1. This appeal is at the instance of the defendants in O.S. No. 816 of 2008 on the files of the Principal Munsiff Court, Ernakulam, a suit for fixation of boundary and a mandatory and prohibitory injunction directing the defendants to remove the construction made by them.

2. The brief facts necessary for the disposal of the appeal are as follows:

                  2.1.    The plaintiff claimed the right, title and possession of 15 cents of land in Sy. No. 95/1 of Maradu Village as per settlement deed No. 296/1975. The 1st defendant also derived the right by virtue of ‘C ‘Schedule to the said settlement deed. It is alleged that the 1st defendant on 06.06.2008 had encroached upon the ‘B’ schedule property and made some constructions. Hence, the suit. Subsequently, the plaint was amended by incorporating a plea for the mandatory injunction to remove the obstruction caused. It is alleged that the obstruction was made by the 1st defendant during the pendency of an order of injunction and at a time when the suit was dismissed for default and before the plaintiff could restore the same.

                  2.2.    The defendants entered appearance and contested the case contending that the 1st defendant never obstructed the entry of the plaintiff into the plaint schedule property. It was contended that the description of the property is also incorrect. In fact, it was contended that the encroachment was done by a third party and that third party was not made as a defendant in the suit.

                  2.3.    On behalf of plaintiff, Exts.A1 to A5 documents were produced and Pw1 to Pw3 were examined. On behalf of the defendants, Exts. B1 to B12 were produced and DW1 was examined. There were 7 reports of the Advocate Commissioner and Exts.C1 to C7 series marked are the reports and the sketches prepared by the Advocate Commissioner with the assistance of the Surveyor. Ext.X1 is produced and marked through PW3.

                  2.4.    The Trial Court finding that the earlier commission reports were flawed, set aside the reports and remitted back the reports for fresh consideration by the Advocate Commissioner, who later filed Ext.C7 report and Exts.C7(a) sketch. Based on Ext.C7(a) sketch, the Trial Court decreed the suit. Aggrieved, the defendants preferred A.S. No.124/12 before the Addl. District Court – V, Ernakulam, which was also dismissed and hence, the appeal raising the following substantial questions of law:

                  “1. When the defendant disputed the identity of the plaint schedule properties are the courts below justified in granting a decree of perpetual injunction without identifying the properties?

                  2. Are the courts below justified in decreeing the suit when it is evident from the plan that encroachment into the pathway has been done by a 3rd party, who is not a party to the suit nor the plaintiff has taken any steps for bringing him into the array of party?

                  3. Are the courts below justified in decrying the suit when it has not been proved that defendants have encroached upon the property or B schedule pathway?”

4. Heard Sri. George Mathew, the learned counsel appearing for the appellants and Sri. T. T. Harikumar, the learned counsel appearing for the respondent.

5. The learned counsel for the appellants submitted that the findings rendered by the courts below are perverse and rendered on the basis of the flawed report of the Advocate Commissioner. Either the Surveyor or the Advocate Commissioner were examined to prove the contents of Ext.C7 report and C7(a) plan. Even the description of property in Exts.C7 and C7(a) are wrong. The Commissioner was required to specifically identify the survey line separating the property in Sy. Nos. 96/4 and 95/1. A reading of the report would show that the Commissioner had, in fact, not measured the property with relation to any survey plan or the field measurement book, but rather proceeded to identify the boundaries based on the existing line. This has caused serious prejudice to the defendants/appellants.

6. Per contra, Sri. T. T. Harikumar, the learned counsel appearing for the respondent/plaintiff supported the findings rendered by the Courts below and pointed out that the findings are purely on the basis of appreciation of evidence and, therefore, the concurrent findings do not require any interference under Section 100 of the Code of Civil Procedure. He would further point out that the Advocate Commissioner has correctly identified the property and found that the construction made by the appellants was by violating the order of injunction and at the time when the suit was dismissed for ‘default’ and before the plaintiff would restore the same.

7. To answer the substantial questions of law, one needs to decipher the findings rendered by the Trial Court in paragraph 20 of the judgment. At least 6 reports were placed before the Trial Court and the Trial Court was not satisfied with regard to each report which shows that the identification of the property was seriously flawed. Exts. C6 and C6(a) were set aside and remitted back to the Commissioner to identify the property with specific direction to find out the survey sub division line separating the property in Sy. Nos. 96/04 and 95/01 correctly. On a cursory look at the reports filed by the Commissioner, it is seen that the Commissioner could not identify any old survey stone but still proceeded to prepare the sketch based on the physical boundary so pointed out. The relevant portion of the report of the Advocate Commissioner in Ext. C7 is extracted as under;

                  “a. The commissioner shall re measure the properties as per the documents and survey records and prepare separate sketches.

                  With the assistance of Sri. Ashraf, Taluk Surveyor the plaint A, B and C schedule were measured. the three old survey stones located by surveyor are marked and shown in the sketch survey field 95/1 was located to fix the boundary line of 96/4 on the western side of plaint schedule. but old survey stone could be located in spite of earnest attempt made by the parties. entire field is a residential site with major development by improving the original land. plaint B schedule is at an average height of five feet up. however, the surveyor by cross checking all possible diagonal and locating the junction of survey sub division of the major survey fixed the sub division line separating the Sy. No. 96/4 and 95/1. Plan prepared as per survey records and possession is produced herewith.

                  b. While doing so, the commissioner shall first of all re measure and identify the survey sub division line separating survey No. 96/4 and 95/1 correctly. No old survey stone was located in the field separating the two survey sub divisions. but the physical boundary was pointed out. sketch was prepared based on the observation made at the time of inspection. with all efforts to minimize any error in preparing the sketch produced.”

8. When this was placed before the Trial Court, it was the plaintiff who came out with all vehemence against the acceptance of the report. But, however, during the course of the trial, it appears that the plaintiff had given up the objection. But the infirmity in the report was later seriously questioned by the defendants. The Trial Court strangely noticed the fact that the Surveyor and the Commissioner who prepared Exts. C7 report and C7(a) plan were not examined by the plaintiff. But still proceeded to accept Ext. C7(a) plan on the ground that nobody had a case that the owner of the property in Sy. No. 96/4 and 95/1 had encroached into any portion of plaint B schedule property. Resultantly, the Trial Court accepted the physical boundary of the Sy. Nos. 96/4 and 95/1 as the correct boundary and accepted Ext. C7(a) sketch.

9. The infirmity that stemed out of Exts. C7 and C7(a) though taken note by the Trial Court and despite finding that the Surveyor and the Commissioner were not examined, it proceeded to accept Ext. C7 report and Ext. C7(a) plan. The learned Counsel for the plaintiff would, however, point out that there was no such plea raised before the First Appellate Court at the instance of the appellants and, therefore, it is to be presumed that they had no objection regarding Exts. C7 and C7(a). But this Court cannot remain oblivious of the fact that the Trial Court itself has recorded the objections raised by the defendants but still on a misconception, proceeded to accept Ext. C7(a) plan on the erroneous assumption that the physical boundary in Sy. Nos.96/4 and 95/1 is the correct boundary.

10. The learned Counsel for the plaintiff would, however, bring to the notice of this Court the findings rendered by the Trial Court to the effect that the Commissioner had identified the property with the available survey stones and that clearly identified the four boundaries of survey field 95. The Trial Court also found that the Commissioner and Surveyor had cross checked it with the measurements and thereby located the positions of those stones which were found missing. This Court cannot comprehend as to how the Trial Court arrived at a finding especially in the absence of the oral testimony of the Commissioner and the Surveyor. At any rate, going by Ext. C7 report, the findings rendered by the Trial Court is not supported under any circumstances. Therefore, it is inevitable for this Court to conclude that the measurement of the property done under Ext. C7 is certainly flawn.

11.    Resultantly, this Court answers the substantial questions law in favour of the appellants and holds as follows;

                  i)        The Courts below were not justified in granting a decree of perpetual injunction to the plaintiff without identifying the B schedule property.

                  ii)       The decree passed in the suit based on Ext. C7 report and C7(a) sketch cannot be sustained.

                  iii) The evidence at present does not show that the defendants have encroached upon plaint B schedule property in any manner.

12. As a necessary corollary, the suit should fail in the light of the findings rendered by this Court. But then, it must be noted that the decree passed by the Courts below concurrently is being reversed by this Court not because of any fault or the lack of evidence on the side of the plaintiff, but due to the error committed by the Advocate Commissioner. Necessarily, a remand is inevitable and that the suit should regain the attention of the Principal Munsiff Court, Ernakulam. Accordingly, the judgment and decree in O.S. No. 816 of 2008 on the files of the Principal Munsiff Court, Ernakulam as affirmed in A.S. No. 124 of 2012 of the Addl. District Court - V, Ernakulam are thus set aside. O.S. No. 816 of 2008 will stand restored to the files of the Principal Munsiff Court, Ernakulam. Exts. C7 report and C7(a) plan of the Advocate Commissioner will stand set aside and remitted back to the Advocate Commissioner for fresh identification in terms of the order passed by the Trial Court earlier. The Commissioner shall clearly demarcate the property from the survey line separating the property in Sy. No. 96/04 and 95/01. While identifying the property, the Commissioner shall not, under any circumstances, go by the physical boundary but try to identify the property according to lie as well as with the survey sketch available.

13. Before parting with this case, this Court needs to consider what should be the interim arrangement till the matter regains the attention of the Principal Munsiff Court, Ernakulam. It is now admitted by both sides that a pathway is in existence as found by the Commissioner in Ext. C7(a) plan. Though, the defendants dispute the exact measurement of the property, in the interest of justice, this Court feels that the parties should be directed to maintain status quo over the property identified by the Commissioner in Ext. C7(a) plan until and unless a fresh report is filed by him.

14. The parties shall appear before the Principal Munsiff Court, Ernakulam on 10.12.2025. On appearance, the Principal Munsiff Court, Ernakulam shall depute the very same Advocate Commissioner, if available, in order to carry out the inspection of the property and solicit a report as expeditiously as possible, at any rate within one month. On filing of the report, the parties shall be granted 3 opportunities each for adducing further evidence and on conclusion of such 3 postings, the Trial Court shall take up the suit for final disposal and endeavor to dispose of the suit as expeditiously as possible before the closure of the Courts for summer recess.

                  The appeal is disposed of as above.

                  Parties are directed to suffer their respective costs.