OF THE ORDER DATED
22.12.2022 IN I.A. 3/2022 IN
O.S.111/1999 OF THE MUNISFF COURT
PERUMBAVOOR
RESPONDENT EXHIBITS
EXHIBIT R1(A) A TRUE COPY OF SALE DEED NO.2735/1957
OF THE SRO PERUMBAVOOR DATED
23.10.1957
EXHIBIT R1(B) A TRUE COPY OF THE BASIC TAX REGISTER
EXHIBIT R1(C) A TRUE COPY OF THE GIFT DEED
NO.539/1992 OF THE SRO KURUPUMPADY
DATED 09-03-1992 ALONG WITH READABLE
COPY
EXHIBIT R1(D) A TRUE COPY OF SALE DEED NO.29/1998 OF
THE SRO KURUPPAMPADY DATED 05-01-1998
EXHIBIT R1(E) A TRUE COPY OF SALE DEED NO.2503/1998
OF THE SRO KURUPUMPADY DATED 10-10-
EXHIBIT R1(F) A TRUE COPY OF COMMISSION REPORT
SUBMITTED BY THE ADVOCATE COMMISSIONER
M.G. JAYACHANDRAN DATED 21-02-2011
EXHIBIT R1(G) A TRUE COPY OF SURVEY PLAN SUBMITTED
BY THE ADVOCATE COMMISSIONER M.G.
JAYACHANDRAN DATED 21-02-2011
EXHIBIT R1(H) A TRUE COPY OF THE SALE DEED
NO.1889/1950 OF THE SRO PERUMBAVOOR BY
DATED 15-04-1950
