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Narayana Guptan Vs. Madhava Menon and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1300 of 1960
Judge
Reported inAIR1965Ker95
ActsCode of Civil Procedure (CPC) , 1908 - Sections 99 - Order 26, Rule 10(3)
AppellantNarayana Guptan
RespondentMadhava Menon and ors.
Appellant Advocate N. Sundara Iyer and; V.R. Venkitakrishnan, Advs.
Respondent Advocate D.A. Krishna Warrier, Adv.
DispositionAppeal dismissed
Cases ReferredStub Charan Sahu v. Sarda Prasad
Excerpt:
- - a2 and it was complained that this was contrary to what the judge) has stated, as above. assuming that there is this discrepancy in the evidence the court below was justified in attaching greater importance to what is contained in the document itself, than to an identification of the property made by the respondent with reference to a plan like ext......as seen from ext b-8; this could be only if peediyode nilam is as marked on the east of b schedule property. this is not the only thing. the southern and the northern boundaries were also located or identified by the courts so as to include the suit property. in doing so, incidentally the court had to locate kanniarkavu paramba and item 7 in ext. al and ext, a2 and the court below took it that item 7 comprised survey nos, 20/1, 20/2, and 20/8.before the commissioner, the respondent had admitted, that plots b, b1, and e constituted item 7 in ext. a2 and it was complained that this was contrary to what the judge) has stated, as above. p. w 1 also made a similar statement. assuming that there is this discrepancy in the evidence the court below was justified in attaching greater.....
Judgment:

S. Velu Pillai, J.

1. This second appeal by the second defendant arises in a suit by the respondent to recover possession, of the property in Schedule B which is a part: of the property in Schedule A of the plaint, on the basis of title. In view of the findings of the two courts on title and possession which are concurrent, I do not think., if necessary to state the facts in detail. The respondent claimed the property in Schedule A under Ext. A2, his earliest document of title of the year 1921, while the appellant claimed the property under Ext. B-8, his earliest document of title of the year 1929. At the trial, the commissioner furnished the plan Ext. C-2 and the report, to which both parties objected. Upon this, The court-issued a second commission which produced the plan Ext. C1 and the report Ext. C6. The two courts have relied on Ext. C1 plan, though as the Munsif has remarked, in their arguments before him, counsel relied on both plans. An objection was raised before the Subordinate Judge to the issue of two commissions by the Munsiff; he noted that the Munsiff had acted on Ext. Cl and that both parties did not object to the issue of a second commission.

In second appeal before me, learned counsel for the appellant reiterated the same ground and contended, that the issue of the second commission, even if done with consent of parties is illegal and is contrary to the provisions of Order XXVI, Rule 10 and relied on the decisions in Ambi v. Kunhikavamma, AIR 1929 Mad 661 and Kunhi Kutti AM v, Mohammad Haji, AIR 1931 Mad 73. These, cases have taken the view, that the issue of a second commission on the same subject-matter without setting aside the report of the first commissioner is, contrary to law. But the Patna High Court in Stub Charan Sahu v. Sarda Prasad, AIR 1937 Pat 670 has explained the Madras view. Even in the Madras cases cited, it was not held to be such an illegality as would vitiate the trial, and render the judgment liable to be set aside on that ground. In my view, this was only an error, or defect, or irregularity in the proceedings in the suit which did not per se affect the merits of the case and therefore under Section 99, C, P. C. the decree cannot be reversed, or substantially varied and the case cannot be remanded on that ground. Moreover the parties have not beem prejudiced, as both of them have relied on Ext. C1 and the two: courts have decided the case almost exclusively on Ext. C 1, but for one or two incidental references to Ext. Ext. C2.

2. On the merits of the case, the two courts have decided the issue between the- parties, on the boundaries specified in the earliest documents of title, Ext. A2 for the respondent and Ext. B8 for the appellant. The eastern boundary has been located with reference to Peedi-yode Nilam, which is situated to the east of the property to Schedule B and is marked in Ext. C1. For the appel-lant it Was urged, that there is Peediyode Nilam on the extreme west of the plot A1 in Ext. C1 which the Subordinate Judge has omitted to notice. This is so. What is important to note is, that Peediyode Nilam is the eastern boundary of the respondent's property as seen from Ext, A-2 and is also the western boundary of the property of the appellant as seen from Ext B-8; this could be only if Peediyode Nilam is as marked on the east of B schedule property. This is not the only thing. The southern and the northern boundaries were also located or identified by the courts so as to include the suit property. In doing so, incidentally the court had to locate Kanniarkavu Paramba and item 7 in Ext. Al and Ext, A2 and the court below took it that Item 7 comprised survey Nos, 20/1, 20/2, and 20/8.

Before the commissioner, the respondent had admitted, that plots B, B1, and E constituted Item 7 in Ext. A2 and it was complained that this was contrary to what the Judge) has stated, as above. P. W 1 also made a similar statement. Assuming that there is this discrepancy in the evidence the court below was justified in attaching greater importance to what is contained in the document itself, than to an identification of the property made by the respondent with reference to a plan like Ext. C-1. I do not feel that on this ground the concurrent findings can be self aside. As it is, the boundaries on the south, north and east have been found by the two courts to support the respondent's case.

3. As against these, the boundaries, survey numbers, name and other particulars in Ext. B8 were found by the court below not to tally with the suit property but to apply more to the property marked as Vadakkekara Paramba in Ext. Clause This is the name of the property as given in Ext. B. 8 and the survey numbers given in that document are 48/1B, 2 and 3. The survey numbers in both sets of documents Exts. A2 and B8 do not tally with the survey numbers of the suit property. This is a common defect. Judging from the boundaries and other particulars of the property, the two courts have come to the conclusion that the respondent has established title to the property. Possession of the property also has been found concurrently in favour of the respondent relying upon documentary evidence also. On these concurrent findings, I do not find my way to interfere with the decree under appeal. This second appeal la dismissed with costs.


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