Remanded

Vadakkayil Kunhikanaran Nair v. Kuttiparambil Devi Amma

Kerala HC25 Nov 2016RSA/815/2005

Case brief

AI extract

What is this about?

In a regular second appeal regarding property identification, the High Court of Kerala set aside the impugned judgments. The court held that an ex parte Commission Report cannot be admitted in evidence without examining the Commissioner, relying on Abdul Nazar v. Iyyathumma. The matter was remanded to re-record evidence.

What did the court decide?

The impugned judgment is set aside and the matter is remitted to the trial court for examining the Commissioner of the court.

Vadakkayil Kunhikanaran Nair Vs Kuttiparambil Devi Amma — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938

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RSA.NO. 815 OF 2005 (E)

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AGAINST THE JUDGMENT AND DECREE DATED 26.05.2005 IN A.S. NO. 131 OF 1998 OF THE ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA

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AGAINST THE JUDGMENT AND DECREE DATED 30.06.1998 IN O.S. NO. 256 OF 1997 OF MUNSIFF COURT, KOYILANDY

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APPELLANTS/DEFENDANTS 1 TO 3 IN SUIT:

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1. VADAKKAYIL KUNHIKANARAN NAIR,

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S/O.RARUKUTTY NAIR, AGED 68 YEARS, RYOT,NATERI AMSOM, KURICHIKKARA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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2. VADAKKAYIL GEETHA, D/O.KUNHIKANARAN NAIR, AGED 28 YEARS, SWASTHAM, NATERI AMSOM, KURICHIKKARA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE .

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3. VADAKKAYIL CHANDRAN, S/O.KUNHIKANARAN, NAIR, AGED 25 YEARS, OWN AFFAIRS,NATERI AMSOM, KURICHIKKARA DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE.

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BY ADVS.SMT.K.V.BHADRA KUMARI

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SMT.C.M.CUCKOO

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RESPONDENT/PLAINTIFFS IN SUIT.:

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KUTTIPPARAMBIL DEVI AMMA,

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W/O.NARAYANAN NAIR, CHERIYAKUNNATH HOUSE, SWASTHAM, KURUVANGAD AMSOM, PERUVATTOOR DESOM, QUILANDY TALUK, KOZHIKODE DISTRICT

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R1 BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No.815 of 2005

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 25th day of November, 2016

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J U D G M E N T

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The only question that arises for consideration

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in this Regular Second Appeal is that whether the trial court is justified in accepting the Commission Report in evidence, without examining the Commissioner, particularly when the Commission was an ex parte commission, without issuing notice to the defendants.

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The learned counsel for the appellants advanced arguments contending that the Commission Report prepared without issuing notice to the opposite party can be admitted in evidence only, after examining the Commissioner by the party, who wants to rely on that Commission Report and in the instant case, the Commissioner was not examined at

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R.S.A. No.815 of 2005

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-: 2 :-

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the instance of the respondent/plaintiff. Therefore,

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the impugned judgment passed by the trial court

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based on the Commission Report, which shows the

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state of affairs on the date of suit is unsustainable under law.

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On the other hand, the learned counsel for

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the respondent submits that the defendants have not taken steps to set aside the commission report and even if the Commission Report is not reliable, there is sufficient evidence to show that the respondent/plaintiff was in possession of the plaint schedule property on the date of suit. The learned counsel for the respondent drew my attention to the evidence of PW1 to PW3. It is also contended that DW1 and DW2 also have given evidence in consonance with the plaintiff's case that the plaint schedule property is well identifiable and situating within well defined boundaries separated by fence and

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R.S.A. No.815 of 2005

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-: 3 :-

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'keerikila'.

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Going by the impugned judgment passed by

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the appellate court, it could be seen that the lower appellate court has passed the judgment based on the commission report for arriving at a finding that the plaint schedule property is a well identifiable property, lying within clear boundaries on all the four sides. So also, the courts below found that the plaint schedule property is separated by an old 'keerikila' and fencing from the defendant's property. But, the specific case of the defendants is that the 'keerikila' was constructed certain

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months back and the fencing was a new one.

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It is true that the Commissioner has not

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issued notice to the defendant before the inspection of the property. The learned counsel for the appellant cited Abdul Nazar v.Iyyathumma and Others [2016(2)KHC 282] to substantiate the contention that

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R.S.A. No.815 of 2005

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-: 4 :-

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ex parte commission report cannot be relied or admitted in evidence, without examining the Commissioner. This Court in Abdul Nazar

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v.Iyyathumma and Others (supra) held as follows:

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“It is clear from these decisions that in order to apply Order XXVI Rule 10(2) of the Code of Civil Procedure, the Commissioner's report must be the one obtained after notice to both the parties. It is not clear from the Commissioner's report as to whether any such attempt has been made by the Commissioner before inspecting the property as well. So in such circumstances, it can be only presumed that it was a report filed by the Commissioner ex parte without giving notice to the parties to the proceedings and in such cases in view of the dictum laid down in the decisions cited supra, the Commissioner's report can be admitted in evidence only after examining Commissioner by the party who wanted to rely on that report.”

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The proposition that can be culled out

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from the above paragraph is that the ex parte Commission Report cannot be admitted in evidence, without examining the Commissioner, by the party,

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R.S.A. No.815 of 2005

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-: 5 :-

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who wanted to rely on that report. In the instant

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case, it is not disputed that the Commissioner was not examined.

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In the above view, the matter requires to be remanded for examining the Commissioner. Consequently, the impugned judgment passed by the courts below will stand set aside and the matter is remitted to the trial court for examining the Commissioner. The parties shall appear before the trial court on 3^rd January, 2017 at 11.00 am. The parties are not allowed to produce any other evidence. The parties are directed to maintain status quo , till passing the judgment afresh.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

Vadakkayil Kunhikanaran Nair v. Kuttiparambil Devi Amma

Case brief

What is this about?

What did the court decide?

Vadakkayil Kunhikanaran Nair v. Kuttiparambil Devi Amma

Case brief

What is this about?

What did the court decide?

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