IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH FEBRUARY 2011 / 27TH MAGHA 1932 SA.No. 208 of 1997() -------------------- AS.119/1994 of II ADDL.SUB COURT,ERNAKULAM OS.1340/1992 of I ADDL.MUNSIFF'S COURT, ERNAKULAM .................... APPELLANT(S): RESPONDENTS IN AS.119/1994 OF THE SUB COURT, ERNAKULAM/DEFENDANTS IN OS.1340/1992 OF THE MUNSIFF'S COURT, ERNAKULAM. ---------------------------------------------------------------------------- 1. SELESTIN, SON OF VARGHESE ALIAS VAKKAMMA, AGED 29, KUNNAPPILLY HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK. 2. VARGHESE ALIAS VAKKAMMA, SON OF OUSO, AGED 71, KUNNAPPILLY HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANUR TALUK. BY ADV. SRI.K.C.CHARLES RESPONDENT(S): APPELLANT IN AS.119/1994 OF THE SUB CURT, ERNAKULAM/PLAINTIFFS IN O.S.1340/1992 OF THE MUNSIFF'S COURT, ERNAKULAM. ------------------------------------------------------------------------------- 1. JOSE, SON OF LATE ANTHAPPAN, AGED 45, NADUVILE MANAKKAL HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK. 2. GEORGE, SON OF LATE ANTHAPPAN, AGED 42, NADUVILE MANAKKAL HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK. 3. MATHEW, SON OF LATE ANTHAPPAN, AGED 37, NADUVILE MANAKKAL HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK. Kss ..2/- ..2.... SA.NO.208/1997 *4. MARY, WIFE OF LATE ANTHAPPAN, AGED 72, NADUVILE MANAKKAL HOUSE, CHITTOOR DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK. ( D I E D) - LR'S IMPLEADED: *ADDL.R5 TO R8 IMPLEADED: R5. PHILOMINA AUGUSTINE, D/O. LATE ANTHAPPAN AND W/O. AUGUSTINE, AGED ABOUT 58, RESIDING AT KATTIPARAMBIL HOUSE, MOOLAMKUZHI, ERNAKULAM, KOCHI. R6. BABY ANTONY, D/O.LATE ANTHAPPAN AND W/O. ANTONY, AGED ABOUT 56, RESIDING AT VELIKKAKATH HOUSE, VADUTHALA, ERNAKULAM, KOCHI - 23. R7. CHINNA THOMAS, D/O. LATE ANTHAPPAN AND W/O. ANTONY, AGED ABOUT 50, RESIDING AT KUNNATH HOUSE, KATTUNGAL, PACHALAM, ERNAKULAM, KOCHI - 23. R8. REETHA MICHAEL, D/O. LATE ANTHAPPAN AND W/O. MICHAEL, AGED ABOUT 48, KOLPPURATH HOUSE, VADUTHALA, ERNAKULAM, KOCHI - 23. *THE LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 5 TO 8 AS PER ORDER DTD. 29/05/2007 IN I.A.1879/06. R1 TO R3 BY ADV. SRI.M.C.CHERIAN, SMT.ASHA CHERIAN ADDL.R5 TO R8 BY ADVS. SRI.M.C.CHERIAN SRI.M.A.THOMAS KUTTY, SMT.SARAMMA CHERIAN, SMT.ASHA CHERIAN, SRI.P.M.SANEER. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.584/1997 IN SA.NO.208/1997 DISMISSED 16/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss P.BHAVADASAN, J. ------------------------------------- SA No.208 of 1997-G ------------------------------------- Dated this the 16th day of February 2011 Judgment A very curious situation has arisen in this appeal, which compels this court to set aside the judgment and decree of the lower courts and remand the matter to the trial court for fresh consideration in accordance with law. 2. The plaintiffs sued for laying the north western boundary of their property, pointing out that the defendants have trespassed into the property owned and possessed by them. 3. The defendants resisted the suit and pointed out that on the eastern and southern sides of the building, they have vacant portions of land and without ascertaining the property owned by the plaintiffs and defendants with reference to the documents of title, the boundary cannot be laid. On the above grounds, they prayed for dismissal of SA 208/97 2 the suit. 4. On the basis of the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and document marked as Ext.A1 from the side of the plaintiffs. The defendants did not adduce any evidence. Exts.C1 and C1 (a) commissioner's report and plan were also produced. 5. The trial court on an evaluation of the materials before it, found that the suit is barred by Order II Rule 2 CPC and res judicata. It was also found that without properly measuring the properties of the parties, a decree cannot be granted. Accordingly, the suit was dismissed. 6. The plaintiffs carried the matter in appeal as AS No.119/94 before the Sub Court, Ernakulam. The lower appellate court strangely enough, deputed the commissioner who had prepared Exts.C1 and C1(a), directing him to measure one foot of land on the southern side and five feet of land on the eastern side and to submit a report before the court. The direction was on the basis SA 208/97 3 that the defendants, in their written statement, had contended that they had that much extent of properties on the other side of the building. Obediently, the commissioner did what was directed and a decree followed. It is the said judgment and decree that are assailed in this second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether or not the lower appellate court is justified in reversing the finding of the trial court that the suit is barred by Order II Rule 2 CPC and res judicata ? 2.Whether the lower appellate court is justified in allowing the plaintiffs to adduce evidence in the appellate court without satisfying the provisions of Order XLI Rule 27 CPC ? 3.Has not the lower appellate court erred in issuing a commission in the appellate stage without adverting to the first commissioner's report ? 4.Is the lower appellate court justified in issuing a SA 208/97 4 commission for fixation of boundary to an Advocate commissioner who has no qualification to survey land and is the lower appellate court justified in fixing the boundary of plaint A schedule property on the basis of Exts.C2 and C2(a) ? 5.Whether in the facts and circumstances of the case, the north western boundary of A schedule property can be fixed on the basis of Exts.C2 and C2(a) ? 6.Whether the lower appellate court is justified in relying upon Exts.C2 and C2(a) without affording an opportunity to the parties concerned to point out the infirmities attached thereto ? 7.Whether the lower appellate court is justified in fixing the boundary of A schedule property without proof of plaintiffs' title and possession and also that of the actual extent of the property held by the plaintiffs ? 8. The learned counsel for the appellants pointed out that it is to be noticed that the plaintiffs have not produced the documents of title and the properties of SA 208/97 5 the respective parties have not been identified with reference to the respective title deeds. The suit being one for laying of boundary, it was essential that the property actually owned and possessed by each of the parties had to be ascertained with reference to the documents of title. So, the approach of the lower appellate court, according to the learned counsel, cannot be justified in law. The learned counsel also referred to the documents of title of the plaintiffs by which the predecessor-in-interest of the defendants had assigned 6.5 cents of land to the plaintiffs. In the written statement, they have extracted the relevant portion of the document. These vital aspects have not been noticed by the lower appellate court and therefore, according to the learned counsel, the judgment and decree of the lower appellate court are clearly unsustainable in law. 9. Per contra, the learned counsel for the respondents pointed out that the defendants had no objection to Exts.C1 and C1(a) report and plan submitted SA 208/97 6 by the commissioner before the trial court. Drawing attention to the written statement, it was pointed out that it was the contention of the defendants that beyond the building, on the southern side, they have one foot of land and on the eastern side, they have five feet of land. It was under such circumstances that the lower appellate court had directed the commissioner to measure out the respective extents of properties, prepare a plan and submit a report before court. That was done by the commissioner and therefore, the decree is justifiable. 10. For reasons more than one, this court is unable to agree with the contention raised by the learned counsel for the respondents. The suit was one for fixation of boundaries. It is understood that the plaintiffs laid claim to 14.5 cents of property, 8 cents obtained as kudikidappu and 6.5 cents by way of assignment from the predecessor- in-interest of the defendant. Strangely enough, those documents are not produced. The defendants, in their written statement, had contended that the 6.5 cents of land SA 208/97 7 assigned to the plaintiffs by the predecessor-in-interest of the defendants was after retaining two cents on the north western portion wherein the building is now situated. The learned counsel for the appellant is quite justified in his submission that unless the said two cents are identified, the boundary cannot be fixed. It is also strange to note that without perusing the documents of title, the properties have been identified by the commissioner. The contention that since the defendants had stated in their written statement that they owned and possessed one foot of land on the southern side and five feet of land on the eastern side, simply by measuring that extent of land, a decree could be granted to the rest of the property, is quite unacceptable. It is trite that in a suit for laying of boundaries, the properties will have to be identified and ascertained with reference to the documents of title and thereafter, the boundary will have to be fixed. This has not been done. The approach adopted by the lower appellate court in this regard is erroneous in law and cannot be SA 208/97 8 justified. In the result, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and the matter is remanded to the trial court for fresh consideration of the matter after obtaining proper report and sketch from the commissioner with reference to the respective documents of title of the properties. The parties shall appear before the trial court on 30.03.2011. The trial court shall make every endeavour to dispose of the matter as expeditiously as possible, at any rate, within nine months from the date of receipt of a copy of this judgment. P.Bhavadasan, Judge sta SA 208/97 9