Kalukurumban v. Sarojini Amma — 1997 DIGILAW 61 (KER)

Judgment :- Ramachandran, J. This second appeal arises from the judgment and decree of the Additional Sub Judge of North Parur in A.S.No. 213/87 which arose from the judgment and decree of the Munsiff of Perumbavoor in O.S. No. 539/84. (Paras 2 to 6 omitted being appreciation of facts) 7. WhenthemattercameupinappealbeforethelowerappellateCourt.theplaintiff filed petition to send out a fresh commissioner. That was allowed by the lower appellate Court without setting aside Exts. C1 and C1 (a). Further, the self-same commissioner was not sent and another commissioner was sent. That Commissioner was examined as DW. 4. DW. 4 prepared Ext. C2 report and Ext. C2(a) plan. Thus, alleging that the order of injunction was violated by the defendants another commissioner was sought to be sent by a separate petition. The lower appellate Court allowed it and a third commissioner was deputed. Thus, the 3rd commissioner prepared Ext. C3 report and Ext. C3(a) rough sketch. That commissioner was examined as PW. 4 before the lower appellate Court. DW. 3 was the Village Officer who was present and assisted DW. 4 at the time of his inspection. The judgment of the lower appellate Court shows that all the reports and plans were correct. Under point No. 3 raised by the lower appellate Court regarding the identity of the property, the lower appellate Court held that the second commissioner was sent for better elucidation and identification of the plaint schedule property. The lower appellate Court held that Ext. Cl report was correct and that the commissioner did not find any discrepancy of with reference to the boundaries as shown in Ext. C2 report. The lower appellate Court relied on Ext. C3(a) plan to show that the eastern boundary of the plaint schedule property was shown as the property of Moideen and that no objection was raised against the demarcation of the property. Thus, the lower appellate court held that the facts elucidated by the commissioner in Ext. C3 also supports the case of the plaintiff that the eastern boundary of this property is the property of Moideen. Then the lower appellate Court proceeded and stated that by virtue of the identification made in Exts. Cl to C3, it could be found that the northern boundary of the property which belonged to the plaintiffs father was originally road and now the P.V.I, canal. Then the lower appellate Court proceeded and stated that by virtue of the identification made in Exts. Cl to C3, it could be found that the northern boundary of the property which belonged to the plaintiffs father was originally road and now the P.V.I, canal. In another portion of the same judgment, the lower appellate Court held that from Exts. C1 to C3, it is clear that a portion of the southern property is the property owned by defendants 1 and 2 and that property covered by Exts. A7 and A8. It was also held that the identification made by the commissioner in Ext. Cl(a) and C2(a) tallied with the plaint schedule descriptions in Exts. Al to A4. Itis clear that the lower appellate Court relied on Exts. C1 to C3. Towards the end of Paragraph 7 of the judgment of the lower appellate Court, it was held that the identification made through Ext. Cl(a) and the details supplied by Ext. C1 are found to be correct and there was little chance to have doubt about the veracity of that report. Thus, the view of the lower appellate Court was that the property was properly identified by Exts. Cl and Cl(a). If that was so, there was no necessity to send a second commission. But the lower appellate Court proceeded to state that the plaint schedule property has been identified to the satisfaction of the Court through Exts. C2 and C2(a) as well. Finally towards the end of paragraph 8 of the judgment the lower appellate court held that the plaintiff proved his title over an extent of 1 acre and 93 cents shown in red shade and blue shade of Ext. C2(a) plan out of the plaint schedule property. Thus, the lower appellate Court took Exts. C2, C2(a) C3 and C3(a) as additional pieces of evidence for the purpose of proper identification of the plaint schedule property. It is clear that the procedure adopted by the lower appellate Court is illegal and unsustainable. It is the well-settled principle that without setting aside the first report and plan, it was not proper to call for another report and plan. Similarly, there was no reason mentioned by the lower appellate court for not sending the self-same commissioner for the second report. It is the well-settled principle that without setting aside the first report and plan, it was not proper to call for another report and plan. Similarly, there was no reason mentioned by the lower appellate court for not sending the self-same commissioner for the second report. It is true that the lower appellate court is entitled to call for additional evidence as held by the apex court in the decision reported in 1994(4) SCC 659 (Billa Jagan Mohan Reddy v. Billa Sanjeeva reddy ). There it was held that the appellate court can receive additional evidence if it considers to be needed in the interest of justice. The records show that no reason was stated by the lower appellate court for sending a second commissioner. If the view of the lower appellate court was that Ext. Cl and Cl(a) were not helpful for proper identification of the plaint schedule property, they ought to have been set aside before sending a second commissioner. Similarly reason is to be stated as to why the self-same commissioner was not sent. It is to be noted that the Commissioner is an officer of the Court and the Commissioner cannot be changed without assigning any reason. It is held in the decision reported in AIR 1976 SC 1057 (Natha Singh v. Financial Commissioner, Taxation Punjab) that the discretion of the appellate court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in 0. 41, R.27 of the Code of Civil Procedure. It was further held that if the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The decision reported in AIR 1983 Madras 344 (Pappayee Ammal v. Subbulakshmi Ammal) held that the appointment of a commissioner in appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by 0.41 R.27 of CPC which relates to let in additional evidence. The decision reported in AIR 1983 Madras 344 (Pappayee Ammal v. Subbulakshmi Ammal) held that the appointment of a commissioner in appeal is a rarity and is seldom resorted to. Such an appointment is not authorised by 0.41 R.27 of CPC which relates to let in additional evidence. It was further held that where a commissioner was appointed by the trial court to make local inspection of the suit property and no objection to his report was raised at the stage of trial before the trial court, the appointment of another commissioner by the appellate court during the pendency of the appeal for the very same purpose for which the commissioner had been appointed by the trial court would be invalid as it is neither in the interests of justice nor as it recognised by the provisions of 0.41 R.27 or under 0.26 R.9 read with S.107 of CPC. The Court referred to the earlier decisions in AIR 1969 Madras 144 (T.R. Rajagopala lyer v. T.R. Ramachandra Iyer) and 1979 (1) Madras Law Journal 358 (Arumugham v. Arumugham ). The Division Bench of this court had occasion to deal with a similar matter in the decision reported in 1985 KLT 144 (Swami Premananda Bharathi v. Swami Yogananda bharathi ). There it was held that the first commissioner's report and proceedings should be set aside for reasons to be recorded and men only the Court can proceed to appoint another commissioner to do the work. It was held that it is a wholesome rule of law based on public policy. The Division Bench was of the view that only if the court had reason to be dissatisfied with the proceedings and report of the first commissioner for reasons stated, it can appoint a second commissioner for further enquiry. This was held to be a condition precedent. It was held that the provision contained in O.XXVI R.12 CPC is vital. It was held that strict adherence alone will facilitate speedier, effective and cheaper administration of justice. Thus, it was held that the appointment of the second commissioner and the reports filed by him without setting aside the first commissioner's report is wholly illegal and without jurisdiction. It was held that it is a jurisdictional error. It was held that strict adherence alone will facilitate speedier, effective and cheaper administration of justice. Thus, it was held that the appointment of the second commissioner and the reports filed by him without setting aside the first commissioner's report is wholly illegal and without jurisdiction. It was held that it is a jurisdictional error. The Division Bench relied on the earlier decisions of the apex Court reported in AIR 1971 SC 2355, and in AIR 1940 Madras 756, AIR 1972 Madras 421 and AIR 1976 Allahabad 1. These decisions held that if the Court was not competent or acted unauthorisedly in appointing the second commissioner, the report so obtained cannot be looked into. The Court held that the act of calling for a second report without setting aside the earlier report is an illegal act totally in excess of jurisdiction. As I stated earlier, the lower appellate court held that the commissioner had properly identified the plaint schedule property in Ext. C1 (a) plan and property mentioned it in Ext. C1. If that was true, there was no necessity for sending out a second commissioner. But the reasoning of the lower appellate court is 'for better appreciating and elucidating the identity of the property.' A second report cannot be called for by sending another commissioner for the purpose of cross-checking the previous report and plan. Before sending out a second commissioner, it was the duty of the court to consider judicially the first report and plan and if only it was satisfied that the first report and plan are not helpful to decide the correct identity of the property, then only a second commissioner can be sent. Thus reason should be mentioned as to why a second commissioner was sent. By stating those reasons, the earlier report and plan should be set aside. The Court cannot send a second commissioner to satisfy the request of the applicant. If the lower appellate court was of the opinion that Exts. C1 and C1 (a) were not helpful, that reason should be mentioned for sending out a second commissioner. Thus the procedure adopted by the lower appellate court is totally illegal. It is seen that a third commissioner was sent to ascertain whether there was violation of the order of injunction. That third commissioner prepared Ext. C3(a) sketch. The lower appellate court relied on the details shown by the commissioner in Ext. Thus the procedure adopted by the lower appellate court is totally illegal. It is seen that a third commissioner was sent to ascertain whether there was violation of the order of injunction. That third commissioner prepared Ext. C3(a) sketch. The lower appellate court relied on the details shown by the commissioner in Ext. C3(a) sketch for fixing the proper identity of the plaint schedule property. Thus according to the lower appellate court Exts. C1 to C3(a) are acceptable. Such a view cannot be sustained. Itis to be noted that by sending a second commissioner, the first report and plan are superseded. Thus, Exts. Cl and Cl(a) are superseded by Exts. C2 and C2(a). The decision reported in 1987 (1) KLT Short Notes 21, Case No. 36 (Matha v. Kalliani) held that the provisions of O. XLI R.27 of CPC are not intended to allow a litigant who has been unsuccessful before the lower court to fill up loopholes and omissions. It was further held by this Court that the appellate court is not expected to allow a party to supplement the evidence already adduced by permitting him to produce more documents. Thus, before allowing a party to adduce supplementary evidence, he must satisfy that there was sufficient reasons for the non-production of the evidence in the trial court. The trial court held that Exts. Cl and Cl(a) were not acceptable to establish the identity of the plaint schedule property with reference to Exts. Al to A4. It was thus that the plaintiff filed petition before the lower appellate court to send out a second commissioner. Thus, as Exts. Cl and Cl(a) are not helpful and as Exts. C2 and C2(a) were illegal the effect is that there is no evidence to establish the correct identity of the plaint schedule property. Thus, it is necessary that the matter is remanded to the trial court for calling for a second report and plan by sending out the self-same commissioner or sending a fresh commission for reasons stated for the purpose of getting a proper report and plan after identi lying the plaint schedule property with reference to Exts. Al to A4. 8. Point No. 3: The lower appellate court granted a decree for recovery of possession of 1 acre and 93 cents on the ground that the plaintiff has got title over that property. Al to A4. 8. Point No. 3: The lower appellate court granted a decree for recovery of possession of 1 acre and 93 cents on the ground that the plaintiff has got title over that property. The case of the appellants was that it was puramboke land. But the lower appellate court held that it was patta land. Ext. A5 was the certified copy of the thandaper account issued by the Taluk Officer, Kunnathunadu regarding Govindan Nair who was the father of the plaintiff. Similarly, Ext. A6 is the certified copy of the thandaper account in the name of Sankaran Nair (the plaintiff). The thandaper number of Govindan Nair is 885 and that of the plaintiff is 701. The plaintiff has a case that he got title as per Exts. Al to A4. It is seen that as per Exts. A7 and A8 a portion of the property was purchased by defendants 1 and 2 through the Land Tribunal. Ext. A9 is the tax receipt dated 27.9.1973 in the name of the plaintiff. Ext. A9 (a) is also a similar receipt dated 2.12.1983. A portion of the property was acquired for the purpose of P.V.I, canal as seen from Ext. A10, which is a certified copy of the valuation statement. Ext. All is the certified copy of the revenue list of survey No. 391-1C having an extent of 19 acres and 98 cents of Vazhakkulam Village. There was are-survey and Ext. A18 is the copy of revenue list for Sy.No. 512. Its old survey number was Sy. 319/1C of Vazhakkulam Village. Ext. A19 was the copy of sketch regarding Sy. No. 512/2. Thus, the present case of the plaintiff is that the plaint schedule property is in Sy. No. 512/2 of Vazhakkulam Village. Ext. A20 is the tax receipt dated 12.6.1987 in the name of the plaintiff. The appellants relied on Ext. B1 certificate issued by the Taluk Officer, Perumbavoor i n favour of the first defendant on 16.1.1975. They have no case that their names are shown in the thandaper. S.2 clause (iv) of the Kerala Survey and Boundaries Act 1961 defines the "registered holder of any land" as the person in whose name the land in question is registered in the Government accounts of the village. Clause (v) of S.2 defines "registered land' as any land the proprietory right of which does not vest in the Government. S.2 clause (iv) of the Kerala Survey and Boundaries Act 1961 defines the "registered holder of any land" as the person in whose name the land in question is registered in the Government accounts of the village. Clause (v) of S.2 defines "registered land' as any land the proprietory right of which does not vest in the Government. Considering these definitions and considering the facts that the respondents have right over the plaint schedule property as legal representatives of Sankaran Nair on whose name, the thandaper stands and in the light of Exts. Al to A4 it is clear that the respondents have title now over the plaint schedule property. The learned counsel appearing for the respondent cited the decision reported in AIR 1996 SC 2786 (Durga Das v. The Collector). This decision held that the claimants cannot claim compensation under the Land Acquisition Act merely on the basis of mutation entries. Another decision in the same volume reported in AIR 1996 SC 2823) (Smt. Sawarni v. Smt. Inder Kaur) held that the appellate court cannot set aside the finding of the trial court merely on the ground of mutation entry in favour of the defendant. A copy of the gazette notification under the Survy and Boundaries Act of 1961 was produced by the learned counsel appearing for the respondents to show that resurvey was made of all the properties in Ernakulam District as per S.14 of the Act and that the boundaries were properly demarcated in resurvey block Nos. 23 and 24 and other properties and all other properties in Kunnathunad Taluk in Ernakulam District. Similarly all the resurvey numbers in Cheranellur Village are also properly identified. This notification is dated 31.7.1984 with No. Dl- 6343/83. The defendants admitted the title of the plaintiff in column 10 of page 3 of Exts. A7 and A8. We find the names of Parvathy, who is the mother of the plaintiff and Krishnan Nair, who is the brother of the plaintiff. Ext. Al is the release deed executed by Parvathy Amma and Nandini Amma who are the mother and sister of the plaintiff. Ext. A2 is the release deed executed by the other two sisters of the plaintiff by name Narayani Amma and Subhadra Amma. Ext. A3 is the release deed executed by Krishnan Nair, who is the brother of the plaintiff. Ext. Ext. A2 is the release deed executed by the other two sisters of the plaintiff by name Narayani Amma and Subhadra Amma. Ext. A3 is the release deed executed by Krishnan Nair, who is the brother of the plaintiff. Ext. A4 is the gift deed executed by the mother of the plaintiff in favour of Sankaran Nair. At page 8 of Ext. A7 it is noted that the sign2atures of the parties were put in the presence of advocate. Their names are shown in column 10 of page 3 of Ext. A8. In column No. 5 at page 1, the name of the second defendant Kumaran is shown. The signatures are shown in page 5 of Ext. A8. It is to be noted that in Paragraph 3 of the additional written statement no independent right was claimed and adverse possession alone was set up. The trial court held that the defendants trespassed into the plaint schedule property after the disposal of the appeals filed from the common judgment in O.S. No. 3/76 and O.S. No. 4/76. As I stated earlier Exts. A15 and A16 are the decrees in the two appeals and Ext. B2 is the common judgment of the appellate court. Then the plaintiff filed IA No. 1919/84 to maintain status quo. But it was allowed partly. Stay was obtained in CRP No. 2546/86 of this court. But later the stay was vacated. Thus it is clear that the defendants trespassed into the plaint schedule property on 3.1.1985 as alleged in the plaint. That necessitated the amendment of the plaint adding the prayer for recovery of possession on the strength of title as per IA No. 1948/85. In the decision reported in 1989 (1) ILR 218 (Appitkutly v. Kuniyil achuthan ), the Division Bench of this Court held that the entries in the revenue records can be relied on in the absence of proof that these entries are fraudulent. This was so held relying on S.35 of the Indian Evidence Act. The decision reported in AIR 1958 Kerala 335 (Karthiayani Filial, Gouri Filial v. Janaki Filial Lakshml Filial) held that Puduvel Registry in the name of certain person shows presumption of his ownership unless it is rebutted by any other evidence. It was further held that the burden of proof was on the other person who claimed that the entry in the revenue records are not correct. It was further held that the burden of proof was on the other person who claimed that the entry in the revenue records are not correct. In the present case, it is not shown by the defendants that the entry in the revenue records is incorrect. The apex court held in the decision reported in AIR 1977 SC 113 (Commissioner of 'Wealth Tax v. Court of Wards, Paigah) that the entries in the revenue records can be relied on as prima facie revidence showing title in the absence of evidence to the contrary. The defendants in this case failed to show that the plaint schedule property is poramboke land. Another decision reported in AIR 1974 SC 1178 (Shikharchand Jain v. Digamber Jain Praband Karani Sabha) held that the entries in Khasra can be presumed to be correct in the absence of evidence to the contrary. Ext. A18 is the Revenue list regarding the present survey number after resurvey and Ext. A19 is the sketch. There was no objection to Exts. A18 and A19. Thus they have become final. Thus I am of the view that the plaintiff established his title over the plaint schedule property subject to the proof of his identity. The learned counsel appearing for the appellants had argued that in view of the decree in the earlier suit, the present suit was barred by res judicata. It is to be noted that the prayer in the earlier suit was for an injunction and it was dismissed on the ground that identity was not proved. Thus, the second suit for declaration of title and recovery of possession is not barred by res judicata since the cause of action in both the suits are distinct as held by the apex court in the decision reported in AIR 1993 SC 1756 (Sri. Inacio Martins v. Narayan Hari Naik). The same view is supported by the decision of this court as reported in 1981 KLT 700 (Kalliani v. appellate authority). Considering the facts and circumstances in this case, I am inclined to hold that the respondents as legal representatives of Sankaran Nair, have title over the plaint schedule property subject to proof of its identity. 9. The same view is supported by the decision of this court as reported in 1981 KLT 700 (Kalliani v. appellate authority). Considering the facts and circumstances in this case, I am inclined to hold that the respondents as legal representatives of Sankaran Nair, have title over the plaint schedule property subject to proof of its identity. 9. Point No. 4: As the matter is being remanded to the trial court, the parties are at liberty to let in additional evidence, if any, and the trial court is at liberty to consider as to what is the correct extent of the property that can be recovered and as to whether the respondents are entitled to get any buildings demolished and the respondents are at liberty to amend the plaint showing the resurvey number and adding a prayer for demolition of the buildings. The appellants are at liberty to file additional written statement and the parties are at liberty to let in additional evidence. For the above reasons, this appeal is allowed and setting aside the judgment and decree of the courts below the manor is remanded to the trial court for fresh disposal in accordance with law after giving an opportunity to the respondents to amend the plaint and take out a fresh commission to show the identity of the plaint schedule property with reference to Exts. Al to A4 after setting aside Exts. C1 to C3(a). The appellants are at liberty to file additional written statement and the parties are at liberty to let in additional oral evidence if any. The parties are to appear before the trial court on 12.3,1997. Send the lower court records of the trial court with Exts. A18 to A20 and the depositions of PW. 4, DW. 3 and DW. 4 to the trial court with a copy of this judgment. The trial court is directed to dispose of the suit as expeditiously as possible.