IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS.JUSTICE K.HEMA THURSDAY, THE 27TH DAY OF OCTOBER 2011/5TH KARTHIKA 1933 SA.No. 202 of 2001 (E) ----------------------- AGAINST THE ORDER/JUDGMENT IN AS.53/1998 of PRINCIPAL SUB COURT,ALAPPUZHA AGAINST THE ORDER/JUDGMENT IN OS.461/1993 of PRINCIPAL MUNSIFF,ALAPPUZHA APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------- 1. RETNAMMA, D/O.BHAVANI, THYPARAMBIL, ALISSERY WARD, ALAPPUZHA. 2. OMANA, D/O.BHAVANI, AGED 61 YEARS, -DO- -DO- 3. CHELLAMMA, D/O.BHAVANI, -DO- -DO- BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMARAN SRI.P.J.JOSEPH SRI.GEORGE MATHEW RESPONDENTS/APPELLANTS/PLAINTIFFS: --------------------------------------------- 1. MEHABOOB, S/O. ABDUL AZEEZ, THAYPARAMBIL VEEDU, ALISSERY WARD, ALAPPUZHA WEST VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA. 2. JAREENA, D/O.ABDUL AZEEZ, -DO- -DO- 3. KHALEEL -DO- -DO- BY R1- ADV. SRI.ROY CHACKO THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA ,J. “C.R” ------------------------- S.A No.202 of 2001 -------------------------- Dated this the 27th October, 2011 J U D G M E N T A suit was filed by plaintiffs-respondents before Munsiff Court, for fixation of boundary and recovery of possession of plaint schedule property. After trial, Munsiff Court dismissed suit. Aggrieved by the dismissal of the suit, plaintiffs-respondents filed an appeal. The Sub Court allowed the appeal and a decree was granted for fixation and demarcation of boundary, with reference to the boundary shown in Ext.C3, Surveyor's plan. A decree for recovery of possession was also granted in respect of the specific plot shown by the Surveyor in Ext.C3-plan and the said plan forms part of the decree. Aggrieved by the decree and judgment, the defendants in the suit has filed this second appeal. 2. Facts briefly: The suit was filed by respondents herein against appellants on the averments that they are the absolute owners of the plaint schedule property, as per Ext.A1, which is a sale deed dated 21.11.1966. Out of the said property, two plots SA 202/01 2 having an extent of 10 cents and 7 cents were sold to one Kamaluddin and Jaleel respectively. Excluding the said property, 8 cents of property are still in possession of plaintiffs, which is fragmented into two pieces: the plot having an extent of about 3¼ cents is situated on the south of the 17 cents referred above and it constitutes residential property of plaintiffs. The plot having a balance extent of 4¾ cents is situated on the north of above mentioned 17 cents and it is the plaint schedule property. 3. On 15.1.1993, defendants-appellants allegedly trespassed into plaint schedule property and put up three latrine tanks thereon, taking advantage of absence of visible boundary separating plaint schedule properties from defendants' property on the northern side of plaint schedule property. The plaintiffs approached defendants through mediators and asked them to remove the structures put up in the property but the said request was turned down. The defendants have no right over the plaint schedule property. Hence, according to plaintiffs-respondents, they are entitled to recover possession of plaint schedule properties, and also to get boundary fixed and latrine tanks removed. Hence, the suit. SA 202/01 3 4. A written statement was filed by defendants stating that suit is barred for non-joinder of necessary parties, since all co-owners of the disputed property are not made parties to the suit. The plaintiffs have no right over plaint schedule property. The description of the plaint schedule property is not correct. There is a visible demarcation on the northern boundary of plaintiffs' property by an old fencing and there is no necessity to fix northern boundary. 5. The plaint schedule property does not form part of the 25 cents of land covered by Ext.A1 but, it is in possession of defendants for the past more than 50 years. The plaint schedule property is actually, a channel running on the northern boundary of plaintiffs property. The plaintiffs are not entitled to recover possession of the plaint schedule property. If at all plaintiffs had any nominal right over plaint schedule property. The defendants have perfected title by long, continuous, uninterrupted and open possession for the past more than 50 years. The plaintiffs lost their rights on the plaint schedule property and suit is to be dismissed. 6. The Munsiff Court framed as many as six issues. PW1 SA 202/01 4 was examined and Exts.A1 and A2 were marked on the side of plaintiffs. DW1 and DW2 were examined on the side of defendants. Exts.C3 to C3 were also marked. 7. On consideration of evidence and all matters on record, Munsiff Court found that alleged trespass is not true and dismissed the suit. In appeal, Sub Court held that respondents have title to disputed property which is shown in yellow colour in Ext.C3 and they are also entitled for recovery of possession of the said property and get the boundary fixed and a decree was passed. This second appeal is against the said decree and judgment. 8. Heard both sides. Perused the records. In the memorandum of second appeal, appellants framed certain questions, purporting to be substantial questions of law. But, on a reading of those questions, most of them appear to be only questions of facts and not substantial questions of law. Sri. Roy Chacko, learned counsel for respondents therefore, argued that no substantial question of law is involved in this case and none can be framed by this court also. Therefore, this second appeal is not maintainable, it is argued. SA 202/01 5 9. Learned counsel for respondents also vehemently argued that in the absence of any substantial question of law being raised by appellants in the appeal memorandum, it would be illegal for this court to frame any substantial question of law and decide the second appeal. He further argued that a respondent can contend that no question of law is involved in this case in view of section 100(3) of CPC, and second appeal has to be dismissed, as held by the Supreme Court in (vide Santhosh Hazari V. Purushotam Tiwari (2001(3) SCC 179) 10. Learned counsel for respondents also argued that if at all this court wants any additional question of law to be framed, reasons must be given. He placed reliance upon the decisions reported in Muthu Gounder V. Amayea Ammal (2002 (6) SCC 194) in support of his arguments. in the light of the above arguments, I shall first consider the scope of Section 100 CPC. Section 100 CPC reads as follows: “Section 100. Second Appeal (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case SA 202/01 6 involves a substantial question of law. (2)An appeal may lie under this section from an appellate decree passed ex parte. (3)In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4)Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5)The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question”. 11. A reading of Section 100 CPC reveals that an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case “involves” a substantial question of law. The memorandum of appeal shall precisely state the substantial question of law involved in the appeal. Nevertheless, as per Section 100(3) CPC, the High Court shall formulate the substantial question of law if it is satisfied that such question is SA 202/01 7 involved in any case. 12. As per Sub-section (5) of Section 100, the appeal shall be heard on the question formulated by the High Court and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. But, as per the proviso to Section 100(5), nothing stated in the sub-section shall be deemed to take away or abridge the power of the Court to hear the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. The only requirement is that the reasons must be recorded. 13. Thus, it is abundantly clear that High Court can hear the Second appeal on any substantial question of law which is not even formulated by the court or stated by appellants in the appeal memorandum, if it is satisfied that such question is involved in the second appeal. But, for doing so, the High Court shall record reasons. On hearing both sides and on going through the appeal memorandum and records, I find that this appeal involves more than one substantial question of law. However, none of the purported questions of law stated by the appellants in SA 202/01 8 the appeal memorandum, strictly speaking, can be termed as substantial question of law. 14. A question which is purported to be a substantial question of law which is stated in the appeal memorandum is like this: “whether lower appellate court was justified in relying upon Ext.C3 plan”. Though it may apparently appear that the above question is only a question of fact, on a deeper consideration of entire matter before me, I find that at least two substantial questions of law are latent in the above question (what exactly are such questions will be stated in the appropriate context). Since I am satisfied that two substantial questions of law are involved in this appeal, I have formulated such questions in this appeal. 15. As per Section 100(3) CPC, the appellants are only required to “state” the substantial question of law in the appeal memorandum but, it is for the High Court to “formulate” such question, as per Sub-section (4) of Section 100 CPC, if the court is satisfied that a substantial question of law is involved. The difference in the expressions used in Section 100(3) and (4) CPC, with reference to appellant and the court respectively is striking. SA 202/01 9 “State” only means, “to formally write or say some thing, especially in a careful and clear way”. But, “formulate” means, “to express your ideas in carefully chosen words; to create or prepare some thing carefully, giving particular attention to the details” (vide Oxford Advanced Learner's Dictionary, 7th Edition). 16. Therefore, on a close reading of Section 100 CPC, I find that even if the appellants have not carefully or clearly “stated” the substantial question of law which is involved in appeal memorandum precisely, the High Court can express the ideas in more carefully chosen words and thereby, formulate the questions of law. Therefore, technically speaking, though it may be said that there is defect in not stating the substantial question of law in the appeal memorandum, on consideration of the scope of Section 100 CPC, I am of view that such defects are not sufficient to dismiss the second appeal. 17. A joint reading of Sub-sections (1) to (5) of Section 100 CPC makes it clear that that if the High Court is satisfied that the appeal “involves” a substantial question of law in the appeal, it shall “formulate” such question. Even if appellants have not carefully chosen the words and stated the question of law in the SA 202/01 10 appeal memorandum, by giving particular attention to the details, by expressing the ides carefully, this court shall “formulate” the questions, as stated in Section 100(4), provided the case “involves” a substantial question of law. 18. But, it will be too technical to dismiss an appeal for the reason that the question involved is not correctly stated by the appellants by carefully choosing the words to express the ideas. It is most pertinent to note that as per the proviso to Section 100(5) CPC, even if no substantial question of law is formulated by the High Court, nothing restricts or prohibits the High Court from hearing the appeal on any substantial question of law which is not even formulated by it, if it is satisfied that the case “involves” such a question, provided reasons are recorded for doing so. 19. The facts being so, I am not inclined to dismiss this appeal for a technical reason that appellants did not correctly state the substantial question of law in the appeal memorandum in choosing the apt words. There is nothing in the decisions cited by appellant's counsel which strikes a different note. Of course, respondents are at liberty to argue at the time of hearing that no SA 202/01 11 substantial question of law as formulated by the court is involved in this case. But, the argument here is something else. According to respondents, no question of law as stated by the appellants in the appeal memorandum is involved in this case and hence, appeal is to be dismissed. Such a contention is not permissible under Section 100, C.P.C. 20. A close reading of Section 100(5), particularly the proviso thereto will make it clear that the challenge is to be made against the questions “formulated” by the court and not those stated by appellants in the appeal memorandum. On going through records and on reading the questions framed by appellants in the appeal memorandum, I find that at least, minimum of two substantial questions of law are actually involved in this appeal relating to the very admissibility of Ext. C3-plan which is produced by the Commissioner along with his report. 21. To effectively resolve the dispute and to take a right decision in the case, it is necessary for this court to consider such questions of law. Therefore, it is necessary to re-shape or modify the question already stated in the appeal memorandum, “whether lower appellate court was justified in relying upon SA 202/01 12 Ext.C3 plan” and formulate substantial questions law involved in this appeal. Even though appellants and his counsel omitted or failed to choose the exact words in stating substantial questions of law in the appeal memorandum, I cannot shut my eyes to a very serious illegality committed by the court below in treating Ext C3-plan as “evidence” and even ordering it to form part of the decree, which calls for intervention by this court. I am fully satisfied that a very important substantial question of law is involved in the appeal and it is necessary to consider the same. 22. The role of the court is to do substantial justice to the parties, within the frame work of law and not merely to watch who played the game better. Therefore, in my considered opinion, this court shall formulate substantial questions of law if, it finds that a substantial question of law is “involved” and especially if it is essential to consider the same to resolve the dispute between the parties in an effective manner. Even if there is some defect in stating the question of law in the appeal memorandum, nothing prevents this court from formulating the substantial questions of law showing the details in carefully chosen words. SA 202/01 13 23. On going through the decisions cited by learned counsel for respondent also, I find that there is no bar in adopting such a course. It is useful to refer to Yomeshbhai Pranshankar Bhatt v. State of Gujarat (2011) 6 SCC 312) in which the Supreme Court held thus: “14. Proviso to Section 100 of the Code makes it clear that the powers of the High Court cannot be fettered to hear a second appeal on a question which was not formulated by it at the time of admitting a second appeal, if the case involves any other question. So far as the High Court is concerned, the same has been statutorily recognised under Section 100 in the case of second appeal”. 24. Therefore, even though appellants have not correctly stated substantial question of law in the appeal memorandum, I have formulated two substantial questions of law which are involved in this appeal. Those questions deserve to be considered for resolving the dispute and arriving at a right decision in this case. I have therefore, formulated such questions, with notice to both sides and heard them on those questions, elaborately. The substantial question of law involved and formulated by this court in this second appeal are as follows: SA 202/01 14 i. Does the surveyor's plan which is produced along with commission report constitute “evidence” under Order XXVI Rule 10 of CPC? ii. Is surveyor's plan admissible in evidence, without examination of the commissioner? If not, will it be legal for the court to enter any finding of fact based on the details of such plan? 25. Substantial questions of law 1 and 2: On going through the impugned judgment, it is evident that appellate court placed explicit reliance upon Ex C3-plan produced along with commission report and almost all the crucial conclusions of facts are arrived at, mainly on the basis of the details shown in the said plan. Ext.C3 was ordered to form the part of the decree also. On a perusal of records, particularly, the Commission Report and plan, it can be seen that Ext.C3 is a plan which is purportedly prepared by a surveyor. It is produced along with the commission report and mahazar, Ext.C1 and Ext.C2. 26. The commissioner stated in his report that he visited plaint schedule property and at that time, Surveyor and the parties were present. But, there is nothing in his report Ext.C1 or Ext.C2 to show as to who prepared Ext.C3-plan. The SA 202/01 15 commissioner also did not report that the disputed property was measured and located by the surveyor or at least that he had seen the measurement being taken by him. There is nothing in the Commission Report to show that commissioner had any direct knowledge about any thing purportedly done by Surveyor at the site or in preparation of the plan. 27. The commission report has not even reported that details shown in Ext.C3 are correct or that those tallied with the observations which he made at the site. There is nothing in Commission Report by which commissioner vouchsafes the correctness of the details in Ext.C3. However, lower appellate court held in the impugned judgment, “first grade Surveyor has measured and located the property covered by Ext.A1”. Merely because a plan which is purportedly prepared by a Surveyor is produced along with a Commission Report and it happened to be marked also, there will be no justification in entering such finding treating the plan as “evidence”. 28. The mere marking of a document will not tantamount to proof of its execution nor will it prove correctness of the facts stated in the writing contained in the document, SA 202/01 16 particularly in the absence of any thing to show in the commission report that the details shown in the plan are correct It appears that the court below presumably acted on a wrong assumption that Surveyor's plan also constitutes “evidence” under Order 26 Rule 10(2) of CPC. I will consider whether such assumptions are legally correct or not. Order 26 Rule 10 of the CPC reads as follows: “Order 26 Rule 10. Procedure of Commissioner.—(1)The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. (2) Report and depositions to be evidence in suit.—The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation. (3) Commissioner may be examined in person.—Where the Court is for any reason dissatisfied with the proceedings of SA 202/01 17 the Commissioner, it may direct such further inquiry to be made as it shall think fit”. 29. Order 26 Rule 10(1) CPC lays down that The Commissioner, after making a local inspection and after reducing to writing, the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. The report of the Commissioner and the evidence so taken by him shall be “evidence” in the suit and shall also form part of the record, as per Order 26 Rule 10(2) CPC. But, it is clear from the said provision that the evidence so taken, without report, will not be “evidence”. 30. Therefore, what is “evidence” under Order 26 Rule 10(2) CPC is report of the commissioner. By virtue of the expression, “but not the evidence without the report” contained in Order 26 Rule 10(2) CPC, it is clear that what is significant is the report. So also, what is admissible as “evidence” under Order 26 Rule 10(2) CPC is the report of the commissioner and the evidence taken and reduced into writing by the commissioner and, not the evidence without the report. 31. Significance is given in Order 26 Rule 10(2) CPC to SA 202/01 18 the “report” because, as per the said provision, without such report, even evidence taken by the commissioner and reduced to writing will not constitute “evidence” under Order 26 Rule 10(2) CPC. Only if there is a report, “evidence” taken by him on a local inspection will be treated as “evidence”. Even if the Commissioner has taken evidence on a local inspection and reduced the same into writing, if such evidence alone is produced in court, such evidence, without the report cannot by itself be treated as “evidence”, as per order 26 Rule 10(2) CPC. 32. Therefore, it is clear that the report of the Commissioner alone is intended to by the legislature constitute “evidence” Order 26 Rule 10(2) CPC. Even if the commissioner has taken any evidence on a local inspection and reduced the same into writing, if such evidence alone is produced in court, such evidence cannot by itself be treated as “evidence”, as per Order 26 Rule 10(2) CPC. What is important is the report of the Commissioner and the facts stated by him in his report. 33. The object of Order 26 Rule 10 CPC is to admit in evidence, the facts reported by the commissioner in his report, of which, he has direct knowledge and thereby, to avoid his SA 202/01 19 examination in court as a witness, to prove all the facts which are perceived by his senses and reported by him in his report. If the Commissioner has seen a fact, he may report such fact seen by him. Such facts will be treated as “evidence” under Order 26 Rule 10(2) CPC. So, what is intended to be treated as “evidence” are the facts which the commissioner has reported in his report about which, commissioner has direct knowledge. 34. But, the provision contained in Order 26 Rule 10(2) CPC is not meant for admitting any thing which is otherwise inadmissible in law, as “evidence”. For example, if a commissioner reports any fact on the basis of hearsay, of which he has no direct knowledge, such fact cannot be treated as “evidence”, even if he has reported such a fact in the report. The provision contained in Order