A property identification must adhere to original title deeds rather than solely rely on current possession or resurvey plans.

JUDGMENT

The petitioners are the plaintiffs in O.S.No.143 of

2013 on the file of the Sub Court, Karunagappally. The suit was originally filed as O.S.No.299 of 1997 before the Sub Court, Kollam and later transferred to the Sub Court, Karunagappally and renumbered. The suit is one for recovery of possession, fixation of boundaries and for permanent prohibitory injunction. The defendants have filed a counter claim. The suit and the counter claim were originally dismissed and the plaintiffs as well as the defendants had preferred A.S. Nos.115 and 121 of 2016 before the first appellate court. The appeals were allowed and the case was remanded back with specific directions to the court below. Ext.P9 is the common judgment in the appeals. In paragraph 23(4) of the judgment, the appellate court has directed as follows:

“4. The Ext.C1 - Commissioner's Report and Mahazar and Ext.C1(a)-Plan are hereby set aside and the same are remitted to the same Advocate Commissioner to identify the properties scheduled in the plaint as well as in the counter claim of the defendant Nos.1 and 2 on the basis of the respective title documents, relevant survey plans, and pleadings of the parties. If, in case, the very same advocate commissioner is unavailable to execute the work, the lower court is at liberty to appoint a fresh advocate commissioner to identify the properties and the cost of the same shall be shared by the plaintiff and the defendant Nos.1&2. The cost that may occur for the work done by the very same advocate commissioner should also be shared by the plaintiffs and the defendant Nos. 1&2 and if any of the parties is reluctant to share the burden, the court below is also at liberty to pass necessary follow-up orders to permit either of the parties to bear the expenses.”

2. After the remand, a fresh report was filed by the Advocate Commissioner along with a plan. A true copy of the said report and plan has been produced as Ext.P10. The plaintiffs filed I.A. No.505 of 2019 before the Sub Court, Karunagappally praying to set aside the commission report and to call for a fresh report. The contention of the plaintiffs in the above I.A. was that the identification of the property was not done as directed by the appellate court in Ext.P9 judgment. It is contended that the property was not measured out using the title deeds and that the identification was done with the help of the resurvey plan. It is submitted that the properties were purchased at a time when the resurvey had not yet been over, and the title deeds show the property as per the survey plan which was existing at that point in time. It is hence submitted that an identification with the resurvey plan will not be sufficient in order to arrive at the decision regarding the contention of the plaintiffs that there is encroachment. By the impugned order, the court below has rejected the application stating that the Commissioner has identified the properties and there is no requirement to set aside the report. The court has noted that no discrepancy has been noted or brought out in the measurement in the commission report. The order of the court insofar as it says that there is no requirement to set aside the commission report may be justified. However, as far as the prayer regarding a fresh commission is concerned, the order does not give any reason as to why the said prayer is not allowed, particularly since it is evident from the report that the resurvey plan alone has been looked into. It is not clear as to whether there is any difference between the survey plan and the resurvey plan. Without making an attempt to identify the property as per the title deed and as per the records which were available at the time of execution of the title deeds the identity cannot be concl