Kerala High Court
Karichery Karthyayani Amma vs Shanthakumari, W/O.M.Kunhikannan ... on 23 June, 2025
2025:KER:44832
RSA NO. 1312 OF 2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 23RD DAY OF JUNE 2025 / 2ND ASHADHA, 1947
RSA NO. 1312 OF 2012
AGAINST THE JUDGMENT AND DECREE DATED 30.06.2012 IN AS
NO.94 OF 2008 OF ADDITIONAL DISTRICT COURT (ADHOC-II)
KASARAGODE ARISING OUT OF THE JUDGMENT AND DECREE DATED
30.10.2004 IN OS NO.366 OF 1996 OF ADDITIONAL MUNSIFF,
KASARAGOD
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 KARICHERY KARTHYAYANI AMMA
W/O.M.GOVINDAN NAIR, RESIDING AT
KOLLARAMKODU,BEDADKA VILLAGE,
P.O.KUNDAMKUZHI,KASARAGOD TALUK AND DISTRICT.
2 M.GOVINDAN NAIR
RESIDING AT KOLLARAMKODU,BEDADKA
VILLAGE,P.O.KUNDAMKUZHI,KASARAGOD TALUK AND
DISTRICT.
BY ADVS.
SHRI.SURESH KUMAR KODOTH
SMT.HEMALATHA
2025:KER:44832
RSA NO. 1312 OF 2012
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RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 SHANTHAKUMARI, W/O.M.KUNHIKANNAN NAIR
RESIDING AT KOLLARAMKODU, BEDADKA VILLAGE,
P.O.KUNDAMKUZHI,KASARGOD TALUK AND DISTRICT, PIN
- 671 541.
2 M.KUNHIKANNAN NAIR
RESIDING AT KOLLARAMKODU, BEDADKA VILLAGE,
P.O.KUNDAMKUZHI,KASARGOD TALUK AND DISTRICT, PIN
- 671 541.
BY ADV SHRI.R.S.KALKURA FOR R1 & R2
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.06.2025, THE COURT ON 23.06.2025 DELIVERED THE FOLLOWING:
2025:KER:44832
RSA NO. 1312 OF 2012
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EASWARAN S., J.
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RSA No.1312 of 2012
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Dated this the 23rd day of June, 2025
JUDGMENT
The defendants in a suit, O.S.No.366/1996 on the files of Additional Munsiff's Court, Kasaragod, for recovery of possession and mandatory injunction, have come up with the present second appeal.
2. The brief facts necessary for the disposal of the appeal are as follows:
The properties described as item Nos.1 and 2 in the plaint A schedule property belong to the 1st plaintiff. The 1st plaintiff purchased plaint A schedule property among other properties as per registered sale deed dated 28.4.1993 from Mullachery Akku Amma and Tambayi Amma. The third item of the plaint A schedule property among other properties were allotted to the share of the 2nd plaintiff as per the registered partition deed dated 7.7.1978. The third item was included 2025:KER:44832 RSA NO. 1312 OF 2012 4 in D schedule to the said partition deed. The 2nd plaintiff was in possession and enjoyment of the third item of the plaint A schedule. The 1st and 2nd plaintiffs are in possession and enjoyment of their respective properties. The 1st defendant is possessing some lands adjacent to the plaint A schedule properties. On 20.9.1996, the defendants reduced a portion of the plaint A schedule properties, which are described in the plaint B schedule. The defendants have unlawfully constructed a boulder stone compound wall and fence to a height of 3½ feet on the southern side of the plaint item No.3 and through item No.1 of the plaint B schedule property. The said action of the defendants is thus illegal and unlawful; and hence the suit. The defendants entered appearance and contested the case, stating that the property described in X schedule of the written statement belongs to the defendants. It is contended that the plaintiffs are trying to take undue advantage of the fact that the X schedule properties and the plaint schedule properties are situated in the same survey number. It was further contended that the identity of the plaint schedule property 2025:KER:44832 RSA NO. 1312 OF 2012 5 is not correct and therefore, the plaintiffs are not entitled for the reliefs sought for in the plaint. On behalf of the plaintiffs, Exts.A1 and A2 were marked and PW1 was examined, and on behalf of the defendants, Exts.B1 and B2 were marked and DW1 and DW2 were examined. An advocate commissioner was taken out for local inspection as early as in the year 1996, and he filed Exts.C1 and C2 report and plan. Thereafter, finding the report of the advocate commissioner unsatisfactory, the same was remitted, and a fresh report was solicited. Later, Exts.C3 report and C4 plan were filed. On objection by the defendants, the said report and plan were remitted and Exts.C5 report and C6 plan were produced and marked. The advocate commissioner was examined as CW1. The originals of sale deed No.2577/80 of SRO, Udma and gift deed No.1196/91 of SRO, Udma were marked as third-party exhibits as Exts.X1 and X2. The trial court on the basis of the documentary evidence, framed the following issues:
"1. Whether the plaintiffs have title to the B schedule property?
2. Whether the plaintiff is entitled to recover possession of property?
2025:KER:44832 RSA NO. 1312 OF 2012 6
3. Whether the plaintiff is entitled for mandatory injunction as prayed for?
4. Relief and costs?"
3. The trial court on the basis of Exts.C5 report and C6 plan, found that the commissioner has identified the extent of the property to which the plaintiffs are entitled to and found that the plaintiffs have no property on the further south of the compound wall C marked in Ext.C6 plan. It was further found that the Commissioner has not identified the entire extent of the property with that of one Thambayi Amma and also with reference to Ext.B1 partition deed. Accordingly, the suit was decreed in part allowing the plaintiffs to recover item No.2 of the plaint B schedule property alone. In respect of the other properties, the suit was dismissed. As against the dismissal of the suit, insofar as item Nos.1 and 3 are concerned, the plaintiffs preferred AS No.94/2008 on the files of the Additional District Court (Ad hoc-II), Kasaragod. By judgment and decree dated 30.6.2012, the first appellate court reversed the findings of the trial court and decreed the 2025:KER:44832 RSA NO. 1312 OF 2012 7 suit as against item Nos.1 and 3 of the plaint B schedule. Pertinently, the defendants did not file an appeal against the decree of the trial court as regards item No.2 and hence, the same has become final. Aggrieved by the judgment and decree of the first appellate court in dismissing the suit as regards item Nos.1 and 3, the defendants have come up with the present second appeal.
4. Heard Sri.Suresh Kumar Kodoth, the learned counsel appearing for the appellants and Sri.R.Ananthakrishnan, the learned counsel appearing on behalf of the respondents, representing Sri.R.S.Kalkura.
5. The learned counsel appearing for the appellants, Sri.Suresh Kumar Kodoth, opened his submissions by referring to the report of the advocate commissioner and also the findings rendered by the trial court. It is the specific case of the learned counsel for the appellants that the commissioner had not identified the property with reference to the entire documents. In support of his contention, he would refer to the oral testimony of DW2, the surveyor, who was 2025:KER:44832 RSA NO. 1312 OF 2012 8 present at the time of inspection by the advocate commissioner. He would further point out that since the report of the advocate commissioner was riddled with several infirmities, it was not possible for the first appellate court to have reversed the findings of the trial court. The first appellate court erred egregiously in finding that the appellants did not examine the advocate commissioner, and even if the defendants had not examined the advocate commissioner, it was the duty of the plaintiffs to have proved their case.
6. Per contra, Sri.R.Ananthakrishnan, the learned counsel appearing for the respondents/plaintiffs, would submit that the first appellate court has rightly appreciated the facts properly and in the absence of any contention as regards the perversity in the appreciation of facts by the first appellate court, the appeal under Section 100 is not maintainable. According to the learned counsel, the report of the advocate commissioner was marked with consent and therefore, the appellants cannot raise any such objection as regards Ext.C5 report. He would draw the attention of this Court to the proceedings dated 2025:KER:44832 RSA NO. 1312 OF 2012 9 14.10.2004 of the trial court. It is the specific case of the learned counsel that the advocate commissioner had specifically found that the property has been demarcated with reference to the title deed, namely Ext.B1. It is also pointed out that even in Ext.C3 report and C4 plan the property was identified with reference to Ext.B1. The trial court disbelieved the report of the advocate commissioner by taking out a stray sentence in the oral testimony of PW1 that there is no physical boundary between the properties. The title of the plaintiffs having been accepted, it was not possible for the defendants to have raised the objections as now being sought to be raised.
7. I have considered the rival submissions raised across the bar and have perused the records and the judgments of the trial court.
8. When the appeal was admitted, this Court by order dated 21.1.2013 framed the following substantial questions of law:
"A. Whether the lower appellate court was justified in granting a decree for surrender of possession of items 1 and 3 of plaint B schedule property, in reversal of the finding of the trial court, in the absence of proper identification of the 2025:KER:44832 RSA NO. 1312 OF 2012 10 property with reference to the description of the property as per the title?
B. Has not the lower appellate court committed an error of law in acting on mere observation of the Commissioner regarding the existence of physical boundaries, ignoring the overwhelming evidence including the admission of the plaintiffs to the contrary, and grant the relief? C. Whether the lower appellate court was right in holding that by Exhibit C5 and C6 the identity of the property was proved, without regard to the serious and fundamental defects noticed therein canvassed and established by the defendants in the course of proceeding under order 26 Rule 10 CPC?
D. Whether the lower appellate Court in exercise of its jurisdiction could validly reverse the decree of the trial court, in the absence of the finding of the trial court being shown to be illegal, perverse and contrary to evidence?"
9. The prime consideration which this Court must bestow upon is, as regards the finding of the first appellate court that the 2025:KER:44832 RSA NO. 1312 OF 2012 11 property has been identified with reference to Ext.B1 partition deed. In this regard, it is pertinent to mention that the advocate commissioner has specifically reported in Ext.C5 that the property has been identified with reference to the entire title documents. As per the report of the advocate commissioner and also in the light of Exts.X1 and X2 deeds, the total extent of the property to which the defendants are entitled to have in possession is around 2.10 acres of land. Admittedly, the property was measured out with the assistance of a taluk surveyor with field measurement book and village records. In Exts.C5 report and C6 plan, it is noticed that item No.2 is in RS No.303-1A2C and item No.3 is comprised in RS No.303-1A2G1. It has come out in evidence that the defendants have not filed any serious objection to Exts.C5 and C6 and have not examined the advocate commissioner. Though infirmities pointed out by the defendants in their objection weighed much force with the minds of the trial court, the appellate court found otherwise. The main concern of this Court is regarding the sustainability of the objection raised by the defendants.
2025:KER:44832 RSA NO. 1312 OF 2012 12 The learned counsel appearing for the appellants would point out that the infirmities which were found in Exts.C3 report and C4 plan were carried forward to Exts.C5 and C6. There was no occasion for the defendants to examine the advocate commissioner, since the report found favour with the trial court.
10. It is true that, the objections of the defendants found favour with the trial court. However, on a perusal of the objections filed by the defendants, it is seen that no substantial objection was raised or even attempted to be raised. What is stated by the defendants is that the measurements are not correct. It is not even pleaded that the properties have not been identified by the advocate commissioner with reference to Ext.B1.
11. Order-XXVI Rule 10(3) of the Code of Civil Procedure deals the power of the court to examine the commissioner in person. Though a reading of sub-Rule (3) to Rule 10 of Order-XXVI CPC would reveal that it is basically for the court to examine the advocate commissioner if found necessary, in the light of the objections raised by the 2025:KER:44832 RSA NO. 1312 OF 2012 13 defendants and also what is attempted to be projected before this Court, it is inevitable for this Court to conclude that it was incumbent upon the defendants to have called for the examination of advocate commissioner to test the veracity of his findings in Ext.C5 report. The failure to do so is fatal, inasmuch as there is no substantive proof regarding the assertion made by the defendants in their objection before the trial court.
12. What is attempted to be projected by the appellants as regards the infirmities in Exts.C5 report and C6 plan, is the statement of DW2, who was examined before the trial court. DW2 in his oral testimony stated that the advocate commissioner had not measured out the entire property. But a reading of Ext.C5 report would show that there is a specific assertion by the advocate commissioner that he had measured the entire property with reference to the partition deed. In this context, it is to be noted that under sub-Rule (2) to Rule 10 of Order-XXVI CPC, the report is a piece of evidence in the suit. A mere statement of DW2 has no probative value in the absence of 2025:KER:44832 RSA NO. 1312 OF 2012 14 corroborative evidence as regards the recording of the fact by the advocate commissioner that he had measured out the entire property as per the partition deed. It is in this context that the failure of the defendants to examine the advocate commissioner must be viewed.
13. In the considered view of this Court, the trial court failed miserably to take note of this legal position of law flowing out of the interpretation of sub-Rules (2) and (3) to Rule-10 of Order-XXVI CPC. On the contrary, the first appellate court has correctly appreciated the fact and found that the report of the advocate commissioner has a high probative value. Therefore, this Court is of the considered view that the finding of the first appellate court based on the report of the advocate commissioner is purely a question of fact and in the absence of any perversity attached to it, does not call for any interference.
14. As regards the question of law framed by this Court, this Court finds that since the advocate commissioner has identified the property and in the absence of any contra evidence adduced by the defendants and that the identity of the property being proved, the 2025:KER:44832 RSA NO. 1312 OF 2012 15 report of the advocate commissioner deserves to be accepted and therefore, answering the question of law against the appellants, it is held that the first appellate court was correct in accepting the report of the advocate commissioner in the absence of any cogent evidence adduced by the defendants to disprove the contents of the report and the plan.
Resultantly, this Court finds that the questions of law raised in the appeal must be answered against the appellants. Accordingly, the appeal fails and the same is dismissed, confirming the judgment and decree dated 30.06.2012 in AS No.94/2008 of the Additional District Court (Ad hoc-II), Kasaragod.
No costs.
Sd/-
EASWARAN S. JUDGE jg