Kerala High Court Remands Decades-Old Boundary Dispute, Cites Flaws in Suit Framing and Commissioner's Report

Ernakulam, Kerala – The Hon'ble Mr. Justice Easwaran S.of the Kerala High Court, in a significant ruling on May 21, 2025, set aside concurrent judgments of two lower courts in a long-standing property dispute. The High Court found critical errors in how the suit was framed and in the reliance placed on an Advocate Commissioner's report, remanding the case (RSA No. 876 of 2014) for a fresh trial by the Munsiff Court, Chittur.

Case Background

The dispute originated with O.S. No. 557 of 2004 filed by Ramakrishnan (plaintiff) against A.P. Sundaran (1st defendant) in the Munsiff Court, Chittur. The plaintiff sought fixation of boundaries for his property (Plaint A schedule), alleging encroachment by the defendant who had purportedly planted trees on his land. The plaintiff's property was claimed through a partition deed from 1979, devolving upon him and other legal heirs after his father's death in 1984.

The defendant contested the suit, denying the existence of ridges claimed by the plaintiff and asserting his own rightful possession based on a 1999 purchase deed (Ext.B2). He also raised a plea of adverse possession over 50 years and argued the suit was bad for non-joinder of co-owners.

The trial court, and subsequently the II Additional District Court, Palakkad in A.S. No. 136 of 2010, ruled in favour of the plaintiff, relying heavily on an Advocate Commissioner's report and plan (Ext.C3 and C3(a)). Aggrieved, the 1st defendant, A.P. Sundaran , approached the High Court in a Regular Second Appeal.

Substantial Questions of Law

The High Court admitted the appeal on September 29, 2022, framing two substantial questions of law: 1. Whether a suit for fixation of boundary without a prayer for recovery of possession is maintainable, especially when encroachment is alleged over a large area? 2. Whether the fixation of boundary as per Exts.C3 and C3(a) commission report and plan was legal and proper?

Arguments Presented

Appellant's ( A.P. Sundaran ) Contentions: Sri. P.M. Joshi, counsel for the appellant, argued that: * The suit was not maintainable without a prayer for recovery of possession, given the plaintiff's clear admission of trespass and encroachment by the defendant. * The Advocate Commissioner's identification of the property (Ext.C3 and C3(a)) was erroneous as it relied merely on resurvey records, ignoring the title deeds of both parties and old survey records, contrary to earlier court directions. * The trial court improperly discarded an earlier commissioner's report (Ext.C2) which had referenced old survey records. * There were serious doubts about an alleged concession by the defendant for identification based solely on resurvey records, particularly concerning a suspicious handwritten insertion in the trial court's 'A' diary.

Respondent's ( Ramakrishnan ) Contentions: Sri. Sajan Vargheese K., counsel for the respondent, contended that: * The concurrent findings of the lower courts should not be disturbed. * The Advocate Commissioner had correctly identified the property. * The defendant had indeed conceded to measurement based on resurvey records. * The defendant's property was confined to Resurvey No.284/5, as shown in Ext.C3(a).

High Court's Analysis and Rulings

The High Court meticulously examined the pleadings, evidence, and legal precedents.

On Maintainability of Suit (First Question of Law)

Justice Easwaran S. observed that while the suit as initially framed for a mandatory injunction concerning trees might have been maintainable, the situation changed "drastically" when the plaint was amended. The amendment sought fixation of boundary for the "entire extent of 3.05 Acres of land."

The Court cited its own precedents: * Anjil Vellachi & Others Vs. Mamuni Bhaskaran [2009(3)KHC 728]: A suit for boundary fixation cannot be a shortcut for a suit for recovery of possession. * Susi vs. Sujathan & Another [2022(1) KHC 671] and Kathirummal Chirammal Karthyayani vs. Kunnool Balakrishnan & Others [2014(2) KHC 108]: Boundary fixation suits without recovery prayer are maintainable for narrow strips of land, but not for large extents where encroachment is claimed, especially if based solely on survey records.

The Court held:

"in the light of the fact that the plaintiff had a specific case of encroachment by the 1st defendant into the plaint schedule property and that the fixation of boundary sought for is over an extent of 3.05 Acres, it was imperative on the part of the plaintiff to have incorporated the defendant’s property also as a schedule so as to enable the court to correctly fix the boundary..."

Given that both parties had properties in the same old survey number (2035/2), scheduling the defendant's property was crucial. The Court concluded that "the suit as such framed without seeking recovery of possession was not maintainable."

On Legality of Commissioner's Report (Second Question of Law)

The Court found the process leading to the crucial Ext.C3 report and C3(a) plan highly problematic. * An initial commissioner's report (Ext.C1) was deemed incomplete. A second commissioner submitted Ext.C2 and C2(a). * Dissatisfied, the plaintiff sought to set aside Ext.C2. The trial court, on 8.8.2008, remitted the report, directing measurement based on "title deed, old survey records, re survey records and also possession." * A newly appointed commissioner filed an interim report stating inability to identify the property and sought guidance. * On 19.12.2008, the trial court noted the plaintiff would be satisfied if identification was done based on resurvey records. The Court expressed "a great amount of suspicion" regarding a handwritten insertion in the 'A' diary suggesting the defendant had "no [objection]" (the sentence being incomplete and in different handwriting).

The High Court stated:

"...the proceedings dated 19.12.2008 cannot in any manner lead to a conclusion that the advocate commissioner was directed by the trial court to identify the property based on resurvey records alone."

It emphasized that the clear direction of 8.8.2008 (to use title deeds, old survey records, and possession) was not followed. The Court noted that the defendant's title deed (Ext.B2) showed his property in old survey numbers 2016 and 2035/2. The plaintiff also had property in 2035/2. The Village Officer (DW1) even testified that the defendant's property was not tallying with survey No.2035/2, and that mistakes during resurvey were common.

Therefore, the Court held:

"Having not done [identification based on title deeds, old survey records, and possession], this Court has no hesitation to hold that Ext.C3 report of the Advocate Commissioner lacks evidentiary value and Ext.C3(a) plan has absolutely no relevance at all."

Since the trial court's decree was solely based on this flawed report, it was deemed unsustainable.

Impact of Decree Execution

The respondent's counsel pointed out that the decree had already been executed, boundaries fixed as per Ext.C3(a), and a barbed fence erected. However, the High Court stated this could not "stand scrutiny of law," as the appeal was admitted after hearing the respondent, who was aware of the consequences if the appeal succeeded.

Final Decision and Directions

The High Court allowed the appeal, setting aside the judgments of the Munsiff Court, Chittur, and the II Additional District Court, Palakkad. The suit (O.S. No.557/2004) was remanded to the Munsiff Court, Chittur, for a fresh trial with the following directions: 1. The Advocate Commissioner, if available, shall inspect the property strictly in terms of the order dated 8.8.2008 in IA No.1690 of 2008 and submit a report. 2. The Munsiff Court shall proceed based on the new report and take the suit to a logical conclusion. 3. Parties are given liberty to adduce fresh evidence. 4. Parties are directed to appear before the Munsiff Court, Chittur on June 23, 2025. 5. The Munsiff Court shall endeavor to dispose of the suit (from 2004) expeditiously. 6. The appellant/1st defendant is given liberty to move for restitution under Section 144 of the Code of Civil Procedure.

No order as to costs was made. This judgment underscores the critical importance of correctly framing a suit, especially concerning recovery of possession in encroachment cases, and the necessity for Advocate Commissioners to adhere strictly to court mandates for property identification.