Parayanthodi Abdul Azeez @ Azeez vs Parayanthodi Kunhayisha

A. Badharudeen, J

These regular second appeals have been filed under Section 100 r/w Order XLII of the Civil Procedure Code (hereinafter referred to as 'CPC' for short).

RSA No.64/2022 is at the instance of the original 5th defendant in O.S.No.105/2006 on the files of the Sub Court, Manjeri and the 3rd respondent in final decree application (hereinafter referred to as 'FDIA', for short) No.941/2016. The respondents herein are the plaintiff and other defendants/respondents. In this appeal, the appellant assails common order in I.A.No.816/2018 in FDIA No.941/2016 and FDIA No.941/2016 in OS No.105/2006 and also the appellate decree and judgment in AS No.32/2019.

RSA  No.679/2021  is  at  the  instance  of  the  4th defendant in the above Suit and he also assails common order in I.A.No.816/2018 in FDIA No.941/2016 and FDIA No.941/2016 in OS No.105/2006 and also the appellate decree and judgment in AS No.31/2019 arose therefrom.

Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents in these appeals.

The brief facts are as follows:

In this case, as per the preliminary decree was passed in O.S.No.105/2006 dated 08.04.2009, the learned munsiff declared the rights of the parties. Thereafter, final decree application, viz., FDIA No.941/2016 was filed and final decree also was passed and engrossed in stamp papers during the pendency of RSA 1238/2015 before this Court, challenging the preliminary decree as well as the appellate decree in AS No.25/2013 on the files of the District Court, Manjeri. While considering RSA 1238/2015, this Court passed decree and judgment, after re-allotting the shares in accordance with Mohammedan law of Inheritance. The judgment in RSA 1238/2015 dated 10.12.2015 would go to show that, by consent of the plaintiff, re-allotted the shares in accordance with Mohammedan law of inheritance and virtually, the final decree passed and engrossed in the stamp paper stands effaced, which led to consideration of FDIA No.941/2016 again.

While proceeding with the final decree, the learned Sub Judge appointed Commissioner and Surveyor to locate the plaint schedule items. Accordingly, the Commissioner and Surveyor filed Exts.C1, C1(a), C1(b) and C1(c). Soon after filing of Ext.C1 series, the 5th defendant / 3rd respondent (appellant in RSA 64/2022) filed I.A.No.816/2018, objecting the commission of Ext.C1 series and thereby prayed for setting aside the same with direction to the Commissioner to get a fresh plan. Raising somewhat similar contentions, the 4th defendant/2nd respondent (the appellant in RSA No.679/2021) also filed objection.

The learned Sub Judge considered FDIA No.941/2016 along with IA No.816/2018 and the objection filed by the 3rd defendant and thereafter passed final decree, dismissing I.A.No.816/2018 as not maintainable. Accordingly, it was held by the trial court as under:

“In the result, final decree is passed as follows:

Plot No.23 in plan No.I in Ext.C1(a) plan shall be allotted to the share of plaintiff;

Plot Nos.21, 8, 9, 19, 20, 7, 14, 15, 16, 17, 18, 13, 10, 11, 24 in plan No.I in Ext.C1(a) plan shall be kept as a residuary plot since the defendants hadn't paid court fee for separate allotment;

Plot No.5 in plan No.II in Ext.C1(b) plan shall be allotted to the share of plaintiff;

Plot Nos.1, 10, 2, 11, 18, 17, 3, 16, 15, 14, 13, 12, 8, 7, 6, 4 in plan No.II in Ext.C1(b) plan shall be kept as a residuary plot since the defendants hadn't paid court fee for separate allotment'

Plot No.16 in plan No.III in Ext.C1(c) plan shall be allotted to the share of plaintiff'

Plot Nos.5, 7, 8, 4,17,1,13,12,11,14,15,6,2,3,10 in plan No.III in Ext.C1(c) plan shall be kept as a residuary plot since the defendants hadn't paid court fee for separate allotment;

Plot No.1 in plan No.I in Ext.C1(a) plan, the proposed road shall be kept in common;

Towards equalisation of shares for the properties covered in plan No.I and II, defendant No.3 shall pay Rs.156/-, defendant No.4 shall pay Rs.193/-, defendant No.6 shall pay Rs.328/-, defendant No.11 shall pay Rs.84/-, defendant No.12 shall pay Rs.23/-to plaintiff and defendant No.2 shall pay Rs.84/-, defendant No.8 shall pay Rs.59/-, defendant No.9 shall pay Rs.84/-, defendant No.10 shallpay Rs.84/-, defendant No.13 shall pay Rs.88/-, defendant No.14 shall pay Rs.120/-, defendant No.15 shall pay Rs.412/- to defendant No.2;

Towards equalisation of shares for the properties covered in plan No.III, defendant No.5 shall pay Rs.2,03,978/- to plaintiff, Rs.52,714/- to defendant No.1, Rs.27468/- to defendant No.2, Rs.27,468/- to defendant No.3, Rs.54,437/- to defendant No.4, Rs.1,40,095/- to defendant No.6, Rs.4,798/- to defendant No.7, Rs.4,798/- to defendant No.8, Rs.24,996/- to defendant No.9, Rs.24,996/- to defendant No.10, Rs.24996/- to defendant No.11, Rs.50,782/- to defendant No.12, Rs.1,19,461/- to defendant No.13, Rs.1,19,461/- to defendant No.14, Rs.2,04,004/- to defendant No.15;

For equalisation of share of C schedule item No.1 which is mentioned in plan No.I defendant No.15 shall pay Rs.552/- to the plaintiff;

The plaintiff is entitled to get his proportionate share of Rs.39,579/- per year as mesne profits from defendants from the date of suit till getting separate share or for three years from the date of passing final decree whichever event happens earlier;

There shall be a charge over the property set apart to the share of defendants for the above said amounts.

Ext.C1(a) to (c) shall form part of the final decree; and

Produce value of Non Judicial stamp paper

IA 816/2018 is dismissed without cost.”

On appeal, the learned Additional District Judge-II, Manjeri, dismissed the appeal and concurred with the finding of the trial court. Challenging the concurrent verdicts in FDIA No.941/2016, these appeals have been filed.

After hearing both sides, my predecessor admitted the appeal after formulating the following substantial question of law as per order dated 27.07.2023.

“On admission of CW1 that the properties covered under Exhibhits B6 and B7, which have been excluded from partition under the preliminary decree, have not been separately marked and identified in the Commissioner's plan, and when the plan prepared in respect of such excluded property is at variance from the identification made by the Commissioner in the earlier final decree proceedings, the identity of which was not under challenge, were the Court right in having accepted the Commissioner's report and plan and passed final decree in terms thereof?”

Coming to the question of law framed by this Court, the same is confined to the dispute with regard to the properties covered by Exts.B6 and B7 in the preliminary decree, which was ordered to be excluded from the purview of partition, as per the preliminary decree. The main challenge raised against Ext.C1 series and C1(a) in particular is that the Commissioner did not specifically locate the properties covered by Exts.B6 and B7, after identifying the same as per the title deeds.

The deposition of the Commissioner has been read out in extenso to convince that Ext.C1 series report and plan were not prepared after identifying the properties properly.

Per contra, the learned counsel for the contesting respondent submitted that the properties were identified as per the present boundaries since the boundaries shown in the title deed were not available due to change in the geographical nature of the properties, including flood and flow of river adjoining the properties. Further, it is submitted that the trial court and the appellate court correctly appreciated this aspect and overruled the objection raised by the appellants as against Ext.C1 series. Therefore, the final decree under challenge does not require any interference, as the properties covered by Exts.B6 and B7 were excluded from partition, in terms of the preliminary decree.

On perusal of Ext.C1(a), plot No.3 is shown as property covered by Ext.B7, having an extent of 1.8860 Hectare (466 cents). Similarly, plot Nos.4 and 6 are shown as properties covered by Ext.B6, having an extent of 0.6930 Hectare (171.24 cents) and 0.4280 Hectare (105.76 cents). But the appellants disputed the said location on the ground that though the properties were located as plot Nos.3, 4, and 6, they were not properly identified and the evidence of CW1 would substantiate the same. Before analysing the evidence of CW1, a perusal of the report accompanied to the plan, marked as Ext.C1, is necessary. In Ext.C1 plan, the Commissioner stated that “some of the properties are exempted from partition i.e., Exhibit A5 = 0.4047H. (1 acre) plan I plot=2, Exhibit B7=1.8860H (4 acre 66 cent) plan I plot = 3 Exhibit B6 = 1.1210 H (2 Acre 77 cent) plan I plot 4, 6 plaint 'C' schedule item No.1, 2=2.8288 Hectare = 6 Acre 99 cents. Plan I plot 22,25. The properties available for petition in 'A' schedule 1 to 47.47.45 H minus 6.2405 H = 1.2340 Hectre. (18 Acre 46.9 cent minus 15 Acre 42 cent) balance come to 3 Acre and 4.92 cents”.

Before analysing the evidence of the Commissioner, it is necessary to look into the evidence given by the Surveyor, who was examined as CW2. The Surveyor given evidence that Exts.C1, C1(a), C1(b) and C1(c) are the plans he prepared while assisting the Commissioner. During cross-examination, respondent No.3 alone cross-examined the Surveyor. Respondent No.3 in the final decree application is ‘Kunhali’, who is the appellant in RSA 64/2022. The learned counsel for the 3rd respondent/appellant, in fact, not seriously cross-examined the Surveyor in any manner and the cross-examination is confined to the matter of identification of property based on natural boundary in the absence of physical boundary as per the schedule. The Surveyor also given evidence that in Sy.No.980/1, 3000 acres of property is situated. Further, he deposed that in unsurvey No.1380/part, the property would come to 5,000 to 6,000 acres and the property could be identified only by natural boundaries and based on possession. As such, the identification of the properties as per Ext.C1 series is properly done. It is interesting to note that the Surveyor, who, in fact, authored the plans, in no way seriously cross-examined, pointing out the anomalies in the plans in any manner and the learned counsel for the appellant in RSA No.679/2021 not even cross-examined the Surveyor and as such the evidence of the Surveyor except the formal challenge raised by the 3rd respondent remains in tact.

Coming to the evidence of the Commissioner, at the outset itself, it could be gathered that when he was examined from the side of the appellants, he stated that he could not found physical boundary in the property. He also stated that in Survey No.980/1, the property would come to 3,000 acres of land and in unsurveyed land, the same would come between 4,000 to 5,000 acres. As per the preliminary decree, properties excluded by Exts.B6 and B7 were directed to be partitioned and he did not locate Exts.B6 and B7 properties in the plan. Noticing the said evidence of the Commissioner as not trustworthy, the Court put a question to clarify as to whether Exts.B6 and B7 properties were shown in the plan?. Then the Commissioner answered that plot Nos.2, 3, 4, 5 and 6 in Ext.C1(a) plan are the the properties covered by Exts.B6 and B7. Then he deposed about the boundaries of Exts.B6 to B7. Thus, it appears that the Commissioner, in fact, given evidence while cross-examining him by the learned counsel for the appellants stating that Exts.B6 and B7 properties were not shown in Ext.C1(a) plan and when the court interfered, he had given evidence that properties covered by Exts.B6 and B7 were located by the Surveyor and the same are plot Nos.2, 3, 4, 5 and 6. It is interesting to note that the Commissioner, as per the report, categorically reported that some of the properties are exempted from partition i.e., Exhibit A5 = 0.4047H. (1 acre) plan I plot=2, Exhibit B7=1.8860H (4 acre 66 cent) plan I plot = 3 Exhibit B6 = 1.1210 H (2 Acre 77 cent) plan I plot 4, 6 plaint 'C' schedule item No.1, 2=2.8288 Hectare = 6 Acre 99 cents. Plan I plot 22,25. The properties available for petition in 'A' schedule 1 to 47.47.45 H minus 6.2405 H = 1.2340 Hectre. (18 Acre 46.9 cent minus 15 Acre 42 cent) balance come to 3 Acre and 4.92 cents. On perusal of Ext.C1(a) plan, it is crystal clear that Exts.B6 and B7 plots were specifically identified and the identification is based on the available materials as deposed by CW2 Surveyor. In fact, the evidence of CW1 is given much emphasis by the appellants herein to disbelieve the plan mainly on the ground that Exts.B6 and B7 properties were not identified and located in Ext.C1(a) plan. This appeal got admitted to decide the said question of law alone. In this case, the courts below concurrently found that Ext.C1 series are sufficient to identify the properties that form part of 5000 - 6000 acres of land. Therefore, I am inclined to consider only the substantial question of law formulated in these appeals appreciating the materials available. First of all, it is observed that the evidence of CW2 is fully in support of Ext.C1 series and the same not shaken in any manner. But CW1 given evidence in deviation from his own report and plan by saying that he did not locate Exts.B6 and B7 properties at the first instance. Later he was forced to correct the said version when the court interfered and supported Ext.C1 series. In the said circumstances, the evidence of CW2, which was not shaken in cross-examination, would go to show that Ext.C1 series were prepared as per the available boundaries locating the decree schedule properties form part of survey number, where 5000-6000 acres of properties in the same survey number actually lie.

The learned counsel for the appellants attempted to point out anomalies in between Ext.C1 series from that of the earlier plan prepared for the purpose of granting final decree. It is true that earlier, another plan was prepared and a final decree was passed. Later, in view of the re-allotment of shares, the said plan was given a go bye and the present plans were obtained. It is to be noted that the earlier plan is given emphasis by the learned counsel for the appellants to find anomalies in Ext.C1(a) plan. In fact, the said exercise should have been done by cross-examining the commissioner and the surveyor, who authored those plans and the appellants miserably failed to do the said exercise before the trial court. Therefore, this Court is not in a position to go for a comparison of the two plans, without the aid of the evidence of commissioner and surveyor in this regard, which should have been adduced before the trial court.

In view of the matter, it is held that the substantial question of law to the effect that Exts.B6 and B7 properties not separately marked and identified by the Commissioner is answered in the negative, holding that the same were specifically pointed out in Ext.C1(a) plan. On perusal of the judgment of the appellate court, it could be gathered that the learned District Judge dealt with each and every objection in the Commission report in detail in paragraph Nos.12 to 21 and found that Ext.C1 series were prepared properly to identify the properties. The said finding appears to be fully justified.

In view of the matter, both appeals must fail and are accordingly dismissed.

All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court forthwith.