Peter Augustine vs K.V. Xavier

2025 INSC 771 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.___________ OF 2025 (Arising out of SLP(C) No. 7988 of 2024)

PETER AUGUSTINE …APPELLANT

VERSUS

K.V. XAVIER AND OTHERS …RESPONDENTS

JUDGMENT

B.R. GAVAI, CJI

1. Leave granted.

2. The present appeal challenges the judgment and final

order dated 9th January 2024 passed by the High Court of

Kerala at Ernakulam1 in R.F.A. No.42 of 2018 whereby the

learned Single Judge of the High Court set aside the judgment

of the Principal Sub Court, Ernakulam2, allowing the appeal

filed by the respondents and remanding the matter back to the

Trial Court for de-novo disposal.

Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2025.05.23 16:21:23 IST Reason: 1 Hereinafter referred to as, “High Court”. 2 Hereinafter referred to as, “Trial Court”. 1

3. The facts, in brief, giving rise to the present appeal are as

under:

3.1 On 8th February 1955, father of the appellant executed a

sale deed being Sale Deed No.122/19553 for a consideration of

Rs.500/-, conveying the “Verumpattom Rights” over 9 cents of

land in Survey No.1236 in Poomthura Village, Ernakulam,

pertaining to Kallor Mana in favour of the father of the

respondents.

3.2 Subsequently, on 13th February 1964, father of the

appellant executed a conveyance deed being Conveyance Deed

No.185/19644 for a consideration of Rs.100/-, transferring the

“Jenmam Rights” over 9 cents of land in Survey No.1250 in

Poomthura Village, Ernakulam5 in favour of the father of the

respondents.

3.3 In the year 1993, it appears that several partition and

settlement deeds were executed in respect of the subject land

in favour of the appellant thereby devolving the interest of the

subject land upon the appellant.

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Hereinafter referred to as, “sale deed”. 4 Hereinafter referred to as, “conveyance deed”. 5 Hereinafter referred to as, “subject land”. 2 3.4 In the meantime, on 22nd March 1994, the father of the

respondents executed a settlement deed being Settlement

Deed No.1560/19946 in favour of respondent No.1 over the

land obtained under Sale Deed No.122/1955 and Conveyance

Deed No.185/1964.

3.5 In order to resolve the dispute over the subject land, the

respondents herein filed a suit being O.S. No.246 of 2011

before the Trial Court seeking declaration of title, fixation of

boundary and injunction vis-à-vis the subject land against the

appellant. The Trial Court vide order dated 31st October 2017

dismissed the suit.

3.6 Aggrieved thereby, the respondents filed an appeal being

R.F.A. No.42 of 2018 before the High Court wherein vide order

dated 5th July 2021, the High Court allowed the appeal of the

respondents and remanded the matter back to the Trial Court

for reconsideration of evidence.

3.7 Discontented by the order passed by the High Court, the

appellant approached this Court by way of a special leave

petition being SLP (C) No. 13602 of 2021 wherein this Court

6 Hereinafter referred to as, “settlement deed”. 3 vide order dated 10th April 2023, granted leave and held that

the approach of the High Court in passing the remand order

was totally erroneous since it lacked necessary reasoning.

Therefore, this Court set aside the order of the High Court

dated 5th July 2021 and remitted the matter back to the High

Court directing to decide the matter afresh.

3.8 Ultimately, by way of the impugned judgment and final

order dated 9th January 2024, the High Court allowed the

appeal filed by the respondents and once again remanded the

suit back to the Trial Court for de-novo disposal. Further, the

High Court afforded an opportunity to the parties to adduce

further evidence.

4. Being aggrieved thereby, the present special leave

petition was filed by the appellant wherein notice was issued

by this Court vide order dated 8th April 2024. By the same

order, this Court directed the parties to maintain status quo.

5. We have heard Shri Dama Seshadri Naidu, learned

Senior Counsel appearing on behalf of the appellant as well as

Shri Manoj V. George, learned counsel appearing on behalf of

the respondents.

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6. Shri Naidu, learned Senior Counsel appearing on behalf

of the appellant submits that the learned Single Judge of the

High Court has grossly erred in again remitting the matter

back to the Trial Court. He submits that the borders and

boundaries described in both the sale deed and the

conveyance deed would reveal that the property is one and the

same. He further submits that the conveyance deed was

required to be executed after the sale deed to transfer the

“Jenmam Rights” vested with the father of the appellant to the

father of the respondents. He submits that in any case, the

settlement deed is very clear which would show that the

property is one and the same i.e., pertaining to survey no.1236

and not survey no.1250.

7. Per Contra, Shri George, learned counsel appearing for

the respondents, submits that since the earlier report of the

Court Commissioner was not clear, the learned Single Judge

of the High Court has rightly remitted the matter back to the

Trial Court for appointment of another Court Commissioner in

order to decide the matter on merits, after getting their reports.

8. A perusal of the impugned judgment and final order

would reveal that the learned Single Judge of the High Court

5 has remitted the matter back to the Trial Court only on the

ground that there has been no proper identification of the

subject land by the Court Commissioner. The High Court

observed that unless such an identification was made, it could

not be said that the subject land was properly identified. In

this regard, it will be relevant to refer to the following

observations of the learned Single Bench of the High Court:

“18. As noticed earlier, the boundary description on all the four sides of the property included in Exts. A1, A8, A9 and B6 are one and the same. Since there is discrepancy in the survey number, and the boundary description on all the four sides in Exts. A1, A8, A9 and B6 being one and the same, an identification based on boundaries would clinch the issue. Admittedly there has been no identification by the commissioner. Unless such identification is made, it cannot be said that the plaint schedule property has been properly identified. Point No.2 is answered as above” [emphasis supplied]

9. It can thus be seen that the learned Single Judge of the

High Court himself has observed that the boundary

description on all the four sides of the property included in

6 Exhibits A17, A88, A99 and B610 are one and the same.

However, the learned Single Judge of the High Court observed

that there was discrepancy in the survey number and

therefore identification based on boundaries would clinch the

issue.

10. In the present appeal, the only issue that will have to be

considered is as to whether the learned Single Judge of the

High Court was justified in again remitting the matter back to

the Trial Court for de-novo disposal.

11. It is clear from the record that in the sale deed, the area

of the property shown was 9 cents. The boundaries of all the

four sides of the property were also clearly recorded and the

survey number mentioned therein was 1236. As already

discussed hereinabove, after the appellant’s father acquired

“Jenmam Rights”, the conveyance deed was executed in order

to transfer the said rights in favour of the father of the

respondents. In the said conveyance deed, though the borders

and boundaries were the same and though the area mentioned

7 Original deed dated 13.02.1964.

8 Original deed dated 05.02.1955.

9 Original deed dated 05.02.1955.

10 Original deed dated 17.09.1963.

7 was also of 9 cents, survey number mentioned therein was

1250. However, this position is clarified by the settlement deed

which is executed by the father of the respondents on 22nd

March 1994 in favour of Respondent No.1. It will also be

relevant to refer to the following recital in the said settlement

deed:

“The birth right of the property which I am giving to you is as per document No.185/64 dated 13.02.1964 and the Survey number is mentioned in the document as 1250 but then as per Sale Deed No.122/55 dated 08.02.1955, as per Thandaper number 276, and Village certificate dated 25.10.1990, the property which I am giving to you is included in Survey No.1236.”

[emphasis supplied]

12. Perusal of the aforesaid would reveal that the

Conveyance Deed No. 185/64 dated 13th February 1964 was

executed by the father of the appellant in favour of the father

of the respondents and the survey number mentioned therein

was 1250. However, in the Sale Deed No.122/1955 dated 8th

February 1955, the property was included in survey number

1236. It is relevant to note that in the said Settlement Deed

also, the survey number written was 1236.

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13. In that view of the matter, we find that the appeal could

have been very well decided on the basis of the interpretation

of the three documents (being the sale deed, the conveyance

deed and the settlement deed) since the area of the property as

well as the borders and boundaries shown were the same in

all the said documents. When the matter could have been

decided on the interpretation of the said three documents,

again remitting the matter only for the appointment of another

Court Commissioner would further delay the proceedings

between the parties which have been pending for more than

14 years.

14. In any case, if the learned Single Judge of the High Court

was of the view that a Court Commissioner’s report would have

assisted in deciding the appeal, the learned Single Judge of

the High Court himself could have appointed the Court

Commissioner and called for the report. Even then, in view of

the aforesaid discussion, the same was not necessary.

15. We are thus of the considered view that the learned

Single Judge of the High Court has erred in remitting the

matter on the second occasion and as a consequence, the

present appeal deserves to be allowed.

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16. In the result, we pass the following order:

i. The present appeal is allowed; and

ii. The learned Single Judge of the High Court is

requested to decide the appeal on its own merits in

accordance with law and in the light of the aforesaid

observations as expeditiously as possible and in any

case, within a period of 6 months from the date of this

judgment.

17. Pending application(s), if any, shall stand disposed of. No

costs.

..............................CJI (B.R. GAVAI)

.............................................J (AUGUSTINE GEORGE MASIH)

NEW DELHI;

MAY 23, 2025.

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