The main legal point established in the judgment is that the legal position on the issuance of a second commission without setting aside the first one is governed by the specific provisions of Order XXVI CPC, and the dissatisfaction entertained by the court in the proceedings of the commissioner or the report thereof is only an initial assessment in nature and shall not be read as a substitute for setting aside the report or wiping it off from the record or evidence.

P. Somarajan, J.

This Second Regular Appeal is preferred against the decree and judgment of Additional District Court, Thrissur in A.S. No. 280/1999 dated 4.12.2003 by the plaintiff in the original suit in O.S. 2295/1988 on the file of the Munsiff Court, Thrissur. The appeal had initially come up before a learned Single Judge of this Court and it was placed before us doubting the legal position laid down by a Division Bench of this Court in Swami Premananda Bharathi v. Swami Yogananda Bharathi [(1985 KLT 144). Earlier, a single bench of this Court in Dr. Subramonian v. K.S.E.B. [(1987 KLT 355] expressed doubt about the legal proposition laid down in the Swami Premananda Bharathi's case but did not opt to refer the issue to a Division Bench. In Hydrose V. Govindankutty, [(1981) KLT 360] M.P. Menon. J. took the view that without setting aside the report submitted by a finger print expert, another finger print expert can be appointed. Another decision drawn in Sivaraman v. Narayanan [(1986) KLT 578] Varghese Kalliyath J. took the view that the court has jurisdiction to appoint the same Commissioner which he omitted to note in the report already submitted. So the question came up whether it is permissible to have a second report of commission without wiping out the earlier one and doubted the legal preposition laid down in Swami Premananda Bharathi's case (supra). Hence the matter placed before us.

2. Before going into the reference, it is worthful to narrate the factual sequences involved in the case. The suit in O.S. No. 2295/88 on the file of Principal Munsiff, Thrissur, was filed for recovery of possession on the strength of title, mandatory injunction and for damages. There are two items of property scheduled in the plaint, which were originally belonged to Chungath Ouseph, by virtue of sale deed of the year 1954. It was later on purchased by the plaintiff on 23.11.1988 from the son of Chungath Ouseph by name Jose. Item No.1 property is the only access to Item No.2 of plaint schedule. Its eastern end starts from the municipal road lying north-south direction. A gate was installed at the entrance by its previous owner. The property lying on either side of Item No.1 is owned and possessed by the defendant. When they attempted to demolish the gate, it has necessitated the institution of the present suit, by the plaintiffs for recovery of possession, for damages, for permanent prohibitory injunction and mandatory injunction to remove the pipeline drawn through Item No. 1 property.

3. The defendant contested the suit alleging that the plaint Item No.1 is the way used by the convent as means of access. The defendant has purchased the properties in the year 1960. The school compound of the defendant is having an extent of 2 acre 91 cents, which is situated on the southern side of convent property. But, the extent of school compound is mistakenly shown in the document. There was a wooden gate in front of their property and it was replaced with an iron gate in the year 1968 by the defendants. A pipeline was drawn across the plaint Item No.1 property. Telephone and electric lines were also drawn through the disputed property. The disputed road is the only way leading to the convent building which faces towards south and the defendants are in exclusive possession and ownership of plaint schedule Item No.1. Even if the plaintiff has any right, title or interest over the property, the same is stood as lost by adverse possession and limitation. Hence, they pressed for dismissal of the suit.

4. An additional written statement was also filed disputing the title of plaintiff over the plaint schedule Item No.1 property. Plaint schedule Item No. 1 is not a property used by the plaintiff as means of access. The claim of damage is also disputed. The structures existing in Item No.1 were in existence right from the year 1949.

5. A second additional written statement was also filed disputing the description of Item No.1 property after its amen