Commissioners must adhere to proper records and legal protocols in boundary fixation cases; errors must be substantial for appeal.

JUDGMENT

The challenge in this Original Petition is to the order dated 02.11.2018 in I.A.Nos. 572 and 573 of 2016 in O.S.No.433 of 2012.

2. The Petitioners are defendant Nos.2 and 3 in the Original Suit. The suit is for fixation of the boundary separating the property of the plaintiff and defendants. On the application of the plaintiff, the properties were measured and identified by an Advocate Commissioner appointed by the Court below, who prepared Ext.C1 series.

3. The petitioners/defendants challenged Ext.C1 report and sought for setting aside the same. The plaintiff/respondent resisted the application.

4. The Trial Court dismissed the application seeking to set aside the commission report.

5. I have heard the learned counsel for the petitioners and the learned counsel for the respondent.

6. The challenge to Ext.C1 report is that the Commissioner had not measured and identified the respective properties based on the relevant survey records.

7. The learned counsel for the petitioner submitted that there was a specific request to identify the property with the aid of Field Measurement Book (FMB) maintained at the Village OfÏce. It is submitted that the identification of the property by the Commissioner is not proper, and non-consideration of some of the relevant materials maintained by the revenue authorities has caused prejudice to the petitioners/defendants.

8. The learned counsel for the respondent/plaintiff submitted that the Commissioner has relied on the relevant records while preparing Ext.C1 report.

9. I have gone through Ext.C1 commission report.

The Commissioner has stated in Ext.C1 report that as per the village records, re-survey has been conducted and defendants’ property and item No.1 of the plaint schedule property are placed in separate re-survey sub divisions of Kayaralam amsom Velam Desom. It is seen from Ext.C1 series that the Commissioner has relied on the relevant village records, including the re-survey plan. The objections raised by the petitioners have been met with by the Trial Court in the impugned order, the relevant portion of which is extracted below:-

“9. More or less identical challenges have been raised in both applications. Allegations have been raised to the effect that the Advocate commissioner did not afford opportunity to the counsel for the defendants to be present at the time of measurement. PW1 explained that on one occasion, he was late in arriving at the site due to the death of one of his relatives and though he contacted the counsel for the defendants through telephone, calls were not attended. Any how, the same is not proved to have caused any prejudice to the defendants.

10. Another challenge raised is that the Advocate commissioner did not consider the work memos submitted by the defendants and the property of the defendants was not measured as per their title deeds. PW1 explained that he was not handed over the title deeds of the defendants. The correctness of the said stand is sought to be challenged by the defendants. At this stage, I do not find any ground to disbelieve the said explanation of the Advocate commissioner.

11. The defendants contend that the properties were not measured as per the survey plan. Ext.C1 report states that the properties of both sides were measured as per title deeds and village records. It is specifically recorded that the property of the defendants was measured as per their basic title deed.

12. In the plan, the properties of both sides have been shown. The plan describes the properties as under the possession of the respective parties. But, the report brings out that the properties were measured as per title deeds.

13. The defendants have challenged the correctness of the measurement done by the Adv