Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2025 INSC 771
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
J U D G M E N T
B.R. GAVAI, CJI
1. Leave granted.
2. The present appeal challenges the judgment and final
th
order dated 9 January 2024 passed by the High Court of
1
Kerala at Ernakulam in R.F.A. No.42 of 2018 whereby the
learned Single Judge of the High Court set aside the judgment
2
of the Principal Sub Court, Ernakulam , 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:
th
3.1 On 8 February 1955, father of the appellant executed a
3
sale deed being Sale Deed No.122/1955 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.
th
3.2 Subsequently, on 13 February 1964, father of the
appellant executed a conveyance deed being Conveyance Deed
4
No.185/1964 for a consideration of Rs.100/-, transferring the
“ Jenmam Rights ” over 9 cents of land in Survey No.1250 in
5
Poomthura Village, Ernakulam 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.
3
Hereinafter referred to as, “sale deed”.
4
Hereinafter referred to as, “conveyance deed”.
5
Hereinafter referred to as, “subject land”.
2
nd
3.4 In the meantime, on 22 March 1994, the father of the
respondents executed a settlement deed being Settlement
6
Deed No.1560/1994 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
st
appellant. The Trial Court vide order dated 31 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
th
dated 5 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
th
vide order dated 10 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
th
dated 5 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
th
order dated 9 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
th
by this Court vide order dated 8 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.
4
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
7 8 9 10
Exhibits A1 , A8 , A9 and B6 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
nd
which is executed by the father of the respondents on 22
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
th
Conveyance Deed No. 185/64 dated 13 February 1964 was
executed by the father of the appellant in favour of the father
of the respondents and the survey number mentioned therein
th
was 1250. However, in the Sale Deed No.122/1955 dated 8
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.
8
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.
9
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.
10
IN THE SUPREME COURT OF INDIA
2025 INSC 771
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
J U D G M E N T
B.R. GAVAI, CJI
1. Leave granted.
2. The present appeal challenges the judgment and final
th
order dated 9 January 2024 passed by the High Court of
1
Kerala at Ernakulam in R.F.A. No.42 of 2018 whereby the
learned Single Judge of the High Court set aside the judgment
2
of the Principal Sub Court, Ernakulam , 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:
th
3.1 On 8 February 1955, father of the appellant executed a
3
sale deed being Sale Deed No.122/1955 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.
th
3.2 Subsequently, on 13 February 1964, father of the
appellant executed a conveyance deed being Conveyance Deed
4
No.185/1964 for a consideration of Rs.100/-, transferring the
“ Jenmam Rights ” over 9 cents of land in Survey No.1250 in
5
Poomthura Village, Ernakulam 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.
3
Hereinafter referred to as, “sale deed”.
4
Hereinafter referred to as, “conveyance deed”.
5
Hereinafter referred to as, “subject land”.
2
nd
3.4 In the meantime, on 22 March 1994, the father of the
respondents executed a settlement deed being Settlement
6
Deed No.1560/1994 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
st
appellant. The Trial Court vide order dated 31 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
th
dated 5 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
th
vide order dated 10 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
th
dated 5 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
th
order dated 9 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
th
by this Court vide order dated 8 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.
4
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
7 8 9 10
Exhibits A1 , A8 , A9 and B6 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
nd
which is executed by the father of the respondents on 22
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
th
Conveyance Deed No. 185/64 dated 13 February 1964 was
executed by the father of the appellant in favour of the father
of the respondents and the survey number mentioned therein
th
was 1250. However, in the Sale Deed No.122/1955 dated 8
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.
8
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.
9
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.
10