IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 SA.No. 486 of 1995(G) ------------------------------- (O.S.No.222/1984 OF MUNSIFF COURT, WADAKKANCHERY A.S.No.45/1991 OF DISTRICT COURT, THRISSUR) ............................. APPELLANT(S):APPELLANTS:PLAINTIFFS: ----------------------------------------------------------- 1. SANKARAN, S/O.KONKADATH KITTUNNI, EDAKKAZHIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. RUGMINI, W/O.SANKARAN, CHITTANDA VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT, NOW RESIDING AT EDAKKAZHIYOOR AMSOM AND DESOM, CHAVAKKAD TALUK. BY ADV. SMT.PREETHY KARUNAKARAN. SRI.R.RAJESH KORMATH SMT.MEENA A. SMT.MINI M.R. RESPONDENT(S): RESPONDENTS:DEFENDANTS: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRSENTED BY THE DISTRICT COLLECTOR, THRISSUR. 2. THE FOREST RANGE OFFICER, WADAKKANCHERRY, ENGAKKAD, THALAPPILLY TALUK, THRISSUR DISTRICT. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 1/07/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH, J. ------------------------------------------------------ S.A.No.486 of 1995-G. ---------------------------------------------- Dated, this the Ist day of July, 2009 J U D G M E N T Appellants are the plaintiffs. They instituted suit for recovery of possession and mandatory injunction against the respondents. The suit stands dismissed concurrently by the trial court as well as by the first appellate court. 2. The case of the appellants in brief was as follows:--The plaint schedule Item No.1 belonged to the first appellant and Item No.2 belong to the second appellant. Both the items lies contiguous and they are in joint possession. The property situated on the south and west of plaint schedule Item No.1 and south of Item No.2 are part of reserve forest lands situated in Sy.No.33 of Pilakode village. There are well defined boundaries and boundary stones to separate the plaint schedule from the reserve forest land. It is stated that on 24.4.1984 the 2nd respondent forest officials came to the properties and put up jandas and thus trespassed into the plaint schedule property. Section 80 notice was issued. The S.A.No.486/1995 -2- Ist defendant issued a reply stating that the notice is forwarded to the Divisional Forest Officer for necessary action. It is stated that thereafter nothing materialised and hence the suit was filed. 3. Defendants filed written statement contending inter alia that they have not attempted to trespass into any portion of the plaint schedule property and had not put up jandas annexing plaint schedule property. 4. After framing the issues the trial court found that the appellants have not succeeded in proving trespass and dismissed the suit. The first appellate court has confirmed the said finding of the trial court. 5. I heard Sri.Sreekumar Chelur, learned counsel appearing for the appellants and Sri.M.P.Prakash, learned Government Pleader. 6. Learned counsel for the appellants would point out that this is a case where the Advocate Commissioner had filed a plan and report to which the appellants filed their detailed objection. The report was set aside and the property was directed to be identified afresh on the basis of the title S.A.No.486/1995 -3- deeds by order dated 10.7.1989. Thereafter Ext.C1 and C1(a) report and measurement plan were filed. Ext.C1 (b) is the report of the Taluk Surveyor appended to the commission report. No doubt, the commissioner has again reported that he was not in a position to find any trespass. The appellants filed detailed objection to the report attacking the correctness and basis of measurement. The Advocate Commissioner was examined as Pw2 and the Taluk Surveyor was examined as Pw3. 7. Learned counsel for the appellants would contend that this is a case where a perusal of the report of the commissioner and also the surveyor would show that the direction in the order of the court dated 10.7.1989 is violated in the preparation of Ext.C1 , C1(a) and C1(b). 8. In the order dated 10.7.1989 the learned trial Judge directed the properties to be identified afresh on the basis of the title deeds as well as with reference to the village records. In doing so in the course of the proceedings the court observed that the commissioner had not properly identified the property and located the boundary in relation to S.A.No.486/1995 -4- the title deeds earlier. The earlier report had been based on the measurement of the village sketch alone. It is pursuant to the said order that Ext.C1, C1(a) and C1(b) were submitted. Learned counsel for the appellants would submit that the report is not prepared with reference to the title deeds. He also took me through the report of the commissioner and also the report of the surveyor. He would point out certain contradictions. In particular, he would point out that while the commissioner would state that there is land in between jandas and the boundary, the surveyor states that there is no such land. He would submit that either the report of the commissioner or the report of the surveyor could be correct. It is a case where the commissioner has prepared the report allegedly with the assistance of the surveyor, and he points out that going by the report of the commissioner he has visited the properties on three days and however the actual survey allegedly took place on one day and for merely two hours. He would further contend that this is a case where ascertainment of the basic boundary line with reference to the village boundary of two villages were called for but admittedly S.A.No.486/1995 -5- the commissioner and the surveyor have not fixed the village boundary line of Pilakode village. Per contra, learned Government Pleader for the Forest Sri.M.P.Prakash would submit that absolutely no case has been made out for interference under Section 100 C.P.C. He invited my attention to the recent ruling of the Apex Court in Narayanan Rajendran and another vs. Lekshmy Sarojini and others { ILR 2009 (2) Ker. 269}. Therein the Apex Court has after exhaustive survey of case law on the point reiterated the need for the court exercising power under Section 100 C.P.C. to formulate substantial questions of law and to interfere only in cases where substantial question of law arises. He would urge that no substantial question of law arises in this case and what is involved is a pure finding of fact. He further submits that under Order 26 Rule 10 CPC it is for the party to impeach the reliability of the report of the commissioner by examining him and even though in this case the appellants have examined the commissioner and also surveyor they have not brought out anything by which the concurrent findings of the court below could be interfered with. Order 26 Rule 10 CPC provides S.A.No.486/1995 -6- inter alia for power to examine the commissioner with reference to the manner in which the commissioner made the investigation. 9. Admittedly, though the commissioner and the surveyor were examined no attempt is made by the appellants to challenge the report on the score that when the report was prepared it was done without reference to the title deeds as per the direction of the court. On the contrary, in the report there is reference to the operative portion of the order by which the commissioner was directed to prepare the report with reference to the title deeds. I cannot assume without any evidence on this point either from the commissioner or even from the surveyor that they have prepared the report violating the directions of the court to them. The same is the condition with reference to the village records. If that be so, it may not be open to me particularly in exercise of jurisdiction under Section 100 to interfere with the commission report on the ground that the order of the court was violated. In fact, the learned trial Judge has also taken the view that the appellants did not place any materials to discard either the S.A.No.486/1995 -7- report or plan or to pinpoint any defect in the report. The trial court is perfectly justified in finding that the burden to substantiate contention about the commission report is on the party attacking the commission report (namely appellants herein). It is also found that the appellants have not cited the Field Measurement Book or other account so as to substantiate their objections. It may be true that there are some discrepancies. I would think that appellants have on the whole not succeeded in making out a case of any substantial question of law. The appeal fails and it is dismissed. (K.M.JOSEPH) JUDGE. MS