IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 RSA.No. 7 of 2008(A) -------------------- AS.15/1997 of SUB COURT,ATTINGAL OS.278/1987 of MUNSIFF COURT,ATTINGAL .................... APPELLANT/APPELLANT/DEFENDANT NO.3: --------------------------------------- (*) BHADRAMMA, D/O PARAMESWARA PILLAI, MUDUVANTE VILA VEEDU, MUDAPURAM, KIZHUVILLAM DESOM, KIZHUVILLAM VILLAGE.(DIED. ADDL.APPELLANTS (LRS) IMPLEADED) ADDL.APPELLANTS: 2. VIJAYAMMA, D/O.BHADRAMMA, 58 YEARS, KIZHAKKETHOTTATHIL VEEDU, KIZHAKKANELA P.O., KULAMADA 3. VIJAYAN, S/O.BHADRAMMA. AGED 56 YEARS, VIJI BHAVAN, MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. 4. PRABHAKUMARI, D/O.BHADRAMMA. AGED 49 YEARS, MUTHUVANTEVILA VEEDU, MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. 5. PRAKASHAN, S/O.BHADRAMMA. AGED 49 YEARS, MUTHUVANTEVILA VEEDU, MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. 6. MURALIDHARAN, S/O.BHADRAMMA. AGED 47 YEARS, MUTHUVANTEVILA VEEDU, (AMMAVEEDU) MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU, REP. BY HIS WIFE AND POWER OF ATTORNEY HOLDER LATHA MURALIDHARAN, MUTHUVANTEVILA VEEDU, (AMMAVEEDU) MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. 7. RAJITHAKUMARI, D/O.VIMALAJA, AGED 32 YEARS, VILAYIL VEEDU, MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. RSA NO.7/2008 2 8. REJIKUMAR, S/O.VIMALAJA, AGED 31 YEARS, VILAYIL VEEDU, MUDAPURAM P.O., KIZHUVILAM, CHIRAYINKEEZHU. (*)ADDL.APPELLANTS 2 TO 8 ARE IMPLEADED AS THE LHRS. OF DECEASED SOLE APPELLANT AS PER THE ORDER DATED 17.2.2009 IN IA NO.2391/2008. BY ADV. SRI.R.S.KALKURA FOR ADDL. A2 TO A8 RESPONDENT(S): RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 AND 2: -------------------------- (**)1. GOVINDAN MADHUSOODANAN, THEKKEVILAKAM VEEDU, MUDAPURAM, KIZHUVILAM DESOM & VILLAGE, KIZHUVILAM P.O., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, 2ND RESPONDENT. (DIED. ADDL.R7 TO R9 IMPLEADED) (***)2. SREEMATHY, D/O MARTHANDAM OF THEKKEVILAKAM VEEDU, MUDAPURAM, (DIED) KIZHUVILAM DESOM AND VILLAGE, KIZHUVILAM P.O. (DELETED) (****) 3. KRISHNA SAHADEVAN, CHEELOOR VILLAGE, MADURA, TAMIL NADU STATE FROM THEKKEVILA VEEDU, MUDAPURAM, KIZHUVILAM DESOM & VILLAGE, KIZHUVILAM P.O. (DIED. ADDL.R10 TO R12 IMPLEADED AS LHRS.) 4. NANI BHARATHY, T.K.S.BHAVAN, MUDAPURAM, KIZHUVILAM DESOM, KIZHUVILAM VILLAGE, KIZHUVILAM P.O. (*)ADDL.RESPONDENTS: 5. GOPAKUMAR, S/O.VIMALAJA, VILAYIL VEEDU,MUDAPURAM P.O., KIZHUVILAM. 6. KISHORE, S/O.BHADRAMMA, MUTHUVANTEVILA VEEDU, MUDAPURAM, KIZHUVILAM. ADDL.RESPONDENTS: 7. BEENA, W/O.GOVINDAN MADHUSOODANAN, THEKKEVILAKAM VEEDU, MADAPURAM, KIZHUVILLAM DESOM & VILLAGE. 8. KRISHNAPRIYA, D/O.GOVINDAN MADHUSOODANAN, THEKKEVILAKAM VEEDU, MADAPURAM, KIZHUVILLAM DESOM & VILLAGE. 9. KRISHNAPRATHA, D/O.GOVINDAN MADHUSOODANAN, THEKKEVILAKAM VEEDU, MADAPURAM, KIZHUVILLAM DESOM & VILLAGE. RSA NO.7/2008 3 ADDL. RESPONDENTS: 10. SARADHA, W/O.LATE JANARDHANAN, VILAYIL VEEDU, KONATHU VEEDU, SREEKRISHNAPURAM, MUDAPURAM P.O., CHIRAYINKEEZHU. 11. LEELA, D/O.SARADHA, VILAYIL VEEDU, KONATHU VEEDU, SREEKRISHNAPURAM, MUDAPURAM P.O., CHIRAYINKEEZHU. 12. SIVADAS, S/O.SARADHA, VILAYIL VEEDU, KONATHU VEEDU, SREEKRISHNAPURAM, MUDAPURAM P.O., CHIRAYINKEEZHU. (*)ADDL.RESPONDENTS 5 AND 6 ARE IMPLEADED AS THE LHRS. OF DECEASED SOLE APPELLANT AS PER THE ORDER DATED 17.2.2009 IN IA NO.2391/2008. (**)ADDL.RESPONDENTS 7 TO 9 ARE IMPLEADED AS THE LHRS. OF DECEASED 1ST RESPONDENT AS PER THE ORDER DATED 3.11.2009 IN IA NO.669/2009. (***)THE SECOND RESPONDENT IS DELETED FROM PARY ARRAY AT THE RISK OF THE APPELLANTS AS TO THE CONSEQUENCES IF ANY AS PER THE ORDER DATED 9.10.2009 VIDE ORDER SHEET. (****)ADDL.RESPONDENTS 10 TO 12 IMPLEADED AS THE LHRS. OF DECEASED RESPONDENT NO.3 AS PER THE ORDER DATED 3.11.2009 IN IA NO.765/2009. ADV. SRI.SIBY MATHEW FOR R7TO R9 SRI.PHILIP J.MATHEW FOR R7 TO R9 SRI.B.PREMNATH FOR R7 TO R9 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.7 of 2008 -------------------------------------- Dated this the 25th day of November, 2009. JUDGMENT Admit. Respondent Nos.1 and 2 appear through counsel. 2. This Second Appeal is brought from the judgment and decree of learned Sub Judge, Attingal in A.S.No.15 of 1997 which is in challenge of judgment and decree of learned Munsiff, Attingal in O.S.No.278 of 1987. 3. Respondent Nos.1 and 2 sued the appellant and respondent Nos.3 and 4 for a declaration of title over the suit property, fixation of boundary and an alternative prayer for recovery of possession in case it is found that any portion of the suit property described in the plaint schedule as 8.250 cents in survey No.681/4/3 is in the possession of appellant and respondent Nos.3 and 4. According to respondent Nos.1 and 2, respondent No.1 got the suit property as per Ext.A1, assignment deed of 1979. Respondent Nos.1 and 2 alleged that they wanted to put up a compound wall on the south and east of suit property which was obstructed by the appellant and respondent Nos.3 and 4. Appellant and respondent Nos.3 and 4 filed O.S.No.224 of 1984 which ended in a dismissal. Respondent Nos.1 and 2 wanted to put up boundary to the suit property as aforesaid and apprehending obstruction again from appellant and respondent Nos.3 and 4, laid the suit. They apprehended that any portion of the suit property may be in the possession of appellant and respondent Nos.3 RSA No.7/2008 2 and 4. Hence by way of caution they incorporated a prayer for recovery of possession as well in case any portion is found to be in the possession of appellant and respondent Nos.3 and 4. Appellant and respondent Nos.3 and 4 contended that they have property on the south and west of the property belonging to respondent Nos.1 and 2 which they purchased in the year 1963. There is a Panchayat road on the east of the suit property and from that road there is a pathway having width of four links going along the south of the suit property and reaching the property of appellant on the west. Respondent Nos.1 and 2 tried to close the pathway when they filed O.S.No.224 of 1984. They also claimed that appellant has perfected title over the entire property on the west of the suit property by adverse possession and law of limitation. Initially Advocate Smt. V.Ragini (who is now a judicial officer) was appointed as commissioner to inspect the property and prepare plan with the assistance of a surveyor which she did. Accordingly a report and plan were submitted. Thereafter Advocate Shri D. Pradeep Kumar was appointed as commissioner. He inspected the properties, measured the same and submitted Ext.C1 report. That report was remitted to him and thereafter he submitted Exts.C2 and C2(a), report and plan, respectively. Trial court after considering Exts.C1 to C2(a) and evidence adduced by parties came to conclusion that entire property is in the possession of respondent Nos.1 and 2, granted declaration of title as prayed for by respondent Nos.1 and 2 and directed that boundary shall be fixed along AFB RSA No.7/2008 3 line and AE line shown in Ext.C2(a). Appellant/defendant No.3, aggrieved by judgment and decree of the trial court took up the matter in appeal. First appellate court observed that without setting aside the report and plan prepared by Advocate Smt. V.Ragini it was not proper for the trial court to have appointed another commissioner and obtain a fresh report and plan. First appellate court was of the view that there is no evidence to show whether any portion of the suit property was surrendered for construction of Panchayat road on the eastern side of the suit property and without ascertaining that fact it is not proper for the trial court to fix western boundary of the suit property along the lines stated in Ext.C2(a). Accordingly, first appellate court modified the decree of the trial court stating that the southern boundary of the suit property is allowed to be fixed in between B and F points as shown in Ext.C2(a) and with regard to the boundary on the further south-west, the same could be done in the executing court after ascertaining whether any portion of the suit property was lost for construction of the Panchayat road on eastern side. First appellate court allowed respondent Nos.1 and 2 to take a commission in the executing court for the said purpose. I am told that in the course of execution of decree passed by the first appellate court the same advocate commissioner who had submitted Ext.C2 series was appointed as commissioner and he, with the assistance of surveyor after measuring the property submitted a report and plan. According to learned counsel for appellant/defendant No.3 as per the plan prepared by the RSA No.7/2008 4 advocate commissioner on the execution side respondent Nos.1 and 2 are to get 8.715 cents as against the plaint schedule description of 8.250 cents. It is submitted by learned counsel that if that plan is accepted, the boundary would cut across a portion belonging to the appellant. 4. Following substantial questions of law are framed for a decision: i. Was it legal and proper on the part of the first appellate court to accept Exts.C1 and C2 series without setting aside the report and plan already submitted by another advocate commissioner? ii. Was it legal and proper on the part of the first appellate to order boundary to be fixed without settling all other disputes between parties and relegate the issue to the executing court to a decision? Learned counsel for appellant contended that without setting aside the report and plan submitted by Advocate Smt.V.Ragini, trial court could not have issued a second commission for the same purpose and consequently courts below went wrong in relying on Exts.C1 and C2 series. It is contended by learned counsel that boundary could have been fixed only after settling all other disputes between parties and it is no decision to fix the boundary without settling other such disputes nor was it proper for the first appellate court to have relegated the RSA No.7/2008 5 issue to the executing court for a decision. Learned counsel for respondent Nos.1 and 2 in response contend that there was no objection preferred by the appellant or respondent Nos.3 and 4 to the report and plan submitted by Advocate Smt. V.Ragini. It is also submitted that no objection was preferred to Ext.C2 series and hence it is idle for the appellant to now contend that courts below ought not have acted upon Exts.C2 series. 5. Prayer made by respondent Nos.1 and 2 is to fix the southern and western boundary of the suit property. Indisputably appellant owns property on the east and west. It is not disputed that there is a Panchayat road on the east of the suit property and going by the contention of appellant, there is a pathway having width of four links along south of the suit property originating from the said Panchayat road and reaching property of the appellant on the further west. It is also not disputed that advocate commissioner Smt. V. Ragini with the assistance of the surveyor had measured the properties and submitted a report and plan. That report and plan were not taken into account apparently for the reason that the advocate commissioner was not available for examination as witness since she got appointment in the Kerala Subordinate Judicial Services. First appellate court has found fault with the trial court for issuing a second commission without setting aside the first report and plan. I do not think that court is powerless under any circumstance to call for a second report and plan but only when the matters not covered by earlier report and plan are required to RSA No.7/2008 6 be called for or, additional facts are required for the just and proper decision of the case. None of such contingency arose in this case. That Advocate Smt.V.Ragini, who prepared the report and plan first had then appointed as a judicial officer is no ground to side line that report and plan and call for another report and plan. Without setting aside that report and plan, in my view the trial court went wrong in calling for a second report and plan with respect to the same matter. Trial court had to consider whether the report and plan submitted by Advocate Smt.V.Ragini (as she then was) are acceptable. 6. So far as fixation of boundary is concerned, it is seen from the judgment of the first appellate court that first appellate court was not satisfied with the western boundary of the suit property fixed as per Exts.C2 and C2(a) for the reason of the trial court not ascertaining whether any portion of the suit property was used for formation of the Panchayat road on the eastern side. If any portion of the suit property was used for formation of that road, western boundary of the suit property may not be as indicated in Ext.C2(a), plan. That is the reason why the first appellate court thought that the question whether any portion of the suit property was used for the formation of Panchayat road, if so what would be the western boundary is to be decided by the executing court. I am afraid, first appellate court could not and should not have adopted such a course. If any portion of the suit property was surrendered for formation of the Panchayat road on the eastern side that was a matter which the courts below RSA No.7/2008 7 should have decided on the trial side and then fixed boundary on the western side. In holding so I draw support from the decision of this Court in Bapputty @ Sydali & others v. Cheriakutty @ Veerankhani Rawther (1990 (1) KLJ 218). In paragraph No.6 learned Judge has observed thus: “........... I fail to understand how the courts below thought of a tentative fixation of boundaries liable to be varied later. The suit ought to have been dismissed by the courts below atleast on the ground that necessary parties are not in the array. Even otherwise, such a suit is not maintainable without a cause of action. So also, fixation of boundaries in such a suit could only be after settling various other disputes as to title and possession put forward by the appellants. Fixation of boundary cannot be a short cut to over-reach such contentions. Fixing boundaries and then directing the parties to settle their disputes including the correctness of the boundaries elsewhere is not a decision at all.” Another learned Judge of this Court in Anjil Vellachi and others v. Mamuni Bhaskaran alias Vattayil Bhaskaran (2009 (3) KHC 728) has taken the same view that fixation of boundary can be ordered only after settling other disputes involved. RSA No.7/2008 8 7. It is not as if under no circumstance the executing court cannot identify the suit property. This Court in P.N.Kurian v. Thulasidas (2003 (1) KLJ 716) has held that when in execution a question arises as to the identity of the property of which possession has to be delivered to the decree holder, obviously such a question would relate to the execution of the decree and it would be for the executing court to decide it as required by Sub-section (1) of Section 47 of the Code of Civil Procedure. That decision contemplates a situation where a dispute as to identity of the property comes up in the executing court. That decision is of no answer to say that disputes regarding identity of property in the trial court could be relegated to the executing court. In view of the above legal and factual position, I accept contention of learned counsel for the appellant that courts below went wrong in directing boundary of the suit property to be fixed based on Ext.C2(a). So far as surrender of land if any on the eastern side for formation of Panchayat road is concerned, courts below have to consider whether there is such a surrender as that would have a bearing on the southern boundary as well. These are matters to be decided by the trial court. Therefore judgment and decree under challenge cannot be sustained and the same are liable to be set aside. RSA No.7/2008 9 8. So far as acceptability of Exts.C1 and C2 series is concerned, I stated that the said report and plan were obtained without setting aside the first report and plan submitted by Advocate Smt.V.Ragini and without deciding whether without setting aside that report and plan, on the facts and circumstance a second report and plan could have been called for. That is a matter which the trial court has to consider. I direct the trial court to consider whether without setting aside the report and plan submitted by Advocate Smt.V.Ragini(as she then was) Exts.C1 and C2 series could be accepted and acted upon. I make it clear that it is open to both sides to file their objection if any to the report and plan submitted by Advocate Smt.V.Ragini and Exts.C1 and C2 series. If any such objection is preferred, trial court shall decide that issue as well. Trial court shall decide the issue of fixation of boundary after settling all other disputes involved and arising in the case on the pleadings of parties. 9. It is requested by learned counsel for respondent Nos.1 and 2 that in the light of the view I have taken it may be directed that trial court shall ignore the plan prepared in the executing court to decide the issue. I only make it clear that it was not legal and proper for the first appellate court to relegate the issue regarding fixation of boundary to the executing court. In the light of the above I answer the substantial questions of law framed in the above lines. RSA No.7/2008 10 Resultantly, Second Appeal succeeds. Judgment and decree under challenge are set aside. Case is remitted to the court of learned Munsiff, Attingal for fresh disposal. Learned Munsiff shall decide all the issues involved in the case before deciding upon the question of fixation of boundary. It will be open to the parties to adduce further evidence if any if they are so advised. They shall appear in the trial court on 22.1.2010. Trial court shall expedite trial and disposal of the case. THOMAS P.JOSEPH, Judge. cks