Judicial reliance on flawed reports undermines due process, necessitating remand for proper property identification in partition claims.

JUDGMENT

Heard in extenso Sri. N.M. Madhu, the learned Counsel for the appellants and Smt. Zohra, the learned Counsel for the 3^rd respondent. There is no appearance for the other respondents even though service is complete. Notice on admission was ordered and after extensively hearing the appeal on the question of admission, this Court is prima facie convinced that the judgments of the Courts below are unsustainable and hence this appeal is required to be admitted on the following substantial questions of law;

Whether the Courts below went wrong in disallowing the claim for partition of the property covered by a registered document and despite the same being clearly identified by the Commissioner under Ext. C4(a) plan and also in the absence of any contra evidence let in by defendants 4, 5 and 15 who were opposing the claim for partition?

With consent, the matter is taken on board for final hearing.

2. The short question involved in the present appeal is, whether the judgments of the Courts below can be sustained in spite of multiple irregularities committed by the Advocate Commissioner in the manner in which the plaint schedule property was identified? The plaintiff claimed partition of 12 acres of land belonging to his mother Kolothumthodi Ayisha Beevi Umma which she derived through Ext. A1 document, which is in the year 1955. It is contended that out of the documents covered by Ext. A1, substantial portions of the property were sold to different persons and the subsequent assignments were produced as Exts. A2 to A9 documents and the latest one being in the year 2000. Thus, it is claimed that after assignment, 12 acres of land which is to be divided, is remaining and it is included as ‘B’ schedule property in the plaint.

2.1. The mother of the plaintiff and defendants 1 to 3 expired on 11.04.2011 and thus the suit for partition was filed in the year 2012. The defendants 4 to 6 and 15 are third parties who tried to trespass into the plaint ‘B’ schedule property. The other defendants are also persons who are interested in the subject matter and hence impleaded. The suit was resisted mainly by defendants 4, 5 and 15. The 4^th defendant contended that Kolothumthodi Ayisha Beevi Umma had obtained 5.25 acres of land by oral lease from Nilambur Kovilakam and had sold to Karancheri Mohammedali and Kappil Kunhimoidu, who is the 14^th defendant by Sale Deed No. 4046/1965 of SRO, Wandoor, and, thereafter, they are in possession of 5.25 acres. Out of the same, 3.22 acres of property was assigned by Kunhimoidu to the 4^th defendant by oral sale in the year 1966 and, thereafter he obtained purchase certificate No. 1176/1976. Defendants 5 and 15 claimed that they are in possession of the remaining extent of property after the oral entrustment to the 4^th defendant and they had also obtained purchase certificate No. 879/1976.

2.2. With these material pleadings, the parties went to trial. Since the dispute centered mainly around the identity of plaint schedule property, the plaintiff took out an Advocate Commissioner to identify the plaint schedule properties at different locations. Initially an ex parte Commission was taken out and, thereafter, the Trial Court had appointed a Taluk Surveyor to assist the Advocate Commissioner who filed Ext. C2 report and Ext. C2(a) plan wherein contradictory statements were given as regards the identity of ‘B’ schedule property as well as the property covered by document No. 4046/1965. This necessitated the remission of Ext. C2 repo