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2025 Supreme(SC) 908
SUPREME COURT OF INDIA
B.R. GAVAI, CJI, AUGUSTINE GEORGE MASIH, J.
Peter Augustine – Appellant
Versus
K.V. Xavier and Others – Respondents
Civil Appeal No. 7160 of 2025 [Arising Out of SLP (C) No. 7988 of 2024]
Decided On : 23-05-2025
For the Petitioner(s): Mr. Dama Seshadri Naidu, Sr. Adv. Mr. Tomy Chacko, AOR Ms. Lakshmi Kg, Adv. Ms. Tualia Rehman, Adv. Mr. Ashish Jacob Mathew, Adv. Mr. Shubhankar Sharma, Adv.
For the Respondent(s): Mr. Manoj V George, Adv. Ms. Shilpa Liza George, AOR Mr. Bibhu Dutta Das, Adv. Mr. Nasib Masih, Adv. Mr. Azeem Samuel, Adv. Ms. Brinda, Adv. Ms. Antra Srivastava, Adv. Mr. Raja Ramalingam Sethupathi R, Adv.
IMPORTANT POINT
Court Commissioner – Appointment of Court Commissioner should not be made when matter can be decided on materials already on record.
Headnote:
Civil Procedure Code, 1908 – Order XXVI Rule 9 – Appointment of Court Commissioner – Suit seeking declaration of title, fixation of boundary and injunction vis-a-vis subject land – Suit dismissed by Trial Court – High Court allowed appeal of respondents and remanded the matter back to Trial Court for reconsideration of evidence only on the ground that there has been no proper identification of subject land by Court Commissioner – When the matter could have been decided on interpretation of sale deed, conveyance deed and settlement deed, again remitting the matter only for appointment of another Court Commissioner would further delay proceedings between parties which have been pending for more than 14 years – Single Judge of High Court requested to decide appeal on its own merits in accordance with law – Appeal allowed. (Paras 13, 14, 15 and 16)
Facts of the case:
In the year 1993, it appears that several partition and settlement deeds were executed in respect of subject land in favour of appellant thereby devolving interest of subject land upon appellant. Single Judge of High Court has remitted the matter back to Trial Court only on the ground that there has been no proper identification of subject land by Court Commissioner.
Findings of Court:
Single Judge of High Court has erred in remitting the matter on second occasion and as a consequence, present appeal deserves to be allowed.
Result : Appeal allowed.
| Table of Content |
|---|
| 1. legal dispute over land rights and prior court orders. (Para 4 , 5 , 6 , 7) |
| 2. errors in remanding a case when issues can be decided based on existing documents. (Para 8 , 12 , 13 , 14) |
| 3. court's need to identify property boundaries before remanding. (Para 9 , 10 , 11) |
| 4. decision to allow the appeal and expedite trial court's ruling. (Para 15 , 16) |
JUDGMENT :
B.R. GAVAI, CJI.
1. Leave granted.
2. The present appeal challenges the judgment and final order dated 9th January 2024 passed by the High Court of Kerala at Ernakulam1 [Hereinafter referred to as “High Court”] in R.F.A. No. 42 of 2018 whereby the learned Single Judge of the High Court set aside the judgment of the Principal Sub Court, Ernakulam2 [Hereinafter referred to as “Trial Court”] allowing the appeal filed by the respondents and remanding the matter back to the Trial Court for de-novo disposal.
3. The facts, in brief, giving rise to the present appeal are as under:
3.1 On 8th February 1955, father of the appellant executed a sale deed being Sale Deed No. 122/19553 [Hereinafter referred to as “sale deed”] for a consideration of Rs. 500/- conveying the “Verumpattom Rights” over 9 cents of land in Survey No. 1236 in Poomthura Village, Ernakulam, pertaining to Kallor Mana in favour of the father of the respondents.
3.2 Subsequently, on 13th February 1964, father of the appellant executed a conveyance deed being Conveyance Deed No. 185/19644 [Hereinafter referred to as “conveyance deed”] for a consideration of Rs. 100/- transferring the “Jenmam Rights” over 9 cents of land in Survey No. 1250 in Poomthura Village, Ernakulam5 [Hereinafter referred to as “subject land”] in favour of the father of the respondents.
3.3 In the year 1993, it appears that several partition and settlement deeds were executed in respect of the subject land in favour of the appellant thereby devolving the interest of the subject land upon the appellant.
3.4 In the meantime, on 22nd March 1994, the father of the respondents executed a settlement deed being Settlement Deed No. 1560/19946 [Hereinafter referred to as “settlement deed”] in favour of respondent No. 1 over the land obtained under Sale Deed No. 122/1955 and Conveyance Deed No. 185/1964.
3.5 In order to resolve the dispute over the subject land, the respondents herein filed a suit being O.S. No. 246 of 2011 before the Trial Court seeking declaration of title, fixation of boundary and injunction vis-a-vis the subject land against the appellant. The Trial Court vide order dated 31st October 2017 dismissed the suit.
3.6 Aggrieved thereby, the respondents filed an appeal being R.F.A. No. 42 of 2018 before the High Court wherein vide order dated 5th July 2021, the High Court allowed the appeal of the respondents and remanded the matter back to the Trial Court for reconsideration of evidence.
3.7 Discontented by the order passed by the High Court, the appellant approached this Court by way of a special leave petition being SLP (C) No. 13602 of 2021 wherein this Court vide order dated 10th April 2023, granted leave and held that the approach of the High Court in passing the remand order was totally erroneous since it lacked necessary reasoning. Therefore, this Court set aside the order of the High Court dated 5th July 2021 and remitted the matter back to the High Court directing to decide the matter afresh.
3.8 Ultimately, by way of the impugned judgment and final order dated 9th January 2024, the High Court allowed the appeal filed by the respondents and once again remanded the suit back to the Trial Court for de-novo disposal. Further, the High Court afforded an opportunity to the parties to adduce further evidence.
4. Being aggrieved thereby, the present special leave petition was filed by the appellant wherein notice was issued by this Court vide order dated 8th April 2024. By the same order, this Court directed the parties to maintain status quo.
5. We have heard Shri Dama Seshadri Naidu, learned Senior Counsel appearing on behalf of the
