SELVIversusGOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.

510                      [2018]REPORTS
               SUPREME COURT   6 S.C.R. 510                 [2018] 6 S.C.R.


A                                     SELVI
                                        v.
           GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.
                        (Civil Appeal No. 21834 of 2017)
B                                 MAY 15, 2018
           [R. BANUMATHI AND L. NAGESWARA RAO, JJ.]
             Mortgage – Redemption of – Suit for redeeming the mortgaged
      properties, filed by plaintiffs inter alia against Respondent-Defendant
      No.2 – Respondent resisted the suit inter alia contending that property
C
      in old Survey No.988 belongs to him– Trial court passed the final
      decree holding that the plaintiffs are entitled to redeem the suit
      property and that old Survey No.988 which the respondent claimed
      ownership of, cannot be exempted from the suit property –
      Respondent filed appeal, which was dismissed by First Appellate
D     Court – High Court allowed the second appeal of respondent – On
      appeal, held: In view of the objections repeatedly filed by the
      respondent reiterating that old Survey No.988 should be excluded
      from the properties to be partitioned, the trial court ought to have
      held an enquiry and directed the parties to adduce evidence as to
      the right claimed by the respondent in old Survey No.988 – Though,
E
      the parties are fighting litigation for more than five decades, but in
      order to meet the ends of justice, judgment of High Court and the
      courts below are set aside and matter remitted to trial court for
      deciding it afresh – Directions issued – Code of Civil Procedure,
      1908 – s.97.
F
            Allowing the appeal, the Court
            HELD: 1.1 An Advocate-Commissioner was appointed to
      measure the suit properties according to the boundaries
      contained in the documents filed in the suit and to locate the
      properties contained in the Survey numbers 990, 983-A and 988.
G     Right from the beginning, while filing the written statement and
      also the objections filed to the Commissioner’s Report, the
      respondent-second defendant contended that old Survey No.988
      (R.S. No.123/9) belongs to him. [Paras 9, 10] [515-F; 516-A-B]

H
                                     510
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                    511


       1.2 The Commissioner filed its Preliminary Report on which      A
the respondent filed detailed objections stating that the
Commissioner, while locating Survey No.988, did not follow the
boundary descriptions contained in the documents. Based on the
objections filed by the respondent, the Advocate-Commissioner
revisited the property and filed his Report noticing Survey No.988
                                                                       B
falls within the description of the suit properties. [Paras 11, 12]
[516-C-D; 517-B-C]
      1.3 Appellant-third plaintiff filed detailed objections to the
Commissioner’s Report stating that Survey No.988 cannot be
excluded from the properties to be partitioned. The Respondent
also filed detailed objections to the Commissioner’s Report.           C
Considering the objections repeatedly filed by the respondent
reiterating that Survey No.988 falls within the description of the
suit properties and that should be excluded from the properties
to be partitioned, the trial court ought to have held an enquiry
and directed the parties to adduce evidence as to the right claimed    D
by the respondent in old Survey No.988 (R.S. No.123/9) and what
was the basis on which the possession of the respondent was
upheld in the proceedings under Section 145 Cr.P.C. and in CRP
No.45 of 1992. [Paras 13, 14] [517-E-F; 518-D]
      1.4 As per Section 97, CPC, where any party aggrieved by         E
a preliminary decree passed after the commencement of this Code
does not appeal from such decree, he shall be precluded from
disputing its correctness in any appeal which may be preferred
from the final decree. Of course, the respondent did not file the
appeal against the preliminary decree challenging its correctness.
But as pointed out by the respondent, in the description of the        F
suit properties, Survey No.988 was not shown. As pointed out by
the High Court, in para No. (13) of the written statement,
respondent clearly averred that he is the owner of the adjoining
property in Survey No.988 in which the plaintiffs and the other
defendants have no right and that the third defendant is residing      G
in a building belonging to the respondent in the said Survey No.988
on rental basis. In spite of the objections raised by the respondent
as to the boundaries and description of the suit properties and
also claiming right in Survey No.988 stated to be falling within
those boundaries, the plaintiffs did not amend the description of
                                                                       H
512            SUPREME COURT REPORTS                      [2018] 6 S.C.R.


A     the suit properties by bringing in Survey No.988 in the suit
      property. It was in this context, in their written statement, the
      defendants have stated that “the defendants have no objections
      to surrender the mortgage right in respect of Plaint B Schedule
      items…..”. [Para 16] [518-G-H; 519-A-C]
B           1.5 Two Commissioners earlier appointed have inspected
      the suit properties and filed their Reports stating that the suit
      properties were not identifiable. Only when the Advocate-
      Commissioner inspected the suit property, he noticed that
      Survey No.988 was falling within the description of the
      boundaries stated in the Plaint. Since the description of the suit
C     property did not contain Survey No.988, the fact that the
      respondent did not prefer appeal against the preliminary decree,
      cannot be put against the respondent. [Para 17] [519-D-E]
             1.6 In view of the stand taken by the respondent that he is
      entitled to the adjoining property in Survey No.988 by virtue of
D     the sale deed of the year 1951 and the consistent objections raised
      by him to the Commissioner’s Report, in the final decree
      proceedings, the trial court ought to have directed the parties to
      adduce evidence to enable the court to ascertain the truth as to
      the correct description of the suit property and also the right
E     claimed by the respondent in Survey No.988. The parties are
      fighting litigation for more than five decades; but in order to meet
      the ends of justice, the impugned judgment of the High Court
      and the courts below are liable to be set aside and the matter be
      remitted to the trial court for deciding the matter afresh. It is
      made clear that after the matter is remitted to the trial court
F     based on his affidavit, second plaintiff is not entitled to put forth
      any claim. It is also made clear that the locus of third plaintiff to
      pursue the matter also shall not be called for question nor be
      challenged. [Para 18, 19] [519-G-H; 520-G-H]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21834
G     of 2017.
           From the Judgment and Order dated 13.04.2006 of the High Court
      of Madras at Madurai Bench in S. A. No. 255 of 2005
            V. Prabhakar, Ms. Jyoti Parasher, N.J. Ram Chandar,
      Mrs. Revathy Raghavan, Advs. for the Appellant.
H
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                             513


      M. S. Ganesh, Sr. Adv., R. Ayyam Perumal, K. Seshachary,                  A
M. Gireesh Kumar, Ankur S. Kulkarni, Sriram P., Vijay Kumar, K. V.
Vijaykumar, Advs. for the Respondents.
      The Judgment of the Court was delivered by
       R. BANUMATHI, J. 1. This appeal arises out of the judgment
dated 13.04.2006 passed by the High Court of Madras at Madurai Bench            B
in Second Appeal No.255 of 2005 in and by which the High Court set
aside the final decree passed by the trial court and affirmed by the First
Appellate Court by holding that the appellant/plaintiff cannot lay a claim
in respect of Survey No.988 which the first respondent/second defendant
claims entitled to.                                                             C
      2. Brief facts as seen from the Plaint averments are as follows:-
         The suit properties that is plaint A Schedule property and Plaint
B Schedule property belonged to Kali Pillai, Krishna Pillai and others of
Varukkapilavila Veedu, which was outstanding on a mortgage. On
27.12.1088 M.E.(11.08.1913) Kali Pillai, Krishna Pillai, Champakakutty          D
Pillai alias Bhagvathi Pillai and Kalyani Pillai and Lakshmi Pillai
mortgaged the said properties to Kutti Bhagvathi for Rs.785/- (Rs.109.04).
The mortgage was an usufructuary with Kuzhikkanam for a period of
twelve years. While Kutti Bhagvathi was enjoying it, she assigned her
mortgage right to Eravi Pillai Parvathi Pillai from whom Parameswaran           E
Pillai of Kavavilai got an assignment under deed No.1231 of 1107 and
came into possession. Parameswaran Pillai sub-mortgaged portion of
Plaint B Schedule property to Kesava Pillai Narayana Pillai which right
has become vested in the second Defendant. The fourth Defendant has
also right in the suit mortgage. The third Defendant has also right in the
suit mortgage. The third Defendant has leasehold right over some portion        F
of B Schedule property under Parameswaran Pillai. The first Defendant
is in possession of A Schedule property as the heir of the deceased
assignee mortgagor Parameswaran Pillai. The mortgagors 1 and 2 died
and their right devolved on the legal heirs of mortgagors - Kalyani Pillai
and her mother Lakshmi Pillai. The first Plaintiff - Kalyani Pillai inherited   G
the equity of redemption of the plaint property on the death of her mother
Lakshmi Pillai. The first Plaintiff is thus the mortgagor by derivative title
who is entitled to redeem the mortgage from Defendant Nos.1 to 4. In
so far as her mortgage rights, the first plaintiff-Kalyani Pillai executed
an agreement of sale on 27.12.1968 in favour of the second Plaintiff -
                                                                                H
514             SUPREME COURT REPORTS                            [2018] 6 S.C.R.


A     Vasudevan Pillai with respect to the mortgage property and as such he
      has joined as the second Plaintiff. Suit Properties within the stated
      boundaries are said to be situated in respect of A Schedule property in
      Survey numbers 990 - extent of 85 cents and Survey No.983/12A - 1
      acre and 35 cents; Survey No.983/13A - 5 acres 96 cents and Survey
      No.983/14A – 0.64 acres in respect of B schedule property.
B
            3. The respondent-second defendant who is the main contesting
      defendant resisted the suit inter-alia contending that he is in possession
      of Survey No.983/14A for which the appellants/plaintiffs have no right
      of possession. The second defendant-Gopalakrishnan Nair inter-alia
      further pleaded that the property in old Survey No.988 belongs to him
C     and the third defendant is residing in a building situated in Survey No.988
      on rental basis.
              4. The parties went for trial. Upon consideration of evidence, the
      trial court passed the preliminary decree for partition on 07.08.1976 holding
      that the plaintiffs-Kalyani Pillai and Vasudevan Pillai are entitled to redeem
D     and recover possession of 7.40 acres from defendant Nos.1 to 4 by
      depositing of mortgage money of Rs.109.81Paise. The trial court passed
      the preliminary decree for partition to the said extent of 7.40 acres in the
      suit property to which the plaintiffs are entitled for partition and separate
      possession.
E            5. First plaintiff - Kalyani Pillai executed an agreement for sale
      on 27.12.1968 in favour of the second plaintiff-Vasudevan Pillai. The
      second plaintiff-Vasudevan Pillai assigned the above said agreement in
      favour of one Rajayyan on 05.08.1978 and the said Rajayyan assigned
      that agreement in favour of third plaintiff-Selvi, wife of Devaraj on
F     10.03.1983. In the final decree proceedings, third plaintiff-Selvi got
      herself impleaded in the suit by filing a separate petition. All the three
      plaintiffs filed final decree application in I.A. No.120 of 1985 in OS
      No.1516 of 1969. The trial court by its judgment dated 19.09.2001 passed
      the final decree for partition holding that Survey No.988 which the second
      defendant claims cannot be exempted from the suit property. In the final
G     decree, the trial court held that the appellant/plaintiff is entitled to the
      portion as “ABCDEFXVUTSRQKLMNOP” marked in Exhibit C.2,
      entitled to the possession and that the plaintiffs are entitled to redeem
      the suit property. The Court further directed that the legal heirs of third
      defendant-Krishna Pillai are entitled to get a sum of Rs.2,64,607.50 as
H     development charges of the suit property.
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                             515
                 [R. BANUMATHI, J.]

       6. Being aggrieved by the final decree, the second defendant             A
Gopalakrishnan Nair preferred an appeal in AS No.6 of 2002 on the file
of Sub-court, Kuzhithurai. The First Appellate Court dismissed the appeal
vide its judgment dated 20.08.2004 holding that no appeal had been
preferred from the preliminary decree dated 07.08.1976 by the second
defendant and that he cannot challenge the correctness of the preliminary
                                                                                B
decree in the final decree proceedings. The First Appellate Court
confirmed the final decree passed by the trial court and dismissed the
appeal observing that Gopalakrishnan Nair cannot have any valid objection
for the final decree in favour of the plaintiffs.
        7. Being dissatisfied with the concurrent findings, the first
respondent preferred appeal in SA No.255 of 2005 before Madras High             C
Court at Madurai Bench. The High Court proceeded to hold that the
first respondent/second defendant in his written statement raised a plea
of ownership in respect of Survey No.988 and that by its order dated
27.04.1998, the trial court also directed exclusion of the property in Survey
No.988. After referring to the order of the trial court dated 27.04.1998        D
and the Commissioner’s Report, the High Court held that the suit property
in the preliminary decree does not cover Survey No.988 and was removed
from the ambit of the suit property by the trial court and on those findings,
the High Court allowed the second appeal. The High Court held that the
final decree will stand as it is, excluding Survey No.988. Being aggrieved,
the appellant/plaintiff is before this Court.                                   E

      8. We have heard the learned counsel for the parties at length and
perused the impugned judgment and carefully considered the evidence
and materials placed on record.
      9. Right from the beginning, while filing the written statement and       F
also the objections filed to the Commissioner’s Report, the second
defendant-Gopalakrishnan Nair has been contending that old Survey
No.988 (R.S. No.123/9) belongs to him. In his objections filed in I.A.
No.120 of 1985, the second defendant-Gopalakrishnan Nair raised the
following objections:-
                                                                                G
      “……R.S. No.123/9 which is old survey No.988 belongs to the
      second defendant. The title of the second defendant to R.S.
      No.123/9 was declared and the defendants 9 to 11 who are the
      LRs of the third defendant are restrained by injunction from
      disturbing the quiet and peaceful possession of the land and trees
      excluding the building and courtyard…….”                                  H
516            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A            10. Mr. Raveendran Nair, Advocate-Commissioner was appointed
      to measure the suit properties according to the boundaries contained in
      the documents filed in the suit namely Exts. A.1, A.2, B.1, B.2 and to
      locate the properties contained in the Survey numbers 990, 983-A and
      988. In the said order dated 27.04.1998, the trial court directed exclusion
      of Survey No.988 as seen from the following:-
B
            “…..Further, he is directed that after measuring and locating the
            suit properties viz., in Survey No.990 and 983-A and the second
            defendant’s property which is situated in Survey No.988, the
            Commissioner may allot the plaintiff’s share of 7 Acres 40 cents
            both in Survey No.990 and 983 or in any of the above two survey
C           numbers….”
            11. The Commissioner filed its Preliminary Report on 17.02.1999,
      for which the second defendant-Gopalakrishnan Nair filed detailed
      objections stating that the Commissioner, while locating Survey No.988,
      did not follow the boundary descriptions contained in the documents.
D     Relevant portion of the objections filed by the second defendant-
      Gopalakrishnan Nair inter alia reads as under:-
            “…….
            4. The Commissioner did not locate the Plaint Schedule survey
E           numbers i.e., Survey Nos.990 and 983 and the other Survey
            Number 988 as directed by this Hon’ble Court.
            5. The Commissioner failed to understand that a partition is
            impossible in this suit without locating the plaint schedule survey
            numbers 990 and 983.
F           6. It is seen from the report of the Commissioner that he is more
            particular and interested in locating Survey No.988 alone just to
            confuse matters. The various documents filed by this Defendant
            relating to his title to Survey No.988 and ignored by the
            Commissioner. While locating Survey No.988, the Commissioner
            did not follow the descriptions contained in the ancient documents
G
            filed by this defendant before this Hon’ble Court. But he simply
            followed documents for bits of land brought into existence after
            the suit and registered in Kerala at the instance of the Plaintiff.
            8.  …..This Thottampara Nilam lies west of the road and
            comprised in Survey No.1025. The portion lies west of the road
H
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                          517
                 [R. BANUMATHI, J.]

      also forms part of Survey No.988. The portions shown as                A
      Thottampara Nilam and Muriyaravilakam are also portions of
      Survey No.988. The Commissioner did not locate the southern
      limit of Survey No.988……
      …..”
       12. Based on the objections filed by the second defendant,            B
Mr. Raveendran Nair, Advocate-Commissioner revisited the property
and filed his Report noticing Survey No.988 falls within the description
of the suit properties. The relevant portion of the Report of the
Commissioner dated 26.04.1999 reads as under:-
      “….While the Hon’ble Court appointing me as Commissioner, it           C
      is specifically ordered to exclude old Survey No.988. Since it
      belongs to second defendant, when this plot is excluded from
      partition the share of the plaintiff will come in file No.123/5, 6,
      535/1, 2, 535/4 and the Plot B, B1, B2 and B3.
        The old survey number of the properties are 983/12, 13, 14 and       D
      988 of Mancode Village. Out of the above survey numbers, the
      plaintiff is entitled on the basis of boundaries the plot shown
      A,B,C,D,E,F,G,H,I,J,K,L,M,N,O,P,A, is the plot having an area of
      7 Acres 40 Cents.
      ……”                                                                    E
       13. Appellant-Selvi filed detailed objections to the Commissioner’s
Report stating that Survey No.988 cannot be excluded from the properties
to be partitioned. Second defendant-Gopalakrishnan Nair also filed
detailed objections to the Commissioner’s Report on 04.11.1999, as under:-
                                                                             F
      “…..
      4. The Commissioner has wrongly shown ‘B’ Schedule Property
      inclusive of the whole by Survey Nos.988 without identifying the
      suit properties i.e. Survey Nos.983A and 990. Old Survey No.988
      correlates to R. Survey No.123/9 having an extent of 3 Acres 39
      Cents in the exclusive property of this defendant which is not         G
      available to a partition. In this aspect, the Commissioner has not
      even taken note of the various documents filed by this defendant.
      5. The Commissioner exceeded his authority in allotting the share
      of the plaintiff inclusive of the whole Survey No.988 while this
                                                                             H
518                SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A               Hon’ble Court specifically directed him to allot the share of the
                plaintiff in Survey Nos.983A and 990 or in any of the both.
                6.        Paragraphs 5 and 6 of the report of the Commissioner
                are mutually conflicting. Paragraph 6 of the report is totally in
                conflict with the plan showing the allotment. Plots B1 and B2
B               shown by the Commissioner in his plan explicitly come within
                Survey No.988. So, the allotment of the share of the plaintiff
                inclusive of Survey No.988 is totally against the spirit of the order
                of this Hon’ble Court dated 27.04.1999. Such an allotment totally
                deprives the exclusive right of this defendant over Survey No.988.
C               ….”
             14. Considering the objections repeatedly filed by the second
      defendant reiterating that Survey No.988 falls within the description of
      the suit properties and that should be excluded from the properties to be
      partitioned, the trial court ought to have held an enquiry and directed the
D     parties to adduce evidence as to the right claimed by the second
      defendant in old Survey No.988 (R.S. No.123/9) and what was the basis
      on which the possession of the second defendant was upheld in the
      proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992.
             15. Both the trial court and the First Appellate Court appear to
E     have rejected the objections raised by the second defendant mainly on
      the following grounds:-
           i.      No appeal was preferred by the second defendant against the
                    preliminary decree and therefore, second defendant cannot
                    challenge the correctness of the preliminary decree in the
F                   final decree proceedings;
           ii.      Second defendant has not raised the plea regarding his claim
                    of ownership in Survey No.988; and
           iii. Application for passing final decree is pending for more than
                sixteen years
G           16. As per Section 97 CPC, where any party aggrieved by a
      preliminary decree passed after the commencement of this Code does
      not appeal from such decree, he shall be precluded from disputing its
      correctness in any appeal which may be preferred from the final decree.
      Of course, the second defendant has not filed the appeal against the
H
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                              519
                 [R. BANUMATHI, J.]

preliminary decree challenging its correctness. But as pointed out by            A
the learned counsel for the second defendant, in the description of the
suit properties, Survey No.988 has not been shown. As pointed out by
the High Court, in para No. (13) of the written statement, second
defendant has clearly averred that he is the owner of the adjoining
property in Survey No.988 in which the plaintiffs and the other defendants
                                                                                 B
have no right and that the third defendant is residing in a building
belonging to the second defendant in the said Survey No.988 on rental
basis. In spite of the objections raised by the second defendant as to the
boundaries and description of the suit properties and also claiming right
in Survey No.988 stated to be falling within those boundaries, the
plaintiffs have not amended the description of the suit properties by            C
bringing in Survey No.988 in the suit property. It is in this context, in
their written statement, the defendants have stated that “the defendants
have no objections to surrender the mortgage right in respect of Plaint B
Schedule items…..”.
       17. Be it noted that two Commissioners namely Mr. K. Ponniah              D
and Mr. Ambrose earlier appointed have inspected the suit properties
and filed their Reports stating that the suit properties are not identifiable.
Only when Mr. Raveendran Nair, Advocate-Commissioner inspected
the suit property, he has noticed that Survey No.988 is falling within the
description of the boundaries stated in the Plaint. Since the description
of the suit property did not contain Survey No.988, the fact that the            E
second defendant did not prefer appeal against the preliminary decree,
cannot be put against the second defendant. Though the High Court
referred to the averments in the written statement as to the claim of
second defendant in Survey No.988, the High Court did not go into the
question as to the entitlement of second defendant and the confusion             F
regarding the boundaries of the properties.
       18. In view of the stand taken by the second defendant that he is
entitled to the adjoining property in Survey No.988 by virtue of the sale
deed of the year 1951 and the consistent objections raised by him to the
Commissioner’s Report, in our view, in the final decree proceedings, the         G
trial court ought to have directed the parties to adduce evidence to
enable the court to ascertain the truth as to the correct description of the
suit property and also the right claimed by the second defendant in
Survey No.988. We are conscious that the parties are fighting litigation
for more than five decades; but in order to meet the ends of justice, in
                                                                                 H
520             SUPREME COURT REPORTS                              [2018] 6 S.C.R.


A     our view, the impugned judgment of the High Court and the courts
      below are liable to be set aside and the matter be remitted to the trial
      court for deciding the matter afresh.
              19. Before we close the matter, we feel it necessary to set at rest
      two issues. As pointed out earlier, Kalyani executed an agreement for
B     sale on 27.12.1968 in favour of second plaintiff-Vasudevan Pillai. Second
      plaintiff assigned the aforesaid agreement on 05.08.1978 in favour of
      one Rajayyan and the said Rajayyan assigned the agreement in favour
      of third plaintiff-Selvi on 10.03.1983. As pointed out earlier, all the three
      plaintiffs filed final decree application in I.A. No.120 of 1985. After the
      disposal of the matter by the first appellate court and when the second
C     appeal was pending before the High Court, second plaintiff Vasudevan
      Pillai filed an affidavit on 07.01.2013 before the trial court -– District
      Munsiff Court, Kuzhithurai alleging that a fraud has been played on him
      and denying the right of third plaintiff-Selvi to pursue the final decree
      application. The said Vasudevan Pillai alleged that he has never filed
D     final decree application and that his signature was forged and he has not
      assigned his right either in favour of Rajayyan or in favour of third plaintiff-
      Selvi. Though the parties have advanced lengthy arguments on the said
      averments in the affidavit filed by Vasudevan Pillai; it is to be pointed out
      that the affidavit of Vasudevan Pillai is clearly an afterthought. In the
      final decree application I.A. No.120 of 1985, all the three plaintiffs have
E     signed. In the final decree stage, the third plaintiff-Selvi got herself
      impleaded based on the assignment of right in her favour by Rajayyan
      who in turn got the assignment from the second plaintiff-Vasudevan
      Pillai. The third plaintiff-Selvi was pursuing the final decree application.
      Though the final decree application was pending before the trial court
F     for more than sixteen years and thereafter in the First Appellate Court,
      Vasudevan Pillai has not raised any objection nor made any grievance
      against the third plaintiff-Selvi. Only when the second appeal was pending
      before the High Court, the second plaintiff-Vasudevan Pillai has chosen
      to file an affidavit before the court denying assignment of the right and
      raising plea of forgery. In our view, the stand of Vasudevan Pillai is
G     clearly an afterthought and no weight could be attached to the averments
      in the affidavit. We make it clear that after the matter is remitted to the
      trial court based on his affidavit, Vasudevan Pillai is not entitled to put
      forth any claim. We also make it clear that the locus of third plaintiff-
      Selvi to pursue the matter also shall not be called for question nor be
H     challenged.
SELVI v. GOPALAKRISHNAN NAIR (D) THR. LRS. AND ORS.                             521
                 [R. BANUMATHI, J.]

       20. For the foregoing reasons, the impugned judgment of the High         A
Court and the courts below are set aside and the appeal is allowed. The
matter is remitted to the trial court for consideration of the application
for final decree I.A. No.120 of 1985 in OS No. 1516 of 1969 afresh with
the following directions:-
      (i) The plaintiffs and the second defendant are at liberty to             B
          adduce oral and documentary evidence to substantiate their
          objections filed to the Commissioner’s Report;
      (ii) The trial court to decide upon the correct survey numbers
           falling within the description of the suit properties and whether
           the said suit property within the stated boundaries tally with       C
           the properties mortgaged;
      (iii) Tallying of boundaries of the properties with reference to
            documents, if necessary, by reference to revenue records.
      (iv) Entitlement of the second defendant-Gopalakrishnan Nair as
           to Survey No.988 with reference to his documents and also            D
           the proceedings before the Executive Magistrate and fur-
           ther revision thereon; and
      Since parties are litigating the matter for more than five decades,
we direct the trial court to expedite the hearing in the final decree
proceedings and dispose the same in accordance with law. No cost.               E


Divya Pandey                                                  Appeal allowed.



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