'Can't Leave Plaintiff In Dark': Kerala HC Says Munsiff Bound To Decide Property Suit For Boundary Fixation Despite Setting Aside Commission Report

The Kerala High Court recently ruled that a trial court is bound to adjudicate upon a suit seeking fixing of the boundary of a plaintiff's property and give a verdict in the same, irrespective of whether the commission report and plan thereto are set aside during the proceedings. 

Justice A. Badharudeen while issuing the order, observed:

"...it is anxious to note that when the plaintiff approached the Munsiff for fixing the southern boundary of his property, the Munsiff is bound to adjudicate the dispute and to give a verdict. If the commission report and plan obtained for doing so, as such was set aside without any further order, that would in turn, put the plaintiff in a remediless position or in darkness."

Factual Background: 

The respondent herein is the petitioner's brother. The petitioner's case before the trial court was that as per the will executed by his father, a total extent of 15.3 cents was allotted as such: the respondent was given 7 cents on the south, while 8.3 cents on its north was allotted to the petitioner with a building.

According to the petitioner, the respondent has been enjoying 8.3 cents with excess land and the building therein.

As such, the petitioner filed an original suit before the Munsiff Court for fixation of the southern boundary of the plaint property based on the will.

The Commissioner did not remember whether the measurement was done after fixing the north-western boundary and whether the northwestern boundary was seen 30 cm away. Further, the Surveyor could not recollect as to whether the northern boundary was situated 30 cm away.

Therefore, the Munsiff Court set aside the commission report and survey plan relying on the decision rendered in Bhaskaran v. Kamalakshi & Others [2008 (4) KHC 203]. However, the Munsiff did not pass any further orders taking action on fixing the boundary.

According to the petitioner, this left him without any remedy. Therefore, challenging the order of the trial court and alleging illegality, he moved the High Court.

Observations: 

The Court found upon a cursory reading of the impugned order that in a suit for fixation of boundary, the Munsiff had set aside a Commission report and the sketch without any further orders. 

To understand the rationale behind the order, the Court examined the principle laid down in Bhaskaran v. Kamalakshi.

In the said case, it was established that in a petition filed to set aside the report and plan, before recording the evidence in the suit, the Munsiff has to dispose of the application to set aside the commission report and plan.

However, the Court noted that the decision did not lay down a principle that the Munsiff shall do so without any further orders, so as to put the plaintiff in a 'remediless position'.

On analysing the order impugned, it was found that the trial court set aside the commission report and plan being dissatisfied with the proceedings of the commissioner. Therefore, the High Court was not inclined to interfere with the said finding. 

"The learned Munsiff ought to have understood the situation and should have ordered remittance of the report for getting a report as prayed for in the petition to resolve the matter in controversy. Therefore, a blanket order setting aside the commission report alone is bad in law and its consequence is to put the parties in darkness."

Hence, the Court found it necessary to interfere with the impugned order to the extent that the same does not order remittance of the report and for getting a fresh report and plan.

Questions Before The Court:

(i) What is the course of action available to a court, when an application to set aside the commission report and plan is moved?

The Bench recalled that Order 26 Rule 10 (3) of CPC provides the course of action available to a court, where the court for any reason is dissatisfied with the proceedings of the Commissioner.

It was observed that in a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner. 

The Court added that its power to act under sub-rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. 

(ii) Can a petition for setting aside a commission report be allowed? If so what is the source of power?

 It was found that a court can set aside a commission report as well as plan when an application is filed to set aside the same if dissatisfied with the report and plan.

"It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub-rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for a fresh report by deputing another commissioner."

The source of power is the inherent discretion as settled by judicial precedent by interpreting Rule 10(3) of Order 26 C.P.C though such power is not specifically worded in Order 26 or any rules thereunder. 

(iii) If an application to set aside a commission report can be allowed without any further orders?

The Court reiterated that if a commission report and plan are set aside, a further order to remit back the same for getting a fresh report and plan as prayed for in the petition after ascertaining the matters afresh shall be obtained. 

"...the court shall not simply set aside a commission report without any further orders to get a fresh report to resolve the controversy, more particularly, in a case of fixation of boundary." 

(iv) If a conflict arose between 2 co-equal Bench whether an earlier decision or later decision will prevail? 

After referring to a couple of landmark decisions, the Court established that the earlier decision by a larger Bench or a co-equal Bench should be followed as the binding precedent by a Bench of co-equal strength later, until the same is overruled by a larger Bench or by the Apex Court.

"...the law is no more res integra on the point that a decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench. There can be no scintilla of doubt that an earlier decision of co-equal Bench binds the Bench of the same strength." 

Therefore, the Court refused to interfere with the impugned order to the extent that it set aside commission report and plan since it was was dissatisfied with the proceedings of the commissioner.

Hence, the petition was allowed in part. 

The report and the plan were thereby ordered to be returned to the same commissioner for remeasuring the property and for submitting a report and plan as sought in the suit filed by the petitioner. Considering that the matter was of 2012, the Munsiff was directed to expedite the trial of the case after getting a fresh report and plan, as directed above, within a period of four months. 

The petitioner was represented by Advocate K.S Ajayghosh and the respondent was represented by Advocate A.Antony Mathew Skaria. 

Case Title: Yudathadevus v. Joseph

Click Here To Read/Download The Order