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2025 DIGILAW 2378 (KER)

Abhilash Asok v. Aruna Mohanan

2025-09-08

K.NATARAJAN

body2025
JUDGMENT : K. Natarajan, J. This Original petition is filed by the petitioners/defendant No.1,3 and 4 (except 2 nd defendant) by challenging the order passed by the Munsiff Court, Punalur in I.A No. 5/2024 in O.S No. 139/2016 dated 15.10.2024. 2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent. 3. The case of the petitioner is that the respondent filed suit for declaration and fixation of boundary, claiming the Land Survey No. 845/4/5 measuring 43 cents as well as 11 cents said to be claimed right through a gift deed as well as a will said to be executed by the sister of the plaintiff. After the filing of the suit, the defendants Nos. 1, 3, and 4 filed a written statement with a counterclaim by claiming 35 cents of property said to be purchased from the grandmother under the sale deed dated 11.06.2010 and also stated 8 cents of land has been gifted to the son of the plaintiff, who is the second defendant. During the trial the commissioner has been appointed on the application filed by the plaintiff, and the commissioner is said to have surveyed the land with the help of the surveyor and filed a report. Subsequently the petitioner said he filed this application for remitting back the commissioner's report, which came dismissed, hence, the petitioner is before this Court. 4. The learned counsel for the petitioner has contended that the commissioner did not properly verify the spot, and he has mentioned various properties without mentioning the name of the defendant. The defendant's property has not been identified by the commissioner. The one side of the A schedule property, the defendant property, was also situated but was not properly identified. Therefore, the petitioner filed an objection along with an application for remitting back the commission report, which came to be dismissed by the trial court, which is not correct. In order to determine the rights of the parties, especially the defendants, it is necessary to remit back the commission report for a fresh commission report. Therefore, they prayed for allowing the petition by setting aside the order. 5. Per contra, the learner counsel respondent supported the order of the trial court and contended that once the commission has been appointed, the commissioner has visited the spot. Therefore, they prayed for allowing the petition by setting aside the order. 5. Per contra, the learner counsel respondent supported the order of the trial court and contended that once the commission has been appointed, the commissioner has visited the spot. The petitioner has not filed any work memo to the commissioner to identify the properties as per his document. Even after submission of the commission report, the petitioner did not file any objection to the commission report, and after examination of the commissioners as PW1 and PW2, the petitioner also cross- examined the commissioners and kept quiet. Thereafter the petitioner filed an application to recall the commissioners' evidence, which was dismissed. The same was not challenged, and once again the present application was filed for remitting back the commission report for nothing but reviewing the order. Therefore, the trial court rightly dismissed the application. The petitioner has not filed any work memo and has not filed any objection to the commission report and has not even produced any document for the commissioners when he went to the spot the question of remitting back the commission report does not arise. This court has already given direction to the trial court to dispose of both suits, which included another suit filed by the sister of the plaintiff in O.S. No. 165/2017, where the cancellation of the gift deed has been challenged and that is also pending. Both suits are tried together. A direction was issued to dispose of these suits within 8 months by the Coordinate bench of this Court. Therefore, the petitioner filing the application is dragging the matter it should not be allowed. Hence, we pray for dismissing the petition. 6. Having heard the arguments and perused the records. 7. The point that arises for my consideration is, 1. Whether the order under challenge call for any interference? 8. On perusal of the records, which reveals the plaintiff filed a suit claiming the right over the property measuring 33 cents said to be got through the bequeathing of will by her elder sister and the elder sister said to be obtained the said property from her mother through gift deed. 8. On perusal of the records, which reveals the plaintiff filed a suit claiming the right over the property measuring 33 cents said to be got through the bequeathing of will by her elder sister and the elder sister said to be obtained the said property from her mother through gift deed. And it is also came to know the knowledge of this Court that subsequent to the execution of gift deed in favour of the plaintiff, the mother said to be cancelled the gift deed, then she said to be executed a sale deed in favour of defendant no. 1 measuring 35 cents and 8 cents said to be gifted to the son of the very plaintiff, who is defendant no. 2 in the suit. The petitioner being the defendant nos. 1, 3 and 4 also said to be filed written statement along with the counter claim by claiming the 43 cents of the property as per the schedule to the counter claim produced herein ( Though the defendant no. 1 claimed 35 cents of property said to be purchased on 11.06.2010 from the the original owner, Thangamma, who is the mother of the plaintiff as well as defendant no. 1). Of course the defendant also filed a counter claim, claiming the right over the property. But the suit is for declaration as well as the fixation of boundary to the ‘A’ and ‘B’ schedule property. The ‘A’ schedule property is measuring 43 cents and the ‘B’ schedule property is measuring 11 cents in Survey No. 845/4/5. It is not in dispute the counter claim the defendants also claimed the same property, ‘A’ schedule property, as their property, as per the description made in the schedule of the counter claim. Of course, under sale deed for only 35 cents, it is mentioned by the learned counsel herein. There is no dispute in respect of ‘B’ schedule property where the plaintiff said to be obtain the property through family partition. The dispute is only in respect of 43 cents of the property, which is scheduled as A scheduled by the plaintiff. The same property is claimed by the defendant in the counter claim. Thereby the Commissioner has been appointed and the Commissioner visited the spot, verified the documents of the plaintiff and filed the Commissioner report. The dispute is only in respect of 43 cents of the property, which is scheduled as A scheduled by the plaintiff. The same property is claimed by the defendant in the counter claim. Thereby the Commissioner has been appointed and the Commissioner visited the spot, verified the documents of the plaintiff and filed the Commissioner report. Admittedly the petitioner being a defendant not produce any document to show they participated in the Commissioner's when he visited the spot or verified the spot and also no documents produced before the court to show they have filed a work memo to the Commissioner for verifying the spot or fixing the boundary as per the documents of the defendant. And admittedly, after submission of the Commissioner Report, again the defendant failed to file objection on the Commissioner report. However, the Commissioner has been examined as PW1 and PW2 that is Advocate Commissioner as PW1 and the Survey Commissioner as PW2 on two different dates. The petitioner also cross examined the Commissioner’s even at that time they have not brought any evidence to show the commissioner report is wrong and the commissioner not acted upon their work memo and prepared the commissioner report as per the documents produced by the defendant. Ultimately the petitioner failed to appear before the court by filing the objection against the commissioner report as well as bring out any lacunae in the commission report where the plaintiff case is only for declaration of the title of 43 cents of land as well as 11 cents of land as ’A’ schedule property where the Commissioner fixed the boundary as ‘A’ schedule property. It is not the case of the plaintiffs or the defendant that the property claimed by the defendant is altogether different property from ‘A’ schedule property. It is clear case of the defendant that the defendant is also claiming the ‘A’ schedule property through the sale deed executed by the mother after cancelling the gift deed executed in favour of the plaintiff’s elder sister. Such being the case, there is no confusion in the property, as both petitioner as well as defendants claims ‘A’ schedule property is one and the same under the two different documents from the common ancestors, that is, Thangamma. It is needless to say that Thangamma is said to be having two daughters and one son. Such being the case, there is no confusion in the property, as both petitioner as well as defendants claims ‘A’ schedule property is one and the same under the two different documents from the common ancestors, that is, Thangamma. It is needless to say that Thangamma is said to be having two daughters and one son. The said Thangamma said to be executed a gift deed in favour of the plaintiff's elder sister Hymavathi. And subsequently the Thangamma said to be cancelled the gift deed in favour of the Hymavathi. and the said Hymavathi also filed a suit in OS No. 165/2011 for declaring the cancellation of the gift deed as null and void, that case is also pending. Based upon the gift deed, the elder sister of the plaintiff said to be executed will, that is the Hymavathi executed will, in favour of the plaintiff. So the plaintiff claims the same property as 43 cents. Whereas the defendant nos. 1, 3 and 4 also claims the same property. On the protest that the Thangamma though executed gift deed in favour of the Hymavathi, but she has cancelled the gift deed, then she has executed a sale deed on 11.06.2010 in favour of the first defendant for 35 cents of land and another 8 cents of land said to be gifted in favour of the defendant no. 2 who is none other than the son of the plaintiff (the defendant no.2 placed ex parte not contesting the matter). Such being the case, the property claimed by both the plaintiff as well as the defendant is one and the same, that is ‘A’ scheduled property. Therefore, until the Hymavathi declared as owner of the property, the will claimed by her cannot be valid. Therefore, the suit in O.S.No. 165/2011 is a base documents for the right of the plaintiff as well as the defendant. Once the court declares the cancellation of gift deed is invalid, then the plaintiff will gets the right over the property. If the Hymavathi fails to prove the case that cancellation as null and void, then the defendant will gets the property under his counter claim or suit of the plaintff may be dismissed. Such being the case, I’m of the view there is no confusion in respect of boundary in ‘A’ Schedule property measuring 43 cents. If the Hymavathi fails to prove the case that cancellation as null and void, then the defendant will gets the property under his counter claim or suit of the plaintff may be dismissed. Such being the case, I’m of the view there is no confusion in respect of boundary in ‘A’ Schedule property measuring 43 cents. And there is no dispute in respect of ‘B’ schedule property. Such being the case even the commissioner report is remitted back for the purpose of fresh consideration or considering the same, fixing the ‘A’ schedule property is the same property claimed by both plaintiff as well as defendant. Such being the case the trial Court make an endavour to dispose the suit on merits even without going to the documents of the defendant and even though he has not filed any objection but the court has to declare whether the plaintiff is entitled for the relief sought in the suit for 43 cents of land. Such being the case, the application filed by the petitioner for remitting back the commission report is not required. It is needless to say in case if the court wants to pass decree for counter claim, if it is necessary to identify 35 cents or 8 cents of land given to the first and second defendants, then the trial court make an endeavor to direct the commissioner to file a report for granting decree in favour of the defendants in the counter claim. Even though the defendant not produced any work memo or objected, but in order to determine the rights of the parties, if the court below feels it is necessary it has liberty to appoint the Commissioner to identify the property of the defendant claimed under counterclaim. This petition filed by the petitioner challenging the impugned order is hereby dismissed.