IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH MARCH 2009 / 27TH PHALGUNA 1930 SA.No. 35 of 2001(D) -------------------- AS.47/1996 of III ADDL.SUB COURT, KOZHIKODE OS.430/1989 of ADDL.MUNSIFF COURT,KOZHIKODE-I .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1. VAYALORAKANDY MAMMED KOYA, SON OF HASSAN KUTTY, RESIDING AT NADUVATTOM AMSOM DESOM, KOZHIKOE TALUK. 2. VAYALORAKANDY ASSANKOYA, SON OF VAYALORAKANY MAMMED KOYA, IN -DO- -DO- 3. VAYALORAKANDY ALIKOYA, S/O.-DO- IN -DO- -DO- 4. VAYALORAKANDY ABDULLA KOYA, S/O.-DO- IN -DO- -DO- 5. VAYALORAKANDY RASIYABI, D/O.-DO- IN -DO- -DO- BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI P.B.KRISHNAN RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- KUNNATH MOHAMMED, S/O.KUNHIMARAKKARU, RESIDING AT NADUVATTOM AMSOM AND DESOM, KOZHIKODE TALUK. ADV. SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL SAJEENDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.35 of 2001 -------------------------------------- Dated this the 18th day of March, 2009. JUDGMENT This Second Appeal is at the instance of the defendants. Parties are referred as plaintiff and defendants as in the trial court for convenience. 2. At a time when their relationship was cordial plaintiff and defendants who owned the adjoining properties entered into Ext.A4, exchange deed followed by Ext.A3, agreement for construction of a commercial building in the said property motive being to avoid the difficulties that the Building Rules may create in case they constructed buildings individually in their registered holdings. Accordingly, plaint A schedule item Nos.1 and 2 which are referred to as item Nos.1 and 2 in Ext.A4 were given to the plaintiff in consideration of item No.3 of Ext.A4 being given to defendant No.1. As per the agreement, a building was constructed in the properties belonging to them. According to the plaintiff, plaint A schedule item Nos.1 and 2 were given to him to be used as a pathway for access to his portion of the building situated towards the southern extremity from the road on the northern extremity. Alleging that there was an attempt on the part of defendants to trespass into the plaint A schedule items Nos.1 and 2 which the plaintiff claimed is absolutely necessary for access to his portion of the building, plaintiff laid the suit for a decree of mandatory and prohibitory injunction. Advocate Noorbina was appointed as commissioner to inspect the SA No.35/2001 2 properties. She inspected the properties and submitted Exts.C3 and C4, report and rough sketch. Defendants contended that the plaintiff has no absolute title over the plaint A schedule item Nos. 1 and 2 and disputed its width as stated in the plaint schedule. Plaintiff filed an application to remit Exts.C3 and C4 to the same commissioner. That application was dismissed. While so, alleging that defendants encroached into a portion of plaint A schedule item Nos.1 and 2, plaintiff sought amendment of the plaint to incorporate an alternative prayer for recovery of possession. That application was allowed. Thereafter plaintiff filed another application for appointment of an advocate commissioner to inspect the properties. That application was allowed. Advocate commissioner submitted report and plan - Exts.C1 and C2. Both sides adduced evidence. Trial court granted a decree as prayed for based on Exts.C1 and C2. Defendants took up the matter in appeal. First appellate court modified the decree mainly as regard the width of the disputed way. That judgment and decree are under challenge in this Second Appeal. 3. The substantial questions of law arise for a decision are: SA No.35/2001 3 (i) Whether the principle of res judicata would apply to the different stages of the same proceeding in which case the courts below were justified in acting upon Exts.C1 and C2? (ii) Whether the courts below went wrong in granting relief with respect to plaint A schedule item Nos.1 and 2? 4. It is contended by learned counsel for appellants/defendants that the trial court has committed a jurisdictional error in deputing another commissioner without setting aside Exts.C3 and C4. Learned counsel pointed out that in fact, the request to remit Exts.C3 and C4 was turned down by the trial court but later, a similar request was allowed. That according to the learned counsel is not permissible on the principle of res judicata. 5. Records of the case show that after Exts.C3 and C4 were submitted by the commissioner (Adv.Smt. Noorbina), plaintiff filed I.A.No.4369 of 1989 to remit Exts.C3 and C4 to the same commissioner in the light of the objections raised by the plaintiff to Exts.C3 and C4. That application was objected by the defendants. Learned Munsiff as per order dated 11.11.1991 dismissed I.A.No.4369 of 1989 observing that the plaintiff has not made out any ground to remit Exts.C3 and C4. That application was preferred by the plaintiff SA No.35/2001 4 before the amendment of the plaint incorporating the alternative prayer for recovery of possession alleging trespass into a portion of plaint A schedule item Nos.1 and 2. Later, plaintiff filed I.A.No.1483 of 1993 to appoint an advocate commissioner stating that the plaint A and B schedule properties are to be measured properly and requesting to report on the alleged encroachment. That application was objected by the defendants referring to the dismissal of I.A.No.4369 of 1989. Learned Munsiff allowed I.A.No.1483 of 1993 and appointed the same advocate as commissioner for further inspection and report. It would appear that for quite some time that advocate was not available to execute the commission warrant, and hence plaintiff filed I.A.No.3304 of 1993 stating that the services of the advocate named in the order on I.A.No.1483 of 1993 is not available and requesting to appoint another advocate as commissioner. Learned Munsiff by allowing that application appointed Advocate Shri Ramakrishnan as commissioner. Advocate Shri Ramakrishnan inspected the properties and submitted Exts.C1 and C2. Contention advanced by the learned counsel for appellants/defendants is that without setting aside Exts.C3 and C4, it was not legally permissible for the learned Munsiff to allow I.A.No.1483 of 1993. It is also contended that dismissal of I.A.No.4369 of 1989 operated as res judicata and hence the trial court could not have allowed I.A.No.1483 of 1993. To buttress his contention learned counsel placed reliance SA No.35/2001 5 on the decisions in Swami Premananda Bharathi v. Swami Yogananda Bharathi (1985 KLT 144) and Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another (AIR 1960 SC 941). 6. In Swami Premananda Bharathi's case it is held that a commissioner can be appointed a second time only after setting aside the first report and that the defect (in appointing a second commissioner without setting aside the first report) is not cured by Section 99 of the Code of Civil Procedure. In Satyadhyan Ghosal's case it is held that the principle of res judicata would apply to the different stages of the same proceeding. 7. It is not as if the court is powerless to appoint a second commission under any circumstances whatsoever, without setting aside the earlier report. After referring to the decision in Swami Premananda Bharathi's case, a learned Single Judge of this Court held in Sivaraman v. V.C.Narayanan (AIR 1987 Ker. 156) that if the report of the first commissioner is found to be deficient on any point, the proper course would be to direct same commissioner to remedy the defects and that the court has the power to do so. Later, another learned Single Judge held in K.L.D. & M.M. Board Ltd. v. Achuthan (2001(2) KLT 440) that for the ends of justice, the court can issue a second commission to collect SA No.35/2001 6 more details for which it is not necessary to set aside the earlier report. In this case Exts.C3 and C4 did not contain the necessary datas. Ext.C4 is only a rough sketch. It is for proper measurement of the disputed properties and to report on the alleged encroachment that learned Munsiff directed the same commissioner to inspect the property again and as it was reported that the commissioner is not available, another advocate (Shri Ramakrishnan) was appointed. There is nothing illegal or irregular in the learned Munsiff calling for a further report to collect more details on the facts and circumstances of the case. It is true that the request of the plaintiff to remit Exts.C3 and C4 in the light of the objections raised by him to that report and plan was rejected by the learned Munsiff as per order in I.A.No.4369 of 1989. But what was requested vide I.A.No.1483 of 1993 was not to remit Exts.C3 and C4 but to appoint an advocate commissioner to inspect the properties, measure plaint A and B schedules properly and to report on the alleged encroachment. It is not as if in I.A.No.1483 of 1993 the very same prayer made in I.A.No.4369 of 1989 and rejected by the learned Munsiff as per order dated 11.11.1991 was made. I am not inclined to think that the order dated 11.11.1991 on I.A.No.4369 of 1989 foreclosed the right of the plaintiff to get further report regarding matters which were not brought out through Exts.C3 and C4. It is also to be noted that the contention that learned Munsiff ought not have allowed I.A.No.1483 of 1993 without setting SA No.35/2001 7 aside Exts.C3 and C4 is not taken up by the appellants/defendants in the appeal memorandum as a ground and instead, going by the grounds stated in the appeal memorandum appellants/defendants are also relying on Exts.C1 and C2. Hence the acceptability of Exts.C1 and C2 cannot be challenged. 8. The crucial question is whether there is anything illegal in the courts below granting relief to the plaintiff in respect of plaint A schedule item Nos.1 and 2. It is seen from Exts.C1 and C2 and it is admitted by both sides as well that the plot marked as ABEF adjoining the road on the northern side is an open space, plot marked as EFCD is the portion of the building belonging to and in the possession of the defendants and the plot on the further south marked as CLKJ is the portion of the building belonging to the plaintiff. It is contended by the learned counsel for defendants that though the plaintiff had obtained an approved plan from the Corporation which would disclose the width of the disputed pathway, that document is not produced. It is also contended by the learned counsel for defendants relying on the evidence of PW1 (plaintiff) that in the year 1976 the authorities of the mosque on the eastern side had trespassed into a portion of plaint A schedule items Nos.1 and 2 and constructed compound wall and hence plaintiff is not entitled to get as much width of the SA No.35/2001 8 disputed pathway as stated in the plaint schedule and Ext.A4. Learned counsel contended that the courts below omitted to consider the admission of PW1 to the above effect. 9. The argument would sound attractive but, it is seen that the first appellate court has modified the decree reducing the width of the disputed pathway. Going by Exts.A3 and A4 and as admitted by the defendants also, the yellow shaded portion in Ext.C2 (on the immediate west of the plaint A schedule items) is the eastern wall of the portion of the building belonging to the defendants. Defendants have no case that while constructing building on the western side of the plaint A schedule item Nos.1 and 2, they have left any space on the eastern side of their eastern wall. In other words, the entire open space on the eastern side of the eastern wall of the building belonging to the defendants (marked as EFCD in Ext.C2) formed part of the pathway referred to in item Nos.1 and 2 in Ext.A4. If that be so, assuming that the mosque authorities have encroached on the eastern side it makes no difference so far as the width of the disputed pathway is concerned, between the plaintiff and defendant No.1. On going through the judgments under challenge, I find no jurisdictional error, illegality or irregularity in the findings entered by the courts below. SA No.35/2001 9 9. No other point is raised for consideration. Resultantly, this Second Appeal fails. It is dismissed. No costs. C.M.P.No.73 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.35/2001 10 Thomas P.Joseph, J. S.A.No.35 of 2001 JUDGMENT 18th March, 2009.