IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 SA.No. 272 of 2000(G) --------------------- OS.188/1990 of I ADDL.MUNSIFF COURT, NEYYATTINKARA AS.844/1994 of SUB COURT, NEYYATTINKARA .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1.JOSEPH DAS (DIED) 2.SANTHA DAS,W/O.JOSEPH DAS, BOTH RESIDING AT 'DAS VILASOM' AVANAKUZHI, VENPAKAL, THANNIMOODU, THIRUVANANTHAPURAM. ADDL.APPELLANTS: 3.KALPANA,MINOR AGED 15 YEARS, D/O.SANTHA DAS, DAS VILASOM, AVANAKUZHI, VENPAKAL, THANNIMOODU, THIRUVANANTHAPURAM. 4.RANA,MINOR AGED 12 YEARS, S/O.LATE JOSEPH DAS, DO. DO. 5.RONY, MINOR AGED 9 YEARS, S/O.LATE JOSEPH DAS, DO. DO. ADDL.APPELLANTS 3 TO 5 WHO ARE REPRESENTED BY THEIR LEGAL GUARDIAN, MOTHER, THE 2ND APPELLANT IN S.A. ARE IMPLEADED AS PER ORDER IN C.M.P.NO.1467/2000 DATED 12.10.2000. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S)/RESPONDENTS/PLAINTIFFS: --------------- 1.NIRMALA JOSEPH, 'BADHANI MANDIRAM' VENPAKAL, THIRUVANANTHAPURAM. 2.DAVID,S/O.HABEL, TAILOR, H/O.NIRMALA JOSEPH, RESIDING AT DO. DO. ADV. SRI.R.S.KALKURA FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.272 OF 2000 ----------------------------------- Dated this the 6th day of October, 2010 J U D G M E N T The defendants in O.S.No.188 of 1990 on the file of the Ist Additional Munsiff Court, Neyyattinkara has filed this appeal. Suit was one for recovery of possession on the basis of title, filed by the respondents/plaintiffs. Pending this appeal, the 1st appellant/1st defendant passed away and his legal representative, the 2nd appellant, his wife was recorded and his children, additional appellants 3 to 5 were impleaded. 2. The 1st plaintiff/1st respondent is the sister of the deceased 1st appellant. On the strength of A1 sale deed, she claimed title over the plaint schedule property having an extent of five cents. That property was trespassed upon and reduced into possession by the defendants and they have constructed a basement therein was the basis for seeking its recovery on the strength of the title. Resisting the suit claim, the defendants S.A.NO.272/2000 2 contended that the plaintiffs have no title over the property and in the alternative, it was claimed that by virtue of the possession in continuation of the predecessor of the 1st defendant with the hostile animus as against the owner, they have prescribed title by adverse possession. On the materials placed, which consisted of PWs.1 to 3 and Exts.A1 and A2 series for the plaintiffs, DWs.1 to DW3 and Exts.B1 to B6 for the defendants and Exts.C1 and C1(a), a report and plan prepared by the advocate commissioner deputed by the court after conducting local inspection over the suit property, the trial court concluded that the plaintiffs have established their title over their property and they are entitled to the recovery applied for. The decree passed by the trial court in favour of the plaintiffs for recovery of the property was challenged by the defendants preferring an appeal. The lower appellate court, after re-appreciation of the evidence, concurring with the finding entered by the trial court, confirmed the decree and dismissed the appeal. 3. I heard the counsel on both sides. The learned counsel for the appellants submitted that there was no identification of S.A.NO.272/2000 3 the suit property and the plan prepared by the Commissioner and produced as C1 (a), at the most, was only a rough sketch and it was not one prepared with the assistance of a qualified surveyor. Since recovery of possession of property is claimed on the strength of title and, further, the materials tendered in the case disclosed that the defendants are having properties adjoining to the property identified as the suit property covered by A1 sale deed, it is the submission of the counsel that non- preparing of a proper plan with the assistance of a surveyor has disastrous consequence and the decree granted by the court below in favour of the plaintiffs without considering the above aspects suffers from serious infirmity. I have gone through the records of the case and also the judgments rendered by the two courts below. The identification of the suit property as made under C1 (a) was improper, it is seen, had been canvassed before the lower appellate court as well, but it was negatived. The crucial question is whether, in the given facts of the case, C1 (a) plan prepared by the commissioner is acceptable and reliable. Title of the plaintiffs, which has been concurrently found in their favour on the basis of A1 title deed and also A2 tax receipts, no S.A.NO.272/2000 4 doubt, has become unimpeachable. Whether there was proper identification of the suit property by the advocate commissioner is the question to be considered to examine whether the decree given for recovery in favour of the plaintiffs on the strength of their title, warrants any interference. In the context, it is seen that the defendants have filed objections to the report and plan. Such objections remained unsubstantiated. No steps were taken by the defendants to examine the advocate commissioner to substantiate the objections raised against the report and plan. Perusing C1 report and C1 (a) plan, I find that the suit property had been identified and particulars of the side measurements with reference to the survey stones were also made. Then the only question is whether the advocate commissioner without the assistance of a surveyor could have prepared such a report. Even assuming that a surveyor is deputed to do the measuring work, it is only to assist the execution of the order of commission issued to the advocate commissioner by the court. In a case where the commissioner is competent to measure out the property, he need not seek the assistance of a surveyor. Where C1 (a) plan clearly identifies the suit property, the objection S.A.NO.272/2000 5 raised that the plan was not prepared with the assistance of a surveyor, but, with nothing brought on record to show the incompetency of the advocate commissioner to measure out the property, has no value or merit at all. Whatever be the objections to the commission report and plan, such objections were not substantiated by examining the commissioner. When that be the case, I find no interference with the decree passed by the courts below in favour of the respondents/plaintiffs arise for consideration on the challenge canvassed, and no question of law leave alone any substantial question of law is involved in the appeal. The appeal is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.272 OF 2000 ----------------------------------- J U D G M E N T 6th day of October, 2010 S.A.NO.272/2000 7