Laly Sebastian v. K.U.Francis

The petitioners are the defendants in O.S. No.1017/2014 of the Munsiff Court, Vadakkancherry. Petitioners are aggrieved by Ext.P7 order, which dismissed an application for remitting Ext.P4 Commissioner's report.

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

3. Learned counsel for the petitioners submitted that there was a specific request in the work memo preferred by the petitioners to measure out the property from the survey stone, which is available on the south-eastern corner of the property of the defendants. The same has not been complied with. Inasmuch as the property has not been measured from the survey stone available in the property, the measurement vide Ext.P4 cannot be accepted, is the OP(C) No.2773 of 2023 - 3 - submission made by the learned counsel. Learned counsel also submitted that the Commission report as such need not be remitted; instead, a fresh Commission can be appointed to again measure out the property, based on the survey stone available in the defendants' property. Learned counsel also relied upon a judgment of a Division Bench of this Court in Laly Joseph @ Laly Sebastian v. K.U.Francis [2023 (3) KHC 678].

4. Per contra, this application was seriously opposed by the learned counsel for the respondent/ plaintiff. It was pointed out that earlier a Commission was taken out with the assistance of a private surveyor, who was appointed on consent by both the parties. When the report was preferred by the Commissioner, serious objections were taken up by the present petitioners/defendants, whereupon the learned Munsiff appointed another Commissioner to measure out the properties with the aid of the OP(C) No.2773 of 2023 - 4 - same surveyor. As regards that course, no objection was taken up by the present petitioners/defendants. Now, the second report has been filed, which reiterates the findings in the earlier report, as per which, a portion of the plaintiff's property is found to be in possession of the defendants. The defendants desperately want to get over the said findings, which is the reason why, they prefer objection to Ext.P4 Commissioner report. Learned counsel would point out that the property has been measured on the basis of re-survey records, physical possession and also the title deeds. For the sole reason that the property has not been measured from the survey stone available in the defendants' property, Ext.P4 report cannot be remitted. It was also pointed out that the reason as to why, the property has not been measured on the basis of the survey stone, has also been stated in Ext.P4 report, vide answers to question no.4, at page no.4 and also question no.2, at page no.6 of OP(C) No.2773 of 2023 - 5 - the report. According to the learned counsel, no interference whatsoever, is required to Ext.P7 order.

5. Having heard the learned counsel appearing on both sides, this Court finds little merit in the instant Original Petition. This Court notice that the solitary issue canvassed by the learned counsel for the petitioners is that the property has not been measured on the basis of the survey stone available in the defendants' property, at its south-eastern corner. The reason as to why, such a course has not been adopted is contained in question no.4 at page no.4 of Ext.P4, which is extracted here below: "1.2 പ്രതതികളുടടെ വഹകൾ സർവവ ടസ്കെചതിൻ പ്രകകാരവവ ആധകാരപ്രകകാരവവ കകവശപ്രകകാരവവ അളന്നവപകാൾ വഹകളുടടെ ടതകകകതിഴവക മൂലയതിൽ കകാണുന്ന സർടവകലക., സർവവ അതതിർതതിയതിൽനതിനവ 1.6 മമീറ്റർ മകാറതിയകാണക സക ഥകാപതിചതിരതിക്കുന്നതക എന്നകാണക മനസതിലകാക്കുവകാനക സകാധതിചതക . ടെതി കലതിടന്റെ സക ഥകാനവ ടസ്കെചതിൽ മകാർകക ടചെയതിട്ടുണക .” OP(C) No.2773 of 2023 - 6 -

6. The same aspect is borne out from question no.2 in page no.6, the answer of which is also extracted here below: "അല. സർവവ ടസ്കെചക പ്രകകാരവ അളന്നവപകാൾ വഴതിയുടടെ ടതകക കതിഴവക മൂലയതിൽ സതിതതി ടചെയ്യുന്ന സർവവകലതിൽ നതിന 1.6 മമീറ്റർ ടതകക മകാറതിയകാണക വകാദതിയുടടെ വടെക്കു കതിഴവക മൂലയതിടല അതതിർതതി സതിതതി ടചെയ്യുന്നതക .” It could thus be seen that the Commissioner has stated adequate reason as to why the property has not been measured on the basis of the survey stone located at the south-eastern corner of the defendants' property.

7. Based on the objections, preferred by the petitioners/defendants, the Commissioner was examined, who deposed in cross examinations that the property has been measured on the basis of the title deeds, the survey records and also the possession. A perusal of Ext.P4 report would indicate that the Commission had essentially relied on the survey sketch issued from the office of the OP(C) No.2773 of 2023 - 7 - superintendent of survey to measure out the property, which is available in the answer to question nos.1 and 2. This Court is of the opinion that, for the solitary reason that a property has not been measured on the basis of the survey stone in the defendants' property, a Commissioner's report cannot be set aside. It is relevant to note that Ext.P4 is the report preferred by the second Commissioner, when objections were canvassed by the petitioners herein as against the first report. The contention of the learned counsel for the respondents that the present report reiterates the findings in the first report is also germane for consideration.

8. Faced with the situation, learned counsel for the petitioners sought for a further opportunity to examine the surveyor. In respect of the said request as well, this Court is not inclined to allow, inasmuch as a second opportunity to examine OP(C) No.2773 of 2023 - 8 - the surveyor, cannot be granted. This Court notice that specific allegations are raised against the surveyor in Ext.P5 objection preferred by the petitioners, dehors which, the petitioners have not chosen to examine the surveyor and remained contended with examining the Commissioner. If that be so, the second opportunity to examine the surveyor cannot be allowed. This Court also notice that the author of the Commission report is the Commissioner and the surveyor is merely assisting the Commissioner to measure out the property. When the Commissioner stands examined, this Court finds no reason to allow the substituted prayer of the learned counsel for the petitioners, for it may not serve any useful purpose. In the result, this Original Petition fails and the same will stand dismissed. Sd/- C.JAYACHANDRAN, JUDGE OP(C) No.2773 of 2023 - 9 - APPENDIX OF OP(C) 2773/2023 PETITIONERS' EXHIBITS: EXHIBIT P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P4(A) EXHIBIT P5 EXHIBIT P6 TRUE COPY OF THE PLAINT IN OS NO.1017/2014 DATED ON 01.09.2015. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS DATED 06.03.2015. TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT DATED 05.01.2015. TRUE COPY OF THE COMMISSION REPORT IN IA 905/19 IN OS.NO.1017/14 DATED ON 05.08.2022 TRUE COPY OF THE SKETCH IN IA 905/19 IN O.S.NO.1017/14 DATED ON.07.07.2022. TRUE COPY OF IA NO.3/23 DATED ON 30.08.2022. TRUE COPY OF THE DEPOSITION OF THE ADVOCATE DATED ON.14.08.2022. COMMISSIONER EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13.09.23 IA NO.905/22.