The court emphasized the necessity of evaluating a Commissioner's report and related evidence before drawing legal conclusions on property title disputes.

JUDGMENT :

Easwaran S., J.

Admit.

2. Government Pleader takes notice for the respondents.

3. After hearing Shri.R.S.Kalkura, the learned counsel appearing for the appellant and Shri.K.Denny Devassy, the learned Senior Government Pleader, appearing for the respondents, this Court is of the view that on a short point this appeal could be disposed of and the following substantial questions of law are framed for consideration:-

(i) Is it not that the Courts below ought not have relied on the Commission Report as the same contains serious mistakes impinging upon the description of the plaint schedule properties

(ii) Is it not that the suppression of the original survey plan by the respondents which is in their custody ought to have been seriously viewed by the courts below and should not have the courts below taken an adverse inference?

(iii) Should not have the courts below directed the plaint schedule property be measured, identified and located as per the title deeds which clearly describe the property as being lying in old survey No. 2444/127, 128, 129, 130 and 131?

(iv) Was it right on the part of the Commissioner to have relied on resurvey records without recourse to the original survey plan pertaining to the description of the property in the title deeds of the plaintiff?

4. With consent, taken on board for final hearing.

5. The plaintiff in a suit for declaration of title and consequential reliefs, is the appellant. According to the appellant, an extent of 9 cents of property and a building in survey No.2444/127, 128, 129, 130 and 131 which falls in Resurvey No.80 and 81 in block No.119 of Thycaud Village are obtained by her by virtue of a settlement deed No.2769/2005 of SRO Chalai. When the resurvey proceedings happened, the actual extent of property was entered as 2.5 Ares (1.21 Ares in Resurvey No.80 and 0.69 Ares in Resurvey No.81) of Thycaud Village. The predecessor of the plaintiff was in possession of the 9 cents of property vide registered document No.1109/1122 M.E. Though several requests were made to the revenue authorities to correct the same in terms of Section 11 of the Kerala Survey and Boundaries Act, 1961 , and that an appeal was preferred, no action was taken in the said request. Hence the suit. The defendants resisted the suit and contended that the plaintiff is seeking a declaration of title over the Government Poramboke land and therefore not entitled to the reliefs sought for. As regards the proceedings before the resurvey authority, it was pointed out that the subsequent report shows that the 4 cents of property is in the Government Poramboke and therefore the reliefs cannot be granted. On behalf of the plaintiff, Exts.A1 to A9 were marked and PW1 was examined. On behalf of the defendants, Exts.B1 to B6 were marked and DW1 was examined. An Advocate Commissioner was appointed, who filed Ext.C1 report and Ext.C1(a) sketch. The trial court even without referring to the said report, proceeded to dismiss the suit saying that the plaintiff has not established her case. Accordingly, the suit was dismissed. Aggrieved, the plaintiff filed an appeal. The First Appellate Court took note of the report of the Advocate Commissioner and found that the Advocate Commissioner had correctly found that the property of the plaintiff was lying in a Poramboke land and therefore the plaintiff is not entitled for declaration as sought for and dismissed the appeal. Hence this appeal.

6. In this appeal, the appellant contends that the judgment of the trial court is unsustainable inasmuch as the trial court has not even bothered to ascertain the true state of facts as evident from Ext.B6 as well as the report of the Advocate Commissioner. Referring to Ext.B6, the learned counsel appearing for the appellant pointed out th