Kerala High Court · 2024

The petitioners herein are defendants 4, 5 and 7 in the suit, O.S.No.450/2016, of the Principal Munsiff Court, Kottayam. They are aggrieved by Ext.P5 order, which rejected an application for issuance of a Commission to measure out the plaint schedule properties.

2. Heard the learned counsel for the petitioners and the respondents.

3. Learned counsel for the petitioners submitted that the suit is one for fixation of boundary and also for rectification of a mistake in the re-survey plan. The defendants (petitioners herein) were originally set ex-parte. An application for Measurement Commission was made by the plaintiffs, which was allowed and Ext.P3 report was filed. After getting the ex-parte order set aside, the defendants OP(C) No.27 of 2024 - 4 - filed written statement, specifically contending that there was trespass to the extent of 3.5 cents made by the plaintiffs and that they have interfered with the pre-existing boundary. That apart, the learned counsel specifically relied upon the finding in Ext.P3 Commission Report, that the plaint schedule properties could not be measured, on the basis of the title documents, for the reason that the side measurement are not available in the title document and that the old survey plan was not made available. It was further reported by the Commissioner that there is difference in the extent of the property after re-survey. It is in such circumstances that the petitioners (defendants in the suit) preferred Ext.P4 application to measure out the properties, on the basis of the old survey map and the re-survey map, so as to enable fixation of boundary. The same was rejected vide Ext.P5 order, based on an erroneous finding that the defendants have no case that plaintiffs had encroached into the property of the defendants. Yet OP(C) No.27 of 2024 - 5 - another finding of the learned Munsiff in choosing to dismiss Ext.P4 application was that no patent error or illegality was pointed out as against Ext.P3 report and plan. Learned counsel would submit that Ext.P5 order is bad in law, warranting interference under Article 227 of the Constitution of India.

4. Per contra, the above submissions were seriously refuted by the learned counsel for the respondents. Learned counsel would point out that at the time of inspection, which led to Ext.P3 Commission Report, the defendants were present and that no objection, whatsoever, has been preferred to Ext.P3 Commission Report, though the same was filed as early as on

21.11.2022. It was then pointed out that the trial in the suit has already been commenced on

04.01.2024; PW1 was examined and Exts.A1 to A10 were marked, besides marking Exts.C1 and C1(a) Commission Report and plan. The case stands posted to

16.01.2024 for further evidence of the plaintiff. OP(C) No.27 of 2024 - 6 - Finally, learned counsel pointed out that no reason, whatsoever, has been stated in Ext.P4 application for applying for a second commission. On such premise, the respondents seek to sustain Ext.P5 order.

5. Having heard the learned counsel appearing on both sides, this Court is of the opinion that Ext.P5 order cannot be sustained. The primary thing to be taken note of is the relief sought for in the suit, that is to say, for fixation of the boundary between the plaint schedule item nos.1 and 2 and also for correction of an alleged mistake in the re-survey plan. In Ext.P3 report, the Commissioner categorically arrived at the following conclusion: "ടടി ആധധാരങ്ങൾകക്ക് ശശേഷഷം ററീസർവവ്വെ നടക്കുകയഷം വടിസറീർണ്ണതടിൽ വവ്യതവ്യധാസഷം വരടികയഷം വചെയക്ക് തടിട്ടുള്ളതധായടി ലഭവ്യമധായ ശരഖകൾപ്രകധാരഷം കധാണധാവുന്നതഷം കൂടധാവത ടടി ആധധാരങ്ങളടിൽ വസ്തുകളുവട സസഡക്ക് അളവുകശളധാ പധാനുകശളധാ ഇലധാതതടിനധാലഷം പഴയ സർവവ്വെ പധാൻ ഇരുഭധാഗത്തുനടിനഷം ലഭവ്യമധാകടിയടിടടിലധാതതടിനധാലഷം പടടിക വസ്തുകൾ ആധധാരപ്രകധാരഷം അളക്കുവധാൻ സധാധടിചടിടടിലധാതതധാകുന...” OP(C) No.27 of 2024 - 7 -

6. It could thus be seen that the plaint schedule properties could not be measured on the basis of the documents, since no side measurements were referred to in the title documents and that the old survey plan was not made available at the time of inspection. What has been measured as depicted in the plan, was the property as per existing possession of the plaintiff, which aspect is clear from the answer to point no.2. Based on the answer to point no.2, learned counsel for the respondent canvassed for the position that the properties are lying separate and distinct, wherefore it is possible to fix the boundary. This Court is not making any comment or finding with respect to that contention, except observing that in a suit for fixation of boundary, measurement of the property in terms of title deed, as also, the survey plan is a sine qua non.

7. In the above referred state of affairs, a fresh Commission is necessitated, so as to measure out the OP(C) No.27 of 2024 - 8 - properties on the strength of the respective title deeds, the old survey plan, as also, the re-survey plan, so as to identify the disputed southern boundary by and between the plaintiff's property and the defendants property. In the circumstances, Ext.P5 order will stand set aside and there will be a direction to the court below to proceed with the matter, after allowing the commission application.

8. As regards Ext.P4, this Court is of the opinion that the point sought to be ascertained as couched in Ext.P4, is not liable to be allowed. All what is required, is to measure out plaint schedule item nos.1 and 2, the first of which belongs to the plaintiff; and the second, to defendants. Measurement has to be done as per the respective title deeds, the re-survey plan and the old survey plan, so as to identify both the properties and to fix the disputed southern boundary. The issuance of Commission at this very belated point of time will be limited to the above aspects. This Court directs OP(C) No.27 of 2024 - 9 - that the same Commissioner, who is acquainted with the property, may be appointed, as it will be more convenient.

9. Since the suit is of the year 2016, this Court directs the learned Munsiff to expedite and monitor the execution of the Commission and to ensure that the Commission Report is made available at the earliest, after executing the work as indicated above. Once, the Commission Report is made available, the matter may be proceeded with swiftly and the same may be disposed of expeditiously, at any rate, within a period of three months from the date of filing of Commission Report. This Original Petition is disposed of, as above. Sd/- C.JAYACHANDRAN, JUDGE OP(C) No.27 of 2024 - 10 - APPENDIX OF OP(C) 27/2024 PETITIONERS' EXHIBITS: EXHIBIT-P1 EXHIBIT-P2 EXHIBIT-P3 EXHIBIT-P4 EXHIBIT-P5 TRUE COPY OF THE PLAINT IN O.S.450/2016 FILED BEFORE THE MUNSIFF COURT, KOTTAYAM. TRUE COPY OF THE WRITTEN STATEMENT IN O.S.450/2016, FILED BY THE 2ND PETITIONER AS 5TH DEFENDANT, BEFORE THE MUNSIFF COURT, KOTTAYAM. TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 21/11/2022 IN O.S. 450/2016, BEFORE THE ADDL. MUNSIFF COURT, KOTTAYAM. TRUE COPY OF THE AFFIDAVIT WITH APPLICATION I.A.NO.3/2023 IN O.S. 450/2016, FILED BEFORE THE MUNSIFF COURT, KOTTAYAM. TRUE COPY OF THE ORDER DATED 30/10/2023 IN I.A. NO.3/2023 IN O.S.450/2016, ON THE FILE OF THE ADDITIONAL MUNSIFF COURT, KOTTAYAM.