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2025 DIGILAW 2559 (KER)

Ashraf [Died & Lhs Impleaded] v. Suresh Kumar Vora @ Suresh Chandran

2025-09-24

EASWARAN S.

body2025
JUDGMENT : Easwaran S., J. The defendants in a suit for injunction concurrently non-suited by the Principal Munsiff Court, Alappuzha, in O.S.No.299/2013 as well as by the Addl. District Court-II, Alappuzha, in A.S.No.45/2018, have come up in the present appeal. 2. The brief facts necessary for the disposal of the appeal are as follows : 2.1. The respondent herein/plaintiff obtained 3 acres and 7 cents in Survey No.698/2A, 698/2B, 698/2C, 698/2D, 698/2F, 695/3 and 695/2 of Pazhaveedu Village, Ambalappuzha Taluk as per partition deed dated 21.08.1969. In addition to this, it is claimed that he also derived right, title and interest over 10 cents of land in Survey No.698/2A. The devolution of the title is traced to a sales certificate issued by the District Court, Alappuzha in O.S.No.1/1098 in the year 1065 ME. It is further contended that the defendants, with the intention to trespass on the property and encroach upon it, threatened the plaintiff that if the plaintiff obstructs their attempt to demarcate the property through the village officials, they will be forced to trespass onto the property. 2.2. The defendants resisted the suit contending that the property owned and possessed by the defendants and other co- owners are included in the boundaries mentioned in the plaint schedule property. The plaintiff has no right, title or possession over the property and that the plaintiff is not entitled for the relief sought for. It is further contended that, the defendants’ grand father one Kunjamutti was the absolute owner of property covered by Sale Deed No.148/1085 ME. After the death of Kunjamutti and his wife, their right devolved upon her son, the defendants’ father. After the death of the defendants’ father, his right devolved upon his children, the defendants/appellants herein and the portion of the property mentioned in Sale Deed 148/1085 ME was also included in the plaint schedule property. The defendants have right and possession over 9.97 acres of property in Survey Nos.698/1A, 698/1B, 698/2A, 698/2B, 698/2C, 694/13A, 694/14B, 694/14C, 694/14D, 694/16A, 695/12, 699/10A and 699/2 as per Sale Deed No.148/1085 ME. It is also contended that his properties are also included in the Partition Deed No.628/1112 ME. 2.3. On behalf of the plaintiff, Exts.A1 to A53 documents were produced and PW1 to PW7 were examined. On behalf of the defendants, Exts.B1 to B5 were produced and DW1 to DW6 were examined. It is also contended that his properties are also included in the Partition Deed No.628/1112 ME. 2.3. On behalf of the plaintiff, Exts.A1 to A53 documents were produced and PW1 to PW7 were examined. On behalf of the defendants, Exts.B1 to B5 were produced and DW1 to DW6 were examined. Exts.C1 and C2 series are the reports and Mahazars produced by the the Advocate Commissioner. Ext.X1 series to Ext.X18 are the exhibits marked through third party, the revenue authorities. On the basis of the oral and documentary evidence, the Trial Court framed the following issues: 1. Whether the plaintiff is having possession over the plaint schedule property ? 2. Whether the plaintiff is entitled to get a prohibitory injunction as prayed ? 3. Reliefs and costs ? 2.4. The Trial Court, on appreciation of the oral and documentary evidence, especially Ext.C1 report of the Advocate Commissioner, concluded that the plaintiff has proved possession and therefore, decreed the suit. Aggrieved, the defendants preferred A.S.No.45/2018 before the Addl. District Court-II, Alappuzha. The First Appellate Court, on reappreciation of the evidence, concluded that the defendants’ predecessor did not derive any property in Survey Nos.695/2 and 698/2 and therefore, proceeded to dismiss the appeal. Aggrieved by the dismissal of the appeal by the Addl. District Court-II, the defendants have come up in the present appeal. 3. Heard, Adv.T.Krishnanunni – learned Senior Counsel, assisted by Adv.Nivedhitha Prem V., appearing for the appellants and Adv.Grashious Kuriakose, learned Senior Counsel, assisted by Adv.Jayasree K.P., appearing for the respondent. 4. On 08.03.2021, this Court framed the following substantial questions of law for consideration: 1. Whether the Trial Court and the First Appellate Court justified in arriving at the finding that the suit for injunction simplicitor is maintainable when the title of the plaintiff is disputed by the defendants. If so, is not the suit as framed is maintainable ? 2. Whether the Trial Court and the First Appellate Court went wrong in decreeing the suit without relegating the parties to file a comprehensive suit for declaration of title and consequential rights ? 3. Whether the Trial Court went wrong in not framing an issue on title and directing the parties to pay requisite court fee under Section 27A of Kerala Court Fees and Suits Valuation Acts ? 5. 3. Whether the Trial Court went wrong in not framing an issue on title and directing the parties to pay requisite court fee under Section 27A of Kerala Court Fees and Suits Valuation Acts ? 5. Adv.T.K.Krishnanunni – learned Senior Counsel appearing for the appellants, contended that the courts below misdirected itself to the entire issue raised before it. Without adverting to the basic principles governing a trial of a suit for injunction simpliciter, the Trial Court entered into a roving enquiry as regards the identity of the property and the title of the defendants. The Trial Court committed a grave irregularity in accepting Ext.C1 report, especially since Ext.C1 Commissioner Report was an exparte commission and without notice to the defendants and therefore, the same is unacceptable. As regards Ext.C2, the learned Senior Counsel – Sri.T.Krishnanunni, took strong exceptions to the manner in which the Advocate Commissioner has identified the property. According to the learned Senior Counsel, when the title of the plaintiff is disputed, a simple suit for injunction is not maintainable and that in the absence of the plaintiff seeking a comprehensive declaration as regards his title, the suit ought not have been decreed. It is further submitted that the Commissioner even on second inspection with the aid of the Surveyor failed to identify the property of the defendants with reference to Sale Deed No.148/1085 ME and Partition Deed No.628/1112 ME, despite a specific warrant being issued to the Advocate Commissioner to identify the property of the defendants with relation to the aforesaid documents. It is further submitted by the learned Senior Counsel that the reasoning given by the Commissioner for not identifying the property is nothing but a dereliction of duty on his part and certainly goes against the mandate of the warrant issued to the Advocate Commissioner. Equally so, it is contended that the Trial Court as well as the First Appelate Court erred egregiously in holding that the defendants does have title in respect of the properties covered under Survey Nos. 695/2 and 698/2. Even if there is a misdescription as regards the survey number, unless the property is measured out with relation to the four boundaries, the courts below could not have entered into such finding. 6. 695/2 and 698/2. Even if there is a misdescription as regards the survey number, unless the property is measured out with relation to the four boundaries, the courts below could not have entered into such finding. 6. Per contra, Adv.Grashious Kuriakose – learned Senior Counsel, assisted by Adv.J ayasree K.P., appearing for the respondent herein/plaintiff, submitted that the finding of fact based on the appreciation of evidence concurrently by the courts below does not call for any interference in exercise of the powers of this Court under Section 100 of the Code of Civil Procedure, 1908. It is contended that the Advocate Commissioner had verified Exts.B2 and B3 and found that the defendants have not derived any property in Survey Nos.695/2 and 698/2 and that is the reason why the Advocate Commissioner had not measured out the property. It is further submitted that, at any rate the plaintiff’s predecessors having been put in possesion of the plaint schedule property way back in 1065 ME through a court auction, a right, if any, in favour of the defendants has since been lost by adverse possession. Inasmuch as the defendants having failed to prove their possession, the Trial Court has rightly decreed the suit, which was affirmed by the First Appellate Court. 7. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and the records of the case. 8. Based on the above argument, this court by a separate order passed on 12.09.2025, framed the additional substantial questions of law as follows. 1.Whether the courts below went wrong in relying on Ext.C1 report, which is admittedly prepared without notice to the defendants. 2.Whether the advocate commissioner committed a gross irregularity in not measuring out the property covered by Exts.B2 and B3 documents despite a specific warrant issued by the Munsiff court. 3.Whether in a suit for injunction simpliciter, the title of the defendants could be gone into by the courts below. 8. On a careful consideration of the judgments rendered by the courts below, it is evident that the Trial Court has placed extensive reliance on the Ext.C1 report of the Advocate Commissioner. It is settled law that a report of an ex parte commission is not binding on the defendant unless the defendant has been put on notice regarding the inspection. On a careful consideration of the judgments rendered by the courts below, it is evident that the Trial Court has placed extensive reliance on the Ext.C1 report of the Advocate Commissioner. It is settled law that a report of an ex parte commission is not binding on the defendant unless the defendant has been put on notice regarding the inspection. A perusal of Ext.C1 shows that the Commissioner had clearly mentioned in his report that at the time of inspection, the defendants were not present. Therefore, the Trial Court grossly erred in relying on the report to find that the plaintiff is in possession. 9. Coming back to Ext.C2, it must be noticed by this Court that, despite a specific direction in the warrant issued to the Advocate Commissioner, he failed to measure out the property covered by Sale Deed No.148/1085 ME and Partition Deed No.648/1112 ME. The primary reason stated by the Advocate Commissioner is that the defendants have not derived any property in Survey Nos.695/2 and698/2. This Court fails to comprehend as to how the Advocate Commissioner could have arrived at such a conclusion, especially when it is reported that, he has specifically found that the property covered under Sale Deed No.148/1085 ME takes in property in Survey Nos.698/2 and 695/2. Therefore, the Commissioner certainly went wrong in not measuring the property as ordered by the Trial Court. 10. That apart, a perusal of the judgment rendered by the Trial Court shows that the Trial Court was not satisfied as regards the procedure adopted by the Advocate Commissioner in measuring out the property. For the best reasons known to the Trial Court, it did not deem it appropriate to delve deep into the intricacies of the procedure adopted by the Advocate Commissioner in measuring out the plaint schedule property as well as his failure to measure out the property covered by Exts.B2 and B3 documents. Certainly, this goes to the root of the matter, especially since, if the findings in Ext.C2 report are eschewed, the only evidence before the Trial court is Ext.C1 report of the Advocate Commissioner. This court has already found that the same is unacceptable in evidence. Certainly, this goes to the root of the matter, especially since, if the findings in Ext.C2 report are eschewed, the only evidence before the Trial court is Ext.C1 report of the Advocate Commissioner. This court has already found that the same is unacceptable in evidence. Therefore, at this point of time, this Court has no hesitation to conclude that the findings as regards the possession of the plaintiff over the plaint schedule property found by the Trial Court based on Exts.C1 and C2 are totally erroneous and unsustainable. 11. It is also pertinent to note that, in the written statement filed on behalf of the defendants, the title of the plaintiff in Survey Nos.698/2 and 698/2B are certainly questioned. The case of the defendants is that there is overlapping of the properties in at least two survey numbers. Therefore it was all the more reason why the Principal Munsiff Court, Alappuzha, should have set aside the Ext.C2 report of the Advocate Commissioner and ordered that the entire property of the plaintiff and the defendants covered by Exts.B2 and B3 be measured out in order to actually find the extent of property in the possession of each of the parties. At any rate, this Court is persuaded to conclude that the plaintiff did not have any cause of action to move the Principal Munsiff Court, Alappuzha, with a suit for injunction. It is not disputed before this Court that, the reason why the plaintiff instituted the suit was that the defendants were attempting to demarcate the property with the aid of the Village Officer. The plaintiff could not explain as to how the act of the defendants moving the Village Officer for demarcating the property based on Exts.B2 and B3 would constitute a cause of action for filing the suit for injunction. Apart from that, there is no reliable evidence to prove that the defendants attempted to trespass into the plaint schedule property. This Court is persuaded to hold so, because in the written statement filed on behalf of the defendants, there is a categoric assertion that they are not intending to trespass into the plaint schedule property and disturb the possession of the plaintiff under any circumstances. This Court is persuaded to hold so, because in the written statement filed on behalf of the defendants, there is a categoric assertion that they are not intending to trespass into the plaint schedule property and disturb the possession of the plaintiff under any circumstances. Therefore, in a case where a comprehensive exercise of identification of the plaint schedule property was undertaken, it was all the more incumbent upon the Trial Court to have set aside the report of the Advocate Commissioner on his failure to identify the defendants property covered by Exts.B2 and B3. 12. Resultantly, this Court finds that the substantial questions of law framed as 1 to 3 does not arise for consideration at this stage. As regards the additional substantial questions of law framed as 4 to 7 are concerned, they are to be answered in favour of the appellants and accordingly, the judgments of the courts below are required to be set aside and a remand of the matter becomes inevitable. Accordingly, this appeal is allowed by setting aside the judgment of the Principal Munsiff Court, Alappuzha, in O.S.No.299/2013 as affirmed by the Addl. District Court-II, Alappuzha, in A.S.No.45/2018. O.S.No.299/2013 shall stand restored to the file of the Principal Munsiff Court, Alappuzha and parties shall appear before the Munsiff Court on 08.10.2025. On appearance, the Principal Munsiff Court shall depute the same Advocate Commissioner, if present, to identify the plaint schedule property as well as the property covered under Exts.B2 and B3. Based on the report, the parties shall be permitted to adduce further evidence, if they are advised so. On receipt of the report, the Trial Court shall proceed with the trial of the case afresh and decide the same in accordance with the law untrammelled by the observations made by this Court in this judgment. Since the defendants have admitted before this Court that they don’t intend to trespass into the plaint schedule property and disturb the possession of the plaintiff, the parties are directed to maintain status quo till the suit is disposed of. Considering the fact that the suit is of the year 2013, the Principal Munsiff Court, Alappuzha, is directed to expedite the trial and the disposal of the suit. Considering the fact that the suit is of the year 2013, the Principal Munsiff Court, Alappuzha, is directed to expedite the trial and the disposal of the suit. As regards the question whether a comprehensive suit on title is required and whether the court fee under Section 27 A of the Kerala Court fees and Suits Valuation Act, 1959 is required to be paid or not are left open to be considered by the Munsiff Court, if a situation arises. The parties are directed to suffer their respective costs.