IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 8220 of 2010(O) ------------------------- CMA.87/2007 of II ADDL.DISTRICT COURT, ERNAKULAM OS.288/2007 of II ADDL.MUNSIFF COURT., ERNAKULAM .................... PETITIONER: --------------- P.DILEEP KUMAR, S/O. LATE PADMANABHA MENON, GOKULAM, KARURUTHIL ROAD, UDAYAMPEROOR, NOW RESIDING AT 14/D 3, STAR HOMES, CHATHARI, TRIPUNITHURA. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON RESPONDENTS:: --------------- 1. SMT.SHIBI, W/O. LATE KARTHIKEYAN, RESIDING AT MUKULATH PARAMBIL, EDATHALA, POOKKATTUPADY. 2. MR.RAFEEK, PROPRIETOR, N.B.STORES, POOKKATTUPADY JUNCTION (WIRE ROPE JN.), VIA PERUMBAVOOR, ERNAKULAM DISTRICT. 3. SMT.RADHIKA AJITHKUMAR, AGED 35, W/O. K.B.AJITHKUMAR, AKHIL NIVAS, ETTUTHYKKAL, UDAYAMPEROOR P.O., MANAKUNNAM VILLAGE, PIN-682307. ADV. SRI.N.SUBRAMANIAM FOR R1 TO R3 SRI.M.S.NARAYANAN FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.No.8220 OF 2010 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 : AMENDED PLAINT IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P2 : I.A.NO.2286 OF 2007 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P3 : COMMISSION REPORT DTD.30.07.2007 SUBMITTED BY ADV. FRANCIS M KURIEN IN I.A.NO.2286 OF 2007 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P3(a) : OBJECTION DTD.23.06.07 FILED TO EXHIBIT P3 EXHIBIT P4 : COUNTER AFFIDAVIT FILED BY RESPONDENTS 1 and 2 IN I.A.NO.2286 OF 2007 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P5 : ORDER DTD. 10.07.07 IN I.A.NO.2286 OF 2007 INO.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P6 : JUDGMENT DTD.24.02.2009 IN C.M.A.No.87 OF 2007, OF IIND ADDL.DISTRICT COURT, ERNAKULAM EXHIBIT P7 : MEMO DTD 17.01.09 FILED IN C.M.A.No.87 OF 2007 , IIND ADDL.DISTRICT COURT, ERNAKULAM EXHIBIT P8 : REPORT and SKETCH DTD.16-10-2009 SUBMITTED BY ADV. COMMISSIONER FRANCIS M KURIEN IN I.A.NO.2713 OF 2007 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P9 : I.A.NO.9190 OF 2009 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM EXHIBIT P10 : COUNTER AFFIDAVIT FIELD BY 3rD RESPONDENT IN I.A.NO.9190 OF 2009 EXHIBIT P11 : ORDER DTD.19.01.2010 IN I.A.NO.9190 OF 2009 IN O.S.NO.288 OF 2007 MUNSIFF COURT, ERNAKULAM RESPONDENTS' EXHIBITS: NIL True Copy P.A. To Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.8220 of 2010 --------------------------------------- Dated this 22nd day of June, 2010 JUDGMENT The writ petition is in challenge of Ext.P6, judgment of learned Additional District Judge-I, Ernakulam in C.M.A.No.87 of 2007 confirming dismissal of I.A.No.2286 of 2007 in O.S.No.288 of 2007 of the court of learned Munsiff, Ernakulam. Petitioner filed the suit claiming title and possession of plaint A schedule described as 6.600 cents and claimed to be acquired as per Ext.A1, assignment deed dated 07-08-1997 (Ext.A2 is its prior document). According to the petitioner on the east of plaint A schedule is plaint C schedule belonging to the respondent and on the north, it is the property of Sadan and plaint B schedule which is a pathway leading to the plaint A schedule from Karuruthil road on the further north. Petitioner apprehended trespass into plaint A and B schedule properties. Petitioner also moved I.A.No.2286 of 2007 for an order of temporary injunction on which an ex parte interim order of injunction was issued. Respondents resisted the claim contending that description of plaint A schedule is not correct and that on the north of plaint A schedule is a pathway originating from plaint B schedule and leading to plaint C schedule. According to the respondents, it is including that portion also that plaint A schedule W.P.C.No.8220 OF 2010 : 2 : is scheduled. Learned Munsiff heard I.A.No.2286 of 2007, found that the boundary measurements stated in Exts.A1 and A2 differed and referring to Exts.B5 and B6, sketch and proceeding of the Tahsildar agreed with the contention of respondents regarding existence of the disputed way along the northern side of plaint A schedule and dismissed that application. Petitioner took up the matter before learned Additional District Judge but the order of the trial court was confirmed. Judgment/order referred to above are under challenge in this writ petition. 2. It is contended by learned counsel for petitioner that courts below have not adverted to the report of Advocate Commissioner taken immediately after institution of the suit, no reference has been made to the said report and instead, undue weight has been given to Exts.B5 and B6 prepared by Tahsildar without authority and after institution of the suit. According to learned counsel, courts below erred in relying on Exts.B5 and B6. It is the case of petitioner that after learned Additional District Judge dismissed C.M.A.No.87 of 2007 respondents trespassed into the northern portion of plaint A schedule and formed a new way. Learned counsel contended that based on Exts.A1 and A2 and report and sketch prepared by the advocate commissioner, petitioner is entitled to an order of injunction based on his possession of the suit property as on the date of suit. Learned W.P.C.No.8220 OF 2010 : 3 : counsel for respondents contended that it is not shown that report of the Advocate Commissioner was urged for consideration before the trial court apart from raising a contention in the memorandum of appeal that appellate court had not looked into that report. Learned counsel placed reliance on the decisions in G. Jayalakshmi Vs. Union Bank of India and Another (2006(1) ILR Kerala 316) to support the contention that merely because a ground is urged in the memorandum of appeal it did not mean the court concerned ought to have considered that ground. It is also contended by learned counsel that though it is within the power of court to appoint an Advocate Commissioner ex parte, law mandates that the Commissioner before inspection has to give notice to the opposite party. In case such notice is not given, that report cannot be accepted as such though it may be possible for the party concerned to examine the Advocate Commissioner and to corroborate his evidence the report can be made use of. Reliance is placed on Achuthan Vs. Kunhipathumma (1967 KLT 326) and Smt. Vadda Rajeswaramma Vs. L. Narasimha Charyulu and Ors. (AIR 1988 Andra Pradesh 202). It is also pointed out by learned counsel that when on a disputed fact there is a concurrent finding entered by the trial and appellate court the writ court shall not ordinarily interfere that finding of fact. Reliance is placed on the decision in Shyam Lal @ Kuldeep Vs. Sanjeev W.P.C.No.8220 OF 2010 : 4 : Kumar & Ors (2009(3) CCC 138). 3. May be the report obtained without giving notice to the opposite parties before inspection cannot be said to be part of the record in the way stated in Order 26 Rule 10(2) of the Code of Civil Procedure (for short, “the Code”) but even as decisions relied on by learned counsel for respondents say, it is not as if that report is without any consequence. It is open to the party who called the Commissioner to examine him as witness and prove the report, may be to corroborate the evidence of Commissioner as witness. I must also bear in mind that the decisions referred above Achuthan Vs. Kunhipathumma and Smt. Vadda Rajeswaramma Vs. L. Narasimha Charyulu and Ors. (supra) were not concerning acceptability of a report prepared without notice to the opposite party, while an interlocutory application was being considered. So far as an application under Order 39 Rule 1 of the Code is considered it is within the power of court to collect evidence by affidavit or 'otherwise'. Therefore, it is not as if the report of Advocate Commissioner, be it without notice to the opposite parties before inspection has to be completely ignored while considering the application for injunction also. True, the objection if any filed by the respondents to the report of Advocate Commissioner has also be taken into account while considering that report even for the purpose of deciding the interlocutory application. In the W.P.C.No.8220 OF 2010 : 5 : present case the courts below have not adverted to the report and sketch prepared by the Commissioner or the objection preferred by the respondents to that report and sketch. 4. Learned counsel has a contention that undue weight has been given to Exts.B5 and B6, sketch and proceeding of the Tahsildar. Learned counsel states that that said sketch and proceeding were prepared after inspection of the suit and after an order of interim injunction was passed in favour of respondents which fact was brought to the notice of the Tahsildar as per Ext.B4. I was not able to find from Ext.B4 the date on which that communication was given to the Tahsildar. It is also the argument of learned counsel that even the proceeding would not show that there was no such way in existence as claimed by respondents along the northern side of plaint A schedule but that proceedings only says about opening up a way along the northern side of plaint A schedule for access to the plaint C schedule. It is also argued that courts below have proceeded on the assumption as if Ext.B5, sketch is prepared at a time the disputed way existed. Learned counsel points out that Ext.B5 is only a plan as per which direction was issued by the Tahsildar to open up a way along the northern side of plaint A schedule. In view of the manner in which I propose to dispose of this writ petition it is not necessary for me to pronounce verdict on the above contention. W.P.C.No.8220 OF 2010 : 6 : 5. It is argued by learned counsel for petitioner that this being a suit for injunction simpliciter based on possession claimed by petitioner, what the courts below were to consider was whether on the date of suit petitioner was in possession of the suit property. On the other hand courts below have undertaken an exercise to find whether petitioner has title over the entire suit property by referring to the boundary and measurements in Exts.A1 and A2 and trying to pick holes in the case pleaded by petitioner on the premise that there is slight difference in boundary description. Learned counsel has a contention that so far as measurement of the eastern boundary of plaint A schedule is concerned, the mistake which occurred in Ext.A1 has been corrected by obtaining a correction deed. Learned counsel for respondents was not able to confirm or deny that since no such document has produced in the case. 6. It is seen from the judgment/order under challenge that courts below have not considered the report and sketch of Advocate commissioner and the objection preferred by the respondents to that. In view of that, I am unable to accept the contention of learned counsel for respondents that this court in exercise of its writ jurisdiction shall not interfere with the finding of fact entered by the courts below. An important material which ought to have been considered has been overlooked which is W.P.C.No.8220 OF 2010 : 7 : neither legal nor proper. True, it is not revealed from the judgment of learned Additional District Judge that any argument was addressed on the basis of the Advocate Commissioner. But ground F in the memorandum of appeal is that the trial court had not referred to the report of Advocate Commissioner. Having regard to these aspects and also taking into account the scope of the writ jurisdiction I think that the appropriate course is to sent the matter back to the court of learned Additional District Judge for fresh consideration of all the points raised before it. 7. According to the learned counsel for petitioner, after the disposal of C.M appeal the existing possession has been interfered by the respondents who has opened up a new way along the northern side of plaint A schedule. This allegation is of course stoutly denied by the learned counsel for respondents. I am not at the question whether any such act has been done by the respondents and if so it was after disposal of the C.M appeal. Ext.P8, report of Advocate Commissioner taken after the disposal of C.M. appeal shows the present condition of plaint A and C schedules and the disputed way on the northern side of plaint A schedule. Condition of the property as reported by Advocate Commissioner has to be maintained until learned Additional District Judge disposed of the C.M appeal. Resultantly, this writ petition is allowed in the following lines: W.P.C.No.8220 OF 2010 : 8 : (i) Ext.P6, judgment in C.M.A.No.87 of 2007 of the court of learned Additional District Judge-I, Ernakulam is set aside. (ii) C.M.A.No.87 of 2007 is remitted to the court of learned Additional District Judge for fresh consideration of the entire matter with reference to the points urged in the memorandum of appeal and urged on behalf of the petitioner. I make it clear that it will be open to both sides to advance all their arguments before the learned District Judge. (iii) Until disposal of the C.M appeal as aforesaid, I direct the parties to maintain the present condition of plaint A and C schedules and the disputed way on the northern side of plaint A schedule as reported by the Advocate Commissioner in Ext.P8, report. (iv) Parties shall appeal before the learned Additional District Judge on 15-07-2010. (THOMAS P JOSEPH, JUDGE) Sbna/-