Kunjumani vs Jayalakshmi

A. Badharudeen, J

The defendants in O.S.No.165/2006 on the files of Principal Munsiff Court, Palakkad are the appellants in this Second Appeal filed under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure. The respondent is the sole plaintiff in the above suit.

Concurrent verdicts rendered by the trial court as well as the appellate court in O.S. No.165/2006 on the files of the Principal Munsiff Court, Palakkad and A.S. No.329/2009 on the files of the District Court, Palakkad, are under challenge in this appeal.

For easy reference and convenience, the parties in this appeal will be referred hereafter as `plaintiff' and `defendants' relegating their status before the trial court.

Heard   the   learned   counsel   for   the appellants/defendants as well as the sole respondent/plaintiff in detail.

As on 6.7.2015, my learned predecessor who admitted this appeal raised the following substantial questions of law to be decided in this appeal:-

“1) Whether the courts below are justified in decreeing the suit in spite of the Advocate Commissioner's report and plan reveal that the appellants' case is more probable than the respondent's case ?

2) Whether the plaintiff/respondent is entitled to get a declaration and injunction in view of the fact that he does not lay a claim in respect of any property having an extent more than that is covered by Exts.A1 and A3 ? “

Originally, the suit was filed for permanent prohibitory injunction restraining the defendants and their men from trespassing upon the plaint schedule property obtained by the plaintiff on the strength of assignment deed No.1586/2004 and sale deed No.1902/2002. According to the plaintiff, the plaint schedule property was obtained by the plaintiff from its prior owner, who obtained the same as per document No.494/1981, as item No.5 in the schedule.

Initially, the suit was filed apprehending trespass upon the plaint schedule property and later the suit was amended with a prayer to declare the title of the plaintiff over the plaint schedule property.

The defendants filed written statement and additional written statement. It was contended that , 3 cents of property abutting the plaint schedule property is part of the property obtained by the defendants on the strength of patta dated 4.10.1976 issued vide Patta.No.6956/1976 of the Special Tahsildar, Kuzhalmannam. It is also submitted that defendants are in possession and enjoyment of the said extent of land and for which they have been paying tax. Accordingly, they prayed for dismissal of the suit.

The court below recorded the evidence, confining the same to PW1 and Exts.A1 to A6 on the side of the plaintiff. DW1 examined and Exts.B1 to B4 marked on the side of the defendants. Exts.C1, C2 and C3 also were marked. Finally, the learned Munsiff granted decree as under:

“a) Suit is decreed.

b) A decree of declaration is granted holding that the plaintiff is the owner of the property shown in Ext. C3(a) plan that comprised in survey No. 475/4 and 475/2. It is made clear that Ext. C3(a) plan will form part of this decree.

c) A decree of permanent prohibitory injunction is granted restraining the defendants from trespassing into the plaint schedule property that is shown in Ext. C3(a) plan that comprised in survey No. 475/4 and 475/2.

d) No costs”

Though A.S. No.329/2009 was filed before the District Court, Palakkad, challenging the verdict of the trial court, the appellate court dismissed the appeal and concurred the verdict of the trial court.

Coming to the substantial questions of law, the case of the plaintiff is that, the plaintiff obtained the plaint schedule property on the strength of assignment deed No.1586/2004 and sale deed No.1902/2002. The above title deeds got marked as Exts.A1 and A3 and the prior title deed of Exts.A1 and A3 is marked as Ext.A2.

Per contra, the case of the defendants is that, as per patta No.6956/1976 marked as Ext.B1, the defendants obtained property having an extent of 30 cents and a portion of the same having an extent of 3 cents lies abutting the plaintiff's property, is the said 3 cents of property covered by Ext.B1, for which the plaintiff has neither title or possession.

The trial court considered the rival contentions and discussed the evidence in detail in para.11 of the judgment. It was found by the trial court that the property of 30 cents obtained by the defendants as per Ext.B1 patta is in old survey No.225 A/5 part and the property covered by Ext.A2 is the property in old survey No.225 A/7 part. The trial court also considered the nature of the property as described in the respective title deeds. It was found that as per the narration in Ext.B1-patta, the property therein is described as ‘Kulathil eppozhulla bagam’ and the eastern side of the said property is shown as ‘pond’. Further, it was found by the trial court that as per Ext.A2, the entire property is shown as `pond' alone. Accordingly, the trial court found that the plaintiff established better title over the plaint schedule property, identified by the Commissioner as per Ext.C3 plan, comes to an extent of 34.93 cents.

The appellate court also concurred the finding of the trial court.

While impeaching the veracity of the concurrent verdicts, the learned counsel for the defendants submitted that the Commissioner failed to locate the property of the defendants as per Ext.B1, though it was asked for, by filing a work memo at the time of inspection of the property by the Commissioner. In this regard, the learned counsel invited the attention of this Court to Ext.C3 as well as Ext.C2 reports.

On a perusal of Ext.C3 report, the Commissioner stated in paragraph 2 of the report that he had measured the plaint schedule property as asked for in I.A.No.1583/2008 and located the plaint schedule property as under:-

“According to that as stated above, I have visited the plaint schedule property finally on 16.02.09 at 2.30 p.m. with the assistance of private surveyor and identified the plaint schedule property as following:

According to the title deed, parent deed as well as the Village Records, the Plaint Schedule property is a Vacant land situated in the Southern side of the Pudunagaram-Palakkad Main (PWD Road) Road having an extent of 34.93 cents comprised Survey No.475/2 and 475/4 having its 4 boundaries as follows :

East : House and Compound of Maniyan Maniadiyar, Hussain and Somasundaram.

North : P.W.D.Road (Pudunagaram-Palakkad Main Road)

South: Private Road and property belong to Sudha and Appukkuttan.

West: Panchayath Road.

According to the plaintiff the property is to be measured as per the present title deed as well as the parent title deed. But I did not find the East-West, South-North measurement in both the above title deeds and hence, after due consultation with the private surveyor herein I came to understand that the plaint schedule property can be measured only according to the four boundaries mentioned in the above said title deeds and thereby to get only the total extent available at present and not more than that. According to that I measured the plaint schedule property with the assistance of private surveyor and thereby got the total extent available with in the 4 boundaries of the plaint schedule properties and the same is specifically marked in the survey sketch appended herewith. As demanded by the plaintiff the plaint schedule property were also measured according to village records and the same has been marked in the above said survey sketch. No other points were asked to be noted by the plaintiff at the time of my visit.”

It was stated by the Commissioner that the defendants also filed a work memo and as per which he had identified the matters asked for in the work memo, which are extracted as under:

“According to the work memo filed by the defendant the 1st point asked to be noted is :-

To measure the property owned by the defendants and to mark the same in the plan ?

(Ans). The property which the defendants pointed out and claimed as there own property which is seems to be fenced in the 4 sides is measured and marked in the survey sketch. Whether that property is belongs to the defendant or not is the matter to be decided by this Honourable Court.

To identify the property owned by the defendants comprised in sy.no.475/2, according to the FMB and to mark the same in the plan?

(Ans.) The property comprised in Sy. No. 475/2 which is claimed by defendants as there own is identified by me as per the FMB as stated below:

The said property is a vacant land situated in the South West Corner of the Plaint schedule property having an extent of 3.93 cents, which is at the time of my visit seems to be fenced in all the 4 sides and its 4 boundaries are as follows:

East: Plaint Schedule Properties

North: Plaint Schedule Properties

West: Panchayath Road

South: Private Road

The above said property is marked in the sketch. Whether the same is belong to the defendants or not is the matter to be decided by this Honourable Court.

To note and report that the property owned by the defendants are lying in one compound as one plot and the same is fenced in all the four boundaries?

(Ans.) As there is a dispute with regard to the right of the plaintiff and defendants over the plaint schedule property, unless this Honourable Court decide the issue, I am not in a position to say to what extent the plaintiff or the defendant is having the right over the plaint schedule property. Hence, at this juncture, I cannot say that the property belongs to the defendants are lying in one compound as one plot. But at the time of my visit I saw that some portion of the plaint schedule property is covered with fence in its four sides and the same is seems to be included in the plaint schedule property. That is also marked separately in the sketch appended herewith. ”

Before proceeding further in this case, it is noticed in general when the case records from the northern districts were perused, including the instant case, that when a Commissioner was appointed by a Court of law for local investigations for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of mesne profits or damages or annual net profit, as the Court thinks fit, and report thereon, in addition to the matters, the Court directed in the petition filed by the parties or allowed by the Court to be located in consideration of the objection filed by the other side, the parties would file a work memo to the Commissioner and the Commissioner usually acts upon the work memo and prepare mahazar and report thereof, without any permission or order from the Court. By continuance of this practice, eventually a party who gets appointment of a commission after satisfying the Court regarding the essentials to decide the matter in dispute, widens the duty of the Commissioner in excess of what have been directed by the Court. This situation leads the parties to ascertain the matters of their choice irrespective of its relevance at the junction of the Commissioner, without the knowledge and order of the Court.

While tracing the power of the parties to file work memo to the Commissioner without the permission and direction of the Court, a direct provision authorising filing of work memo could not be traced. Section 75 of C.P.C deals with the power of Court to issue commissions, subject to such conditions and limitations, to examine a person, to make local investigation, to examine or adjust accounts or to make a partition, to hold a scientific, technical or expert investigation, to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit and to perform any ministerial act.

It is emphatically clear that appointment of commissions for local investigations is governed by Order 26 Rule 9 of the C.P.C. Order 26 Rule 9 provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court, provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

Order 26 Rule 1 deals with issue of commission to examine witnesses; Rule 2 deals with order for commission for the purpose of examination of a witness; Rule 4A deals with commission for examination of any person resident within the limits of the jurisdiction of the Court; Rule 5 deals with examination of witnesses by the Commissioner not within India. Rule 10 provides for the procedure of Commissioner. Sub rule (1) of Rule 10 provides that the Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. Sub rule (2) deals with the report and deposition to be evidence in suit, which provides that the report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. Sub rule (3) deals with examination of Commissioner in person, which provides that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Rule 10A deals with commission for scientific investigation; Rule 10B deals with commission for performance of a ministerial act; Rule 10C deals with commission for sale of movable property and Rule 11 deals with commission to examine or adjust accounts. Similarly, Rule 13 authorises the Court to appoint commissions to make partitions.

Order 26 Rule 16 of C.P.C deals with the powers of the Commissioners and it has been provided that any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment,-- (a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him; (b) call for an examine documents and other things relevant to the subject of inquiry; (c) at any reasonable time enter upon or into any land or building mentioned in the order. Rule 16(a) would apply to examination of witnesses and Rule 16(b) deals with the power of the Commissioner to call for and examine documents and other things relevant to the subject of inquiry; and Rule 16(c) deals with the power of the Commissioner at any reasonable time to enter upon or into any land or building mentioned in the order.

Rule 150 to 168 of the Civil Rules of Practice Kerala deals with appointment of commissions under the chapter `incidental proceedings'. Rule 150 prescribes the mode to apply for appointment of commission by parties to the Suit. Rule 151 deals with issue of commission by Court without a formal application by the parties and it has been provided that (1) in cases where for a proper adjudication of the dispute between the parties, the Court finds it necessary that there should be a Commissioner's plan, account or report it shall order accordingly and direct the party on whom the burden lies in respect of the matter concerned to deposit the necessary batta without calling for an application for the purpose and (2) such order shall ordinarily be issued soon after the issues are framed. Rule 157 permits the commissioner to receive document, material object or application presented before him. It has been stipulated further that the Commissioner on receipt of any document or material object and the application presented before him, subject to the final orders of the Court and produce such document, material object and the application in Court the next day with a report and the Court shall pass such orders in the matter as it deems just.

Order 26 Rule 16 of C.P.C deals with the powers of the Commissioners. It is provided that any Commissioner appointed under this Order, unless otherwise directed by the order of appointment, can do matters dealt in Rule 16(a), (b) and (c). As per Rule 16(b), the commission may call for and examine documents and other things relevant to the subject of inquiry and as per Rule 157 of the Civil Rules of Practice, Kerala, commissioner could receive document, material object and application and produce the same in Court, on the next day and the said receipt is subject to the final orders of the Court.

On scrutiny of the various provisions, none of the provisions specifically authorise a Commissioner to inspect and note out all matters demanded by the parties and to prepare mahazar and to file report in respect of those matters, without the direction or permission of the Court, though the Commissioner can as per Rule 16(b), call for and examine documents and other things relevant to the subject of inquiry and as per Rule 157 of the Civil Rules of Practice, Kerala, commissioner could receive document, material object and application and produce the same in Court, on the next day and the said receipt is subject to the final orders of the Court.

Thus the practice of giving work memo to the Commissioner without informing the Court for getting things noted or located by the Commissioner in the form of mahazar and report without the permission and direction of the Court, cannot have any legal sanction and the said procedure is illegal. Therefore, if any party to the lis wants anything to be inspected by the Commissioner, the parties have to file petitions narrating the details to be inspected by the Commissioner. Similarly, if the other side wants to inspect anything by the Commissioner at his junction, he can file objection/counter affidavit or a memo before the Court to direct those matters also to be ascertained by the Commissioner. While considering the petitions, objection/counter affidavit or memo as stated, the Court shall pass orders directing the Commissioner to locally inspect and prepare mahazar and report things which are necessary for resolving the matter in issue and for this purpose, the parties are bound to pay batta or share batta for the Commissioner as prescribed by the Court. Therefore, filing of work memo directly to the Commissioner without any order of the Court and compelling the Commissioner to get mahazar and report prepared by the Commissioner, that too, without paying or sharing batta for the same, cannot be legally permitted and the Commissioner is not legally bound to prepare mahazar and report acting on the work memo given by the parties directly without an order of the Court. In this connection, a decision of this Court reported in [1969 KLT 449 : 1969 KHC 95], K.P.Narayanan Nambiar & Ors. v. A.Raman Chettiar & Ors. requires reference. In this decision, this Court dealt with a case, where, the Commissioner deputed for local inspection, who was not authorized to ascertain the identity and status of persons in possession of plots around the suit property and it was held that nothing on record shows that the commissioner deputed in this suit was directed to ascertain the identity and status of persons in possession of plots around the suit property. Commissions are normally issued only to make a local inspection of the suit property. Any act of a commissioner beyond scope of his deputation is ultra vires and therefore of no significance in law.

Now, the question is whether the plaintiff succeeded in establishing the title and possession over 34.93 cents of property found by the commissioner within the red enclosed boundaries as per Ext.C3 (a) plan or else any portion of the said property, particularly the property identified as one separated by a trench in resurvey No.475/2 is the property not covered by plaintiff’s title deed and one covered by B1 patta. In this connection, a perusal of Exts.A1, A2 and A3 documents are necessary. As per Ext.A2, as I have already pointed out, the property shown therein is in survey No.225 A/7 part and the plaint schedule property is also in the same survey number, now in resurvey No.475. Whereas, Ext.B1 patta would go to show that the defendants’ 30 cents of property is not in 225A/7 part, but, specifically in 225A/5 part. It is true that as per Ext.A4, tax payment in respect of the defendants could be seen in respect of resurvey No.475/2. A pertinent aspect to be bear in mind while allaying the rival plea between the parties, which is the property obtained by the defendants as well as the property claimed by the plaintiff. As I have already pointed out, Ext.B1 would go to show that 30 cents of property in old survey No.225A/5 part is within the well defined boundaries, viz; pond on the east, Appukuttan’s Nilam on the south, the house of Karthiyaniamma on the west and north. The type of property is stated as ‘Veetuvalappu’. The above boundary description would go to show that 30 cents of property obtained by the defendants is a compact plot lying contiguously without any segmentation or segregation.

Coming to the averments in another suit, viz. O.S.605/2004, filed by the defendants as plaintiffs, arraying the plaintiff also as one among the defendants, the case put up by the defendants is that, they obtained 30 cents of property as per Ext.B1 patta and the said suit was filed when the plaintiffs therein apprehended trespass upon the said property. In page No.5 of Ext.A4, the property covered by Ext.B1 has been described in tune with Ext.B1, and it has been specifically stated therein that the property is comprised in survey No.225A/5. The re-survey number of the same is described as 474/8. So, Ext.A4 would go to show that the property covered by Ext.B1 having an extent of 30 cents is the property comprised in old survey No.225A/5 part and in resurvey No.474/8 described as ‘Veetuvalappu’ property.

Coming to Ext.A2, the nature of the property is described as ‘Kulathil eppozhulla bagam’. So, on a careful reading of ExtA1, it is clear that the property covered by Ext.B1 is a garden land described as ‘Veetuvalappu’ and the property covered by Ext.A2 is pond without any garden land. Though it is submitted by the learned counsel for the defendants that as per the first minimised plan in Ext.C3(a), the pond is on the middle of 475/4, the same is not a reason to disbelieve the description made in the title deed of 1981, since by the time there might have been reclamation.

At the time of filing the suit, the Commissioner, who authored Ext.C3 was deputed and he had filed an interim report and the same is Ext.C1. In Ext.C1 it has been stated that the plaint schedule property is a paramba having 33 cents of land within the boundaries. It has been narrated therein that there is a basement foundation constructed on all three sides of property except on the northern side. At the time of his visit on 12.3.2007 at about 2.30 p.m., the commissioner reported that about 2.5 cents of land on the western side of the plaint schedule property was seen to be newly fenced and inside the fence, he had seen one big and 3 small haystack and there also one fenced gate to the above said 2.5 cents of fenced land. Relying on this report, it has been submitted by the learned counsel for the plaintiff that the said fence was newly put up by the defendants with an intention to grab the property of the plaintiff.

As per Ext.C3 (a) plan, the surveyor located the properties in re-survey No.475/4 and 475/2 within the red enclosed boundaries having an extent of 34.93 cents. At the same time, the commissioner located 3.93 cents in resurvey No.475/2 inside the red enclosed plot, where the Commissioner noticed the fence at the time of his first inspection as newly constructed.

The learned counsel for the defendants submitted that if at all the property identified by the commissioner in Ext.C3(a) located in resurvey No.475/4 and 475/2 is the property of the plaintiffs, it has come out in evidence that the defendants are in possession of the property in resurvey No.475/2 and therefore the present suit filed by the plaintiff without a prayer for recovery of possession is bad in law. Therefore, the decree and judgment under challenge would require interference, is the submission of the learned counsel for the defendants.

Dispelling his arguments, the learned counsel for the plaintiff submitted that, the entire property is lying as contiguous plot within the red enclosed boundaries as plotted in Ext.C3 plan and the same is barren land. It is submitted that taking advantage of the absence of the plaintiffs at the sight, the defendants put up the fence and made attempt to trespass upon the property in resurvey No.475/2 and the attempted trespass could not constitute possession of the property by the defendants.

The learned counsel for the defendants also relied on the evidence of PW1, to assert the point that the evidence of PW1 is in support of the case of the defendants that the defendants are in possession of the property. The silence of PW1 when it was suggested that the property in resurvey No.475/2 is the property in possession of the defendants, no answer was given by the plaintiff, also was given much emphasis.

During the cross examination of PW1 also stated that, there was no fence when he purchased the property and all four sides of the plaint schedule property were existed ‘medu paramb’. He had denied the suggestion as to the existence of fence and added that the fence was put up one year before. But, he did not have a case that the fence was constructed and thereby the property was encroached upon by the defendants.

Therefore, the silence on the part of PW1, when suggestion as to possession by the defendants, to be read in isolation giving emphasis to the evidence given by PW1 asserting title and possession over the red enclosed plot in Ext.C3.

Most importantly, there is no likelihood of any property covered by Ext.B1 nearby the property of the plaintiff, since the survey numbers as well as resurvey numbers of both properties are entirely different and the nature and description of boundaries are also at variance; as I have already pointed out herein above.

Coming to the substantial question of law, it is held that on an evaluation of the evidence, by applying the rule of law viz, preponderance of probabilities and possibilities, the case put up by the plaintiff is more probable than that of the defendants and, therefore, it could not be held that the courts below went wrong in decreeing the suit. In fact, the case of the plaintiff is more probable and the existence of the property in the red enclosed boundaries as shown in plot No.3 would go to show that the entire properties lying as compact contiguous plot within the well defined boundaries. Though there is newly put up fence in some portion, as reported by the commissioner and as deposed by PW1, the same is of no consequence.

As far as question No.2 is concerned, it is well settled law that, when properties are found within the well defined boundaries in excess of what has been described in the title deed, boundaries would prevail over the extent and in such view of the matter, the property found by the commissioner in resurvey No.475/4 and 475/2 within the red enclosed boundaries, to be held as the property of the plaintiff, where the plaintiff has title on the basis of A1 and A3 and he has been in possession of the same.

Holding so, the verdict rendered by the trial court and confirmed by the appellate court does not require any interference by this Court and, therefore, the appeal must fail.

In the result, the appeal stands dismissed. Considering the nature of the case, both the parties shall suffer their respective costs.

All interlocutory orders stand vacated and all interlocutory applications pending in the Second Appeal stand dismissed.

Registry is directed to forward copy of this judgment to all subordinate civil courts of the State for information and compliance, while appointing Commission for local inspection, without fail.

Registry shall also communicate the copy of this judgment to the District Bar Associations in 14 districts with request to forward the same to mofussil Bar Associations for information and future implementation, while executing commission for local inspection.