Sri Ramaiah Vs Sri.M.Lakshmaiah

APPELLANT NOS 1(c)(i) TO 1(c)(iii) ARE R/AT NO.35 DEVARAJ BUILDING BULLET KRISHNAPPA, THINDLU VIDYARANYAPURA BENGALURU (AMENDED AS PER THE ORDER DATED 31.08.2015)

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…APPELLANTS

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(BY M/S. SREEVATSA ASSOCIATES BY SRI.UDITA RAMESH, ADVOCATE FOR 1(a) AND 1(b); SRI.T.SESHAGIRI RAO, ADVOCATE AND SRI.SUNIL S.RAO, ADVOCATE FOR APPELLANT NO.1(c) (i) TO 1(c)(iii))

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AND:

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SRI.M.LAKSHMAIAH SINCE DEAD BY LRS.

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1(A). SMT.NAGAMMA W/O LATE M.LAKSHMAIAH AGED ABOUT 85 YEARS

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RESPONDENT NO.1(a) PASSED AWAY ON 04.02.2013 ITSELF AND HER LRS. ARE ALREADY ON RECORD AS RESPONDENT NO.1(b) TO 1(k)

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1(B). SRI.S.L.RAMACHANDRA S/O LATE M.LAKSHMAIAH AGED ABOUT 64 YEARS

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1(C). SRI.S.L.DEVARAJU S/O LATE M.LAKSHMAIAH AGED ABOUT 62 YEARS

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1(D). SMT.SAVITHRAMMA W/O LATE S.L.MADDAIAH

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AGED ABOUT 50 YEARS

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1(E). SRI.M.MADHU S/O LATE S.L.MADDAIAH AGED ABOUT 32 YEARS

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1(F). SMT.M.NAGAVENI D/O LATE S.L.MADDAIAH AGED ABOUT 29 YEARS

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1(G). SRI.M.SHRIDHAR S/O LATE S.L.MADDAIAH AGED ABOUT 26 YEARS

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1(H). SRI.S.L.VENUGOPAL S/O LATE M.LAKSHMAIAH AGED ABOUT 51 YEARS

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1(I). SRI.S.L.JAGANNATH S/O LATE M.LAKSHMAIAH AGED ABOUT 38 YEARS

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PROPOSED LRS. RESPONDENT NO.1(a) TO 1(i) R/AT SUBBAYYA PALYA, BANASWADI MAIN ROAD M.S.NAGARA ROAD POST, BANGALORE - 560 033

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1(J) SMT.S.L.LAKSHMIDEVI D/O LATE M.LAKSHMAIAH W/O SRI.GNANENDRA REDDY AGED ABOUT 55 YEARS R/AT NOno.195, 6^TH CROSS ALADAMARA ROAD SUBBAIAHNA PALYA BANASWADI MAIN ROAD M.S.NAGARA POST BENGLAURU - 560 033

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AMENDMENT IS CARRIED OUT AS PER THE ORDER DATED 14.06.2017 AND

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ORDER DATED 08.04.2019 PASSED BY THIS HON'BLE COURT

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SRI. A. LAURENCE SINCE DECEASED BY HIS LRS.

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2(A). SMT.RANI W/O LATE A.LAURENCE AGED ABOUT 38 YEARS

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2(B). KUM.RENA W/O LATE A.LAURENCE AGED 20 YEARS

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2(C). MARIA D/O LATE A.LAURENCE AGED 5 YEARS

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L.R.NO.2(c) IS A MINOR WHO IS REP. BY HER MOTHER AND NATURAL GUARDIAN L.R.2(a)

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SMT.FLORY THOMAS W/O M.O.THOMOS AGED 55 YEARS

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SRI.L.SRIRAMA NAIDU S/O LAKSHMAIAH AGED 60 YEARS

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RESPONDENT NOS.2,3 AND 4 ARE R/AT NO.61, SUBBAYYANAPALYA NEW EXTENSION, M.S.NAGARA POST BENGALURU - 560 033

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SRI.V.EKAMBARAM FATHERS NAME NOT KNOWN AGED 58 YEARS, R/AT 9^TH CROSS BHARATHIYAR ROAD, R.S.PALYA

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M.S.NAGAR POST, BENGALURU - 33

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SRI.NARASAPPA SINCE DECEASED BY HIS LRS.

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6(A). SMT.SUBBAMMA W/O LATE NARASAPPA AGED ABOUT 60 YEARS

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6(B). SRI.JAYARAM S/O LATE NARASAPPA AGED 48 YEARS

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6(C). SRI.SREEDHAR S/O ALTE NARASAPPA AGED 36 YEARS

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6(D). SMT.JYOTHI W/O LATE BABU AGED ABOUT 30 YEARS

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6(E). KUM.SHOBHANIKA D/O LATE BABU AGED ABOUT 2 YEARS

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RESPONDENT NO.6(e) IS A MINOR AND SHE IS REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN IE., RESPONDENT NO.6(d)

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RESPONDENT NOS.6(a) TO 6(e) ARE R/AT NO.15/4, VENKTARAMAIAH LAYOUT POST OFFICE ROAD, M.S.NAGAR POST BENGALURU - 560 033

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SRI.H.V.GOPALA S/O VENKATASWAMAPPA AGED 65 YEARS R/AT SUBBAYYANA PALYA NEW EXTENSION M.S.NAGARA POST

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BENGALURU - 560 033

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SRI.PERUMAL S/O ADI MULA AGED 60 YEARS R/AT SATHYAMURTHY ROAD M.S.NAGARA POST BENGLAURU - 560 033

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SMT.VELLIYAMMA W/O PALANI AGED 60 YEARS R/AT SUBBAYYANA PALYA NEW EXTENSION M.S.NAGARA POST BENGALURU - 560 033

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…RESPONDENTS

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(VIDE ORDER DATED 1(b) TO 1(i) IS TREATED AS LRS. OF DECEASED 1(a); SRI.V.VIJAYA SHEKARA GOWDA, ADV. FOR R1(b) R1(c),R1(d), R1(e), R1(f),R1(g),R1(i) ARE SERVED AND UNREPRESENTED VIDE ORDER DATED 26.07.2017 SERVICE OF NOTICE TO R1(j) IS HELD SUFFICIENT BY WAY OF PAPER PUBLICATION; R2(c) AND R3 ARE SERVED AND UNREPRESENTED SRI.RIYAZ AHMED SHERIFF, ADV. FOR R2(a) AND R2(b) SRI.RAMESH P. KULKARNI, ADV. FOR R4, R5, R6(a) TO R6(e) SRI.H.V.GOPALA, ADV. FOR R7 ARE SERVED AS PER ORDER DTD 12.09.2012; SRI.K.R.ASHOK KUMAR, ADV. FOR R8 AND R9)

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THIS RFA IS FILED U/O 41 RULE 1 R/W SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED19.12.2009 PASSED IN OS.NO.6768/1998 ON THE FILE OF THE XII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH 27), DISMISSING THE SUIT FOR DECLARATION & POSSESSION.

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THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The caption appeal by the unsuccessful plaintiffs seeking relief of declaration that they are the owners of the suit schedule property and consequential relief of possession alleging encroachment by defendants No.2 to 9 is dismissed by the Trial Court.

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For the sake of brevity, the parties are referred to

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as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The original plaintiff, Ramaiah, instituted the present suit seeking a declaration that he is the absolute owner of

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the Schedule ‘A’ property and for recovery of possession of Schedule ‘B’ property, which according to him constitutes an encroached portion in the occupation of defendant Nos.2 to 9 on the strength of sale deeds executed by original defendant No.1, M. Lakshmaiah. It was the specific case of the plaintiff that the suit schedule properties are ancestral in nature and that a partition had taken place between himself and his brother, defendant No.1. As per the pleaded partition, out of the total extent measuring 5 acres 32 guntas, an extent of 3 acres 05 guntas was allotted to the share of the plaintiff and the remaining extent of 2 acres 27 guntas was allotted to the share of defendant No.1.

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The plaintiff further asserted that the portions

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allotted to his share were assigned Sy.No.205/1-A and Sy.No.205/1-C, measuring 1 acre 17 guntas and 1 acre 28 guntas respectively, whereas the portion allotted to defendant No.1 was assigned Sy.No.205/1-B measuring 2 acres 27 guntas. According to the plaintiff, pursuant to the

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partition, the northern and extreme southern portions fell to his share, while the middle portion bearing Sy.No.205/1-B was allotted to defendant No.1. Alleging that defendant No.1, in collusion with defendant Nos.2 to 9, had alienated land beyond his share and that defendant Nos.2 to 9, on the strength of such sale deeds, had encroached upon Sy.No.205/1-A (Schedule ‘B’ property), the present suit came to be filed seeking declaration of title and consequential possession.

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Upon service of summons, defendant Nos.1 and 4 to 9 entered appearance through counsel. Defendant Nos.4 to 9 filed their written statement stoutly denying all material averments made in the plaint. Defendant No.1, however, did not choose to file any written statement. Defendant Nos.4 to 9 asserted that they are bona fide purchasers of individual sites under registered sale deeds executed by defendant No.1 and claimed valid right, title and possession over their respective properties. Tracing title through their vendor, they sought dismissal of the

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suit. The plaintiffs pleaded ignorance with regard to the alleged Hissa Durust proceedings relied upon by the defendants.

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Based on the rival pleadings, the Trial Court framed appropriate issues and called upon the parties to lead oral and documentary evidence in support of their respective cases.

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During the pendency of the suit, the original plaintiff Ramaiah died. His legal representatives were brought on record and plaintiff No.1(b) was examined as P.W.1. The plaintiffs, in support of their case, produced five documents, which were marked as Exs.P.1 to P.5.

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On the other hand, the defendants examined six witnesses as D.Ws.1 to 6 and produced twenty-two documents, which were marked as Exs.D.1 to D.22.

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During the pendency of the suit, a Court Commissioner was appointed, who conducted the alleged

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local inspection and submitted his report along with the mahazar and notice, which were marked as Exs.C.1 to C.3. The Commissioner was examined as C.W.1.

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The Trial Court, upon meticulous appreciation of the oral and documentary evidence on record, answered Issue No.1 in the negative, holding that the plaintiffs had failed to establish their title over the Schedule ‘A’ property. While answering Issue No.2, the Trial Court held that the plaintiffs had failed to prove that defendant Nos.2 to 9 were in illegal occupation of Schedule ‘B’ property or that it formed part of Schedule ‘A’. While answering Issue No.3, the Trial Court held that in the absence of proof of title and partition, the plaintiffs were not entitled to seek possession of Schedule ‘B’ property. Consequently, the suit was dismissed.

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Assailing the impugned judgment and decree, the learned Senior Counsel appearing for the appellants vehemently contended that Ex.P.1, being a registered

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partition deed, conclusively establishes severance of status between the two brothers and is binding not only on defendant No.1 but also on defendant Nos.2 to 9, who trace their title through him. Referring to Ex.P.1 and the accompanying revenue sketch, he submitted that Ramaiah was allotted 3 acres 05 guntas in Sy.No.205/1 and that pursuant thereto, his name was mutated in respect of Sy.Nos.205/1-A and 205/1-C, while defendant No.1 was allotted Sy.No.205/1-B. Placing reliance on the Hissa proceedings and the Commissioner’s report at Ex.C.1 along with the sketch at Ex.C-1A, learned Senior Counsel contended that the evidence on record clearly establishes partition by metes and bounds and further demonstrates encroachment by defendant Nos.2 to 9 into Sy.No.205/1A. It was contended that the Trial Court has misread the evidence on record and that the impugned decree warrants interference. He further submitted that the severance of the joint family is not seriously disputed,

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particularly in view of defendant No.1 having failed to contest the suit by filing a written statement.

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Referring to the interlocutory applications filed before this Court, learned Senior Counsel submitted that defendant No.5 died during the pendency of the appeal on 28.06.2017 and applications have been filed to bring his legal representatives on record. He further submitted that defendant No.2(c), a legal representative of defendant No.2, was a minor at the time of institution of the suit and, having attained majority, ought to have filed a discharge application. Similar submissions were made in respect of defendant No.6(e), who has also attained majority.

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Per contra, learned counsel appearing for defendant Nos.4, 5 and 6 supported the impugned judgment and decree. Taking this Court through the recitals of the registered partition deed, he submitted that even if the document is accepted in its entirety, it clearly indicates that the partition was effected on an east–west

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axis and not north–south as pleaded by the plaintiffs. In that view of the matter, the reliance placed by the plaintiffs on the revenue sketch to establish identification is wholly misconceived and contrary to the recitals of the partition deed.

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Justifying the rejection of the Commissioner’s report by the Trial Court, learned counsel submitted that the report suffers from grave procedural irregularities. He pointed out that the Commissioner, in his crossexamination, admitted that he did not verify whether notice was served on defendant Nos.6(a) to 6(e), that he had not signed the Commissioner’s report, and that the occupation of an extent of 10 guntas by residents was not reflected in the report. He further contended that the suit is fundamentally defective, as the plaintiffs seek recovery of alleged encroachments without specifying the exact extent and boundaries attributable to each defendant who has purchased under registered sale deeds. In support of his submissions, reliance was placed on the judgments of

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the Bombay High Court in Trambak Barku Patil v. Damu Chindhu Patil (2010 AIHC 711) and the Orissa High Court in Abala Mohapatra v. Krushna Ch. Tripathy (2009 AIHC 1822), to contend that the suit in its present form is not maintainable.

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Learned counsel appearing for defendant Nos.8 and 9 has also placed reliance on the judgment of the Hon’ble Supreme Court in Mary Pushpam v. Telvi

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Curusumary and others rendered in Civil Appeal No.9941/2016 . Placing reliance on the ratio laid down therein, learned counsel would contend that in the absence of precise identification of the property, coupled with accurate boundaries and measurements, the relief of declaration of title cannot be granted. It is further contended that when the foundational relief of declaration itself fails on account of defective description and identification, the consequential relief of recovery of possession also cannot be granted as a matter of course.

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Having heard the learned counsel appearing for the parties and having carefully perused the material placed on record, the following points arise for consideration in this appeal:

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(i) Whether the finding of the Trial Court holding that the plaintiffs have failed to establish their title over Schedule ‘A’ property suffers from perversity and warrants interference?

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(ii) Whether the finding of the Trial Court that the plaintiffs have failed to prove that defendant Nos.2 to 9 are in illegal occupation of Schedule ‘B’ property and that it forms part and parcel of Schedule ‘A’ property is perverse and warrants interference?

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(iii) Whether the applications filed by the plaintiffs seeking to set aside the abatement consequent upon the death of respondent No.5 can be entertained at this stage?

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(iv) Whether, in the absence of discharge applications filed by defendant No.2(c) and

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defendant No.6(e) upon attaining majority, the appellants are entitled to seek discharge of their minority by invoking Order XXXII of the Code of Civil Procedure?

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(v) What order?

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Findings on point no.(i) and (ii):-

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Before this Court proceeds to examine the plaintiffs’ entitlement to the relief of declaration, it is necessary to advert to the precise nature of the reliefs sought in the plaint. In that context, this Court deems it appropriate to extract the prayer column of the plaint, which reads as under:

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"(a) To pass a Judgement and Decree Declaring that the plaintiff is the absolute owner of 'A' Schedule Property.

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(b) And to hold and declare that the defendants are in illegal possession of the 'B' Schedule Property and they have no right to remain in possession of the same and direct them to handover the possession of the 'B' Schedule property to the plaintiff herein.

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(c) And to grant such other relief and reliefs which this Hon'ble Court be pleased to grant in the circumstances of the case and to award the cost of the suit in the ends of justice."

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This Court also deems it fit to extract schedule B

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property, which, according to the plaintiffs, defendants no.2 to 9 have encroached upon. The same is extracted as under:

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"Portion of Sy.No.205/1-C measuring 1 Acre 36 guntas in situated at Banasawadi village, K.R.Puram Hobli, Bangalore South Taluk and bounded on:-

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East by	-	Government Road,
West by	-	Property of Patel Venkateswamy.
North by	-	Sy.No.205/1-B.
South by	-	Sy.No.205-2. "

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In the light of the reliefs sought in the suit, it is manifest that the entire substratum of the plaintiffs’ case rests upon the registered partition deed marked at Ex.P.1. While the said document is admittedly a registered instrument, mere registration by itself does not absolve

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the plaintiffs of the burden of establishing their right, title, and interest over the specific and identifiable suit schedule properties strictly in terms of the recitals contained therein. The plaintiffs are therefore required to demonstrate, with precision, that the properties described

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as Schedule ‘A’ and Schedule ‘B’ correspond to the portions allegedly allotted to their predecessor-in-title under the partition deed.

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Though the original plaintiff, Ramaiah, asserts title over Sy.No.205/1-A and Sy.No.205/1-C, a closer and careful scrutiny of the recitals in the registered partition deed reveals material ambiguity and inconsistency in regard to the mode of partition. The partition deed indicates that the division between the two brothers was effected on an east–west axis, whereas the plaintiffs’ case, as projected through the survey sketch marked as Ex.P.5 and the attendant revenue records, proceeds on the premise that Sy.No.205/1 stood divided on a north–south axis into three distinct portions.

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The plaintiffs’ heavy reliance on Ex.P.5, which depicts a north–south bifurcation of Sy.No.205/1, is thus wholly incongruent with the express recitals of Ex.P.1. When the foundational document of title itself prescribes a particular mode of division, subsequent revenue sketches and entries reflecting a contradictory topography cannot override or alter the legal effect of the partition deed. The revenue records, more particularly Ex.P.5, therefore do not advance the plaintiffs’ case; on the contrary, they expose a fundamental inconsistency between the pleaded case and the documentary foundation relied upon. In the face of such irreconcilable conflict between Ex.P.1 and Ex.P.5, this Court is constrained to hold that the plaintiffs have failed to establish the mode of partition or to identify the suit schedule properties as having been allotted to their share under the registered partition deed.

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The plaintiffs’ case is further weakened by a material contradiction relating to the extent allegedly allotted to the original plaintiff under the partition. While it

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is pleaded that Ramaiah was allotted an extent of 3 acres 05 guntas, the registered partition deed itself does not specify the precise extent allotted to each sharer. More significantly, this assertion stands squarely contradicted by the admission made by plaintiff No.1(b) in paragraph No.3 of his examination-in-chief. In the said paragraph, plaintiff No.1(b) has unequivocally acknowledged that original defendant No.1, Lakshmaiah, was allotted an extent of 2 acres 38 guntas, and that the remaining extent of 2 acres 30 guntas in the very same survey number was allotted to his father, Ramaiah.

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This admission not only belies the pleaded case of allotment of 3 acres 05 guntas but also introduces a serious element of uncertainty with regard to the extent claimed by the plaintiffs. An admission made by a party in evidence constitutes substantive evidence and binds the maker thereof. The contradiction between the pleadings and the plaintiffs’ own evidence strikes at the root of the claim and reinforces the conclusion that the plaintiffs have

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failed to establish, with clarity and certainty, both the mode of partition and the extent of land allegedly allotted to their share under Ex.P.1.

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In this background, this Court deems it appropriate to extract paragraph No.3 of the examinationin-chief of P.W.1, which reads as under:

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"I state that in the said partition, an extent of 2 acres 38 guntas in Sy.No.205 fell into the share of the First defendant and the remaining extent of 2 acres 30 guntas of land in the same Sy.No. fell in to the share of my father. I state that pursuant to partition dated 1708-67, the survey authorities conducted Hissa Durust work and while doing so, the survey authorities have made 3 blocks in Sy.No.205 as 205/1-A, 205/1-B and 205/1-C."

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Defendant No.1, Lakshmaiah, has also entered the witness box and tendered his evidence, notwithstanding the fact that he did not choose to file a written statement. In his examination-in-chief, defendant No.1 has deposed with regard to the alleged partition between himself and the original plaintiff, Ramaiah. It is

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significant to note that defendant No.1 also places reliance on the very same registered partition deed dated 17.08.1967. However, his version with regard to the extent allotted under the said partition materially diverges from the case put forth by the plaintiffs.

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According to defendant No.1, under the registered partition deed, the original plaintiff Ramaiah was allotted an extent of 2 acres 38 guntas, while he himself was allotted the remaining 2 acres 30 guntas in the same survey number. This version stands in direct contradiction to the evidence of P.W.1, who has asserted a converse allocation of extents. The conflicting versions emerging from the evidence of the plaintiffs and defendant No.1, both of whom rely on the same partition deed, further escalates the uncertainty surrounding the extent allegedly allotted to each sharer and erode the credibility of the plaintiffs’ claim.

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In view of this material inconsistency emanating from the oral evidence of the parties themselves, this Court deems it appropriate to extract paragraph No.3 of the examination-in-chief of defendant No.1, which reads as under:

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"I submit that as per the registered partition deed dated 17-08-1967, the plaintiff has got 2 A. 38 Gts. and defendant has got 2 A 30 Gts. After partition I sold the entire property to the other defendants and the defendants 2 to 9 have constructed residential house and residing thereon from 1985 itself and all the documents stands in the name of purchasers and I have no right whatsoever to the schedule property. Hence the question of partition and declaration of the schedule property does not arise."

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While plaintiff No.1(b) and defendant No.1 echo

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the factum of partition, there exists a serious and irreconcilable dispute with regard to both the mode of partition and the extent of land allegedly allotted to each sharer. In this backdrop, one more crucial admission elicited in the cross-examination of P.W.1 assumes

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considerable importance and cannot be brushed aside, as

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it strikes at the very foundation of the plaintiffs’ case.

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The original plaintiff, Ramaiah, instituted the present suit placing heavy reliance on the registered partition deed marked at Ex.P.1 to contend that there was a severance of status between himself and defendant No.1. However, during cross-examination, P.W.1 has candidly admitted that the plaintiffs had earlier instituted a suit in O.S.No.5698/1998 seeking the relief of partition, that the said suit came to be dismissed, and that an appeal arising therefrom is presently pending consideration before this Court. This admission clearly demonstrates that, notwithstanding the assertion of a concluded partition conferring exclusive title to specific and identifiable portions, the plaintiffs themselves treated the properties as requiring partition in a subsequent round of litigation.

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Such an admission has serious legal implications. If the partition under Ex.P.1 had indeed resulted in a final and complete division by metes and bounds, there would have been no occasion for the plaintiffs to institute a later suit seeking partition and separate possession. The very act of filing a subsequent partition suit casts a grave doubt on the plaintiffs’ present assertion of exclusive title and exposes the inherent inconsistency in their stand.

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In view of the evidentiary value of the said admission, this Court deems it appropriate to extract the relevant portion of the cross-examination of P.W.1, which reads as under:

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"It is true to suggest that I have filed O.S.No.5698/1998. The said suit was filed not for declaration of encroached area but for partition. It is true to suggest that the said suit was dismissed. Against that order I have preferred an appeal and it is pending before High Court. I am not remembering that appeal number. The said suit was filed against deendant no.1 for partition. It is not true to suggest that to extract money from defendants 1 to 9 I have

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filed the false case. It is not true to suggest that the suit schedule property A and B is not in my possession and I have filed false suit against the defendants."

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A careful reading of the admissions elicited in the cross-examination of P.W.1, extracted supra, unmistakably establishes that the plaintiffs have, in unequivocal terms, acknowledged the institution of a subsequent suit in O.S.No.5698/1998 seeking the relief of partition and separate possession. The admission further discloses that the said suit came to be dismissed and that an appeal arising therefrom is pending consideration before this Court. This fact assumes considerable significance, as it demonstrates that notwithstanding the present assertion that the original plaintiff had acquired exclusive and absolute title to a defined extent pursuant to the registered partition deed at Ex.P.1, the plaintiffs themselves treated the properties as joint and capable of partition in a subsequent round of litigation.

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On an overall and holistic examination of the pleadings in the plaint, the admissions made in the examination-in-chief, and the categorical statements elicited in the cross-examination of P.W.1, this Court finds that the plaintiffs’ case suffers from inherent and fatal inconsistencies. The assertion that the original plaintiff acquired absolute title to an extent of 3 acres 05 guntas under a concluded partition stands squarely contradicted by the plaintiffs’ own admission of having instituted a later suit seeking partition and separate possession. Such conduct is wholly incompatible with a claim of final and complete partition by metes and bounds.

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The plaintiffs’ own evidence thus exposes uncertainty not only with respect to the extent allegedly allotted but also as regards the mode of partition pleaded in the suit. The description of the suit schedule properties in the plaint does not correspond with the recitals and mode of division indicated in the registered partition deed at Ex.P.1. When read in conjunction with the admission

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relating to the subsequent partition suit, it becomes evident that the plaintiffs have failed to establish, with clarity and certainty, their title over any specific and identifiable portion of the suit schedule property. Accordingly, this Court holds that the plaintiffs have failed to substantiate their claim of title based on the registered partition deed marked at Ex.P.1.

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The cross-examination of the Commissioner has significance bearing on the veracity of the report filed by him. The same is extracted which reads as under:

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"I have received a commission warrant alongwith memo of instructions submitted by both the parties. I have received memo of instructions submitted by both parties and defendants. I have issued notice to defendants 6 (a) to 6 (d). I am not able to identify as to whether the notice has been served on def-endants 6(a) to 6(d). It is not true to suggest that I have not issued any notice to defendants 6 (a) to 6(d) intimating the date of execution of commissioner warrant. It is true to suggest that in summons there is no reference of 'A' Schedule Property and 'B' Schedule Property. The execution of commission work

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as been recorded in my diary. It is true to suggest that Ex.C 1 (A) sketch is prepared by me in my office. The witness volunteers that he prepared the same as per the field measurements records. It is true to suggest that Ex.C1(A) does not bear my signature. I have not taken the signatures of the parties in respect of field measurement Notes. I have measured the land by using the chain. I have used 10 meter chain for measurement. But it is not referred in Mahazar."

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Emphasis supplied

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A careful reading of the admissions extracted from the cross-examination of the Court Commissioner unmistakably reveals that the so-called local inspection, which forms the very foundation of the plaintiffs’ plea of encroachment, is wholly vitiated and lacks evidentiary sanctity. The Commissioner has admitted, in unequivocal terms, that the survey sketch relied upon by him was prepared purely on the basis of the field measurement records and that the same was drawn up in the office, without undertaking an independent survey or verification at the spot. He has further candidly acknowledged that the Commissioner’s report itself does not bear his signature.

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These admissions strike at the root of the credibility and reliability of the Commissioner’s report. A local inspection contemplated under law presupposes an actual visit to the spot, physical verification of boundaries, measurements, and occupation, and preparation of a report based on such first-hand inspection. When the Commissioner admits that the sketch was prepared in the office and that the report was not authenticated by his signature, the entire exercise stands vitiated. Such a report cannot be accorded any probative value, particularly in a suit where the relief sought is founded on precise identification of property and alleged encroachment.

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The infirmities in the Commissioner’s report are further compounded by the next crucial admission elicited in his cross-examination, which clearly indicates that he did not, in fact, conduct a physical inspection of the suit schedule property at all. These admissions unmistakably demonstrate that the Commissioner has not gone to the

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spot and has not carried out a local inspection in the manner contemplated under law. In disputes relating to partition, title, and encroachment, where identification of property on the ground is of paramount importance, such a lapse is not a mere procedural irregularity but goes to the very foundation of the plaintiffs’ claim.

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In view of the serious deficiencies disclosed in the Commissioner’s own evidence, this Court finds it necessary to extract the relevant admissions elicited in further cross-examination of the Commissioner, which read as under:

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"The residents have occupied to the extent of 10 guntas in the suit property. It is true to suggest that I have not shown the same in my report. It is not true to suggest that in order to assist the plaintiff, I have submitted a false report. It is not true to suggest that Ex.C.1, Ex.C1 (A), Ex.C.2 and Ex. C3 are prepared by me in my office at the instance of plaintiff to suit his claim."

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(Emphasis supplied)

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The aforesaid admissions further disclose yet another material infirmity in the Commissioner’s exercise.

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The Commissioner has admitted that the residential occupation to an extent of 10 guntas, which admittedly exists on the suit land, is not reflected either in the survey sketch or in the Commissioner’s report. This omission is not insignificant. When the plaintiffs’ entire case of encroachment rests upon the accuracy of the local inspection and the survey sketch, failure to reflect an existing residential occupation clearly demonstrates that the report does not represent the ground realities.

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In the absence of an accurate depiction of existing structures, precise demarcation, and faithful reflection of possession on the ground, the Commissioner’s report cannot form the basis for adjudicating a serious dispute relating to title and alleged encroachment. Viewed cumulatively with the earlier admissions regarding nonconduct of spot inspection, preparation of sketch in the office, and lack of authentication of the report, this Court is of the considered view that the Commissioner’s report is wholly unreliable. Consequently, the plaintiffs have failed

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to substantiate their plea of encroachment against defendant Nos.2 to 9. Accordingly, Point Nos.(i) and (ii) is answered in the " Negative".

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Finding on Point Nos.(iii) and (iv):

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In view of the findings recorded by this Court on Point Nos.(i) and (ii), it is evident that the plaintiffs have failed to establish the foundational facts necessary to sustain the suit. This Court, upon an independent and objective appraisal of the registered partition deed at Ex.P.1, read in conjunction with the revenue records and the oral evidence on record, has reached the conclusion that the mode of partition pleaded by the plaintiffs is not substantiated. Equally, the extent allegedly allotted to the share of the original plaintiff under the partition deed remains uncertain and unproved.

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Once the plaintiffs have failed to establish their title and the identity of the suit schedule properties, this

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Court finds no justification to examine the interlocutory applications relating to setting aside abatement and discharge of minority. Since this Court is not inclined to interfere with or reverse the judgment and decree passed by the Trial Court, consideration of these applications would be purely academic and does not survive for adjudication. Accordingly, Point Nos.(iii) and (iv) are also answered in the "Negative ".

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Finding on point No.(v):

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