S.S. Subramani, J.
1. Second plaintiff, who was impleaded as legal heir of original plaintiff in O.S. No. 106 of 1969 on the file of the Subordinate Judge, Nagercoil is the appellant in this appeal.
2. The following reliefs are asked in the plaint:
(a) The title and possession of the plaintiff over the suit property to be declared and a consequential injunction restraining the defendants from entering in the suit property, from cutting down and removing the trees and from committing any other kinds of waste over the suit property be passed;
(b) The plaintiff be given a decree for recovery of Rs. 3,000 towards damages from the defendants and their assets;
(c) The plaintiff be given her costs of the suit from the defendants;
(d) Such other reliefs which this Court deems just and proper for the ends of justice may also be granted.
The relevant facts which are necessary for the proper disposal of the appeal may be summarised as follows.
3. It is averred in the plaint that the whole area comprised in lekkam 28 originally belonged to one Kendran Kanikkaran. It is further alleged that as per Exhibit A-22 dated 12.12.1049 ME one-fourth portion was sold by the legal heir or Kendran Kanikkaran, in favour of Nallaperumal Muthuswami. Out of that one-fourth, one-fifth share of the north-eastern portion was purchased by one Subramanian Sivan and Nagendran Ananchaperumal as evidenced by Exhibit A-23 dated 15.2.1050 M.E. Later, a partition was entered between Subramanian Sivan and others on 29.2.1053 M.E. evidenced by Exhibit A-3. As per the said deed the property was divided into ten equal shares. 5 1/2 shares were taken by Sivan and one Ananthalakshmi Pillai. The remaining 4 1/2 shares were taken by Nagendran Valayuthaperumal and his brother Nagendran Ananchaperumal. The 4 1/2 shares taken by the two brothers are situate on the eastern western sides of the 5 1/2 shares taken by Sivanand Ananthalakshmi Pillai. While the share's were in possession, on 19.5.1056 M.E., as evidenced by Exhibit A-2, Velayutha Perumal and Ananchaperumal sold the eastern portion, which they obtained under Exhibit A-3, to Mrs. Aney Amey Cox. It is stated that the property conveyed under Exhibit A-2 has well defined boundaries and all the properties lying within the boundaries were in possession of the purchaser under Exhibit A-2. The right of Mrs. Aney Amey Cox devolved in favour of her grand son C.H. Simpson of Black Rock Estate, and he was in possession. It is further stated that within the boundaries covered by Exhibit A-2, the extent will be about 100 acres and the same was agreed to be sold by Simpson in favour of appellant's father late Issiah. It is stated that there was an agreement for sale (orally) in the year 1958. Before the sale could be completed, Issiah died some time in the year 1964, and therefore, the sale deed was taken by appellant's mother, the original plaintiff in the suit on 10.3.1969. for a consideration of Rs. 10,000. It is stated that ever since the date of agree-(sic) appellant's mother were in possession of that property. The sale deed dated 10.3.1969 is marked in the suit as Exhibit A-1.
4. It is further alleged in the plaint that the defendants have no right over any portion of the property.
5. It is further averred in the plaint that the defendants in the suit filed O.S. No. 51 of 1963 of the file of the same court for declaration of title and possession over portions of the property comprised in lekkom 28. The claim was made as if the property belonged to their family. The plaintiff further says that the property did not belong to the defendants' family and they have no right over any portion of the suit property as described in the sale deed. It is further stated that the Defendants 1 to 6 are to be restrained from putting forward any claim over any portion of the property in this case. The plaintiff has also taken a contention that the right if any of the defendants 1 to 6 over any portion of the plaint schedule property is barred by limitation and adverse possession, it is further alleged that in the months of April-May, 1969, the defendants caused damage to the plaintiff to the extent of Rs. 2,000 by cutting and removing of tapioca planted by the plaintiff in the plaint schedule property. Even though the plaintiff preferred complaints with the local police, it was not successful and the act of the defendants causing interference in the enjoyment of the plaintiff over the plaint schedule property continued. The suit was, therefore, filed for the above mentioned reliefs.
6. Before further proceeding with the narration of facts, it is worthwhile to note that originally in the plaint, these were only six defendants and the other defendants were impleaded subsequently. Defendants 7 to 12 were impleaded on 29.8.1974 as legal heirs of the deceased fourth defendant. The sixth defendant was also recorded as one of the legal heirs of the fourth defendant. The first defendant died on 26.8.1984 and none was impleaded. Second defendant died and his legal heirs have been impleaded as defendants 14 to 19. Defendants 20 to 23 were added as legal heirs of the deceased fifth defendant. Regarding the 13th defendant, that is the State of Tamil Nadu, it was impleaded as per order in I.A.No.135 of 1981, dated 15.7.1981. The circumstances under which the 13th defendant was impleaded require little more elaboration of facts. In the earlier portion, I have already stated that a suit was filed by defendants 1 to 6 as O.S. No. 51, of 1963. In that suit, there are two defendants namely, 1) State of Tamil Nadu and (2) (sic) reference is made earlier. That suit was to declare that the property scheduled therein belonged to the plaintiffs therein absolutely and to cancel certain orders passed by the District Collector Kanyakumari and also the grant of patta in their favour. That suit was originally decreed against which two appeals were preferred one by the State of Tamilnadu and the other by Simpson. The appeal A.S. No. 661 of 1966 preferred by Simpson was dismissed and the Appeal A.S.No.275 of 1967 filed by the State alone came for final arguments. A.S.No.275 of 1967 was allowed and the decree passed in O.S.No.51 of 1963 was set aside and remanded back to the trial Court for fresh consideration. At that stage, the present appellant was also impleaded as third defendant in the suit, who took a contention that the property claimed by the plaintiff therein includes the property covered under Exhibit A-2. He also put forward a contention that the plaintiffs therein are not entitled to any property as alleged by them. By the time he was impleaded, the present suit O.S.No.106 of 1969 was already filed making the defendants 1 to 6 alone as parties to that suit.
7. After the remand of O.S. No. 51 of 1963, the same was tacked with O.S. No. 106 of 1969 and a common judgment was pronounced on 14.11.1974. In that judgment it was found that under Exhibit A-1 Sale Deed, neither the appellant herein nor his predecessor were in possession of the property and the sale itself is executed under suspicious circumstances. It is further found that the plaint schedule property is not the family property of Subramanian Sivan and the plaints schedule property in O.S. No. 106 of 1969 also forms part of the schedule of Property in O.S.No.51 of 1963. It is further found that even though various documents are filed and the Commissioner's report is also obtained to identify the property, the identification was not properly done. Exhibits C-1 to C-7 filed by the various Commissioners in the year 1965 and 1970 are of no use to locate the property, therefore, both the suits were dismissed.
8. Against the common judgment, two appeals were preferred before this Court in A.S. Nos. 64 and 192 of 1975. A.S.No.64of 1975 was against that decree and judgment made in O.S. No. 51 of 1963. A.S. No. 192 of 1975 was filed by the appellant against the dismissal of his suit. By the common judgment dated 8.2.1980, a Division Bench of this Court dismissed A.S. No. 64 of 1975 and confirmed the decree and judgment in O.S. No. 51 of 1963. A.S. No. 192 of 1975 was allowed and remanded for fresh consideration. While remanding the appeal, the Division Bench held that the State Government is a necessary party and the finding of the trial court that the presence of the State Government is necessary in the suit was confirmed. It is pursuant to the order of remand in A.S. No. 192 of 1975, the 13th defendant was additionally impleaded.
9. Even though 13th defendant was additionally impleaded, no additional relief was sought against the 13th defendant and the only averment as against the State is the allegation made in paragraph 14A. In that paragraph of the plaint, it is stated that,
14 A. The State of Tamil Nadu has no manner of title or possession over the suit property. The suit property is a registered land comprised in lekkom 28 over which the State of Tamil Nadu has no right. The plaintiff is entitled to get patta in respect of the suit property from the Government.
10. After the 13th defendant was impleaded, it filed written statement and also an additional written statement. According to the case pleaded by the 13th defendant, the suit property is hot comprised in lekkom 28. It is their case that the plaint property is a poramboke land under the control of Tamil Nadu Forest Department. It is further averred that Exhibit A1, A2 and A23 are invalid transactions. It is further stated that neither the purchaser under Exhibit A2 nor her grandson Simpson was in possession of the property covered by the sale deed. It is further stated that the plaint property is also not a portion of Survey Nos. 2917 and 2898 of Azhagiapandapuram village. Whatever right Simpson had in Survey No. 2917 is already given to him in the earlier adjudication between him and the State. It is further contended that Simpson himself has filed various claim petitions before the Forest Officials, which were rejected. Writ petitions were also filed before this Court without success. Under those circumstances it was contended that the present claim of the plaintiff is barred by res judicata. It is further stated that neither the plaintiff nor the other defendants have any right over any portion of the schedule property. It is further stated that decision in O.S. No. 51 of 1963 has no relevance so far as the rights of the State is concerned. The possession of the plaintiff was also disputed. The 13th defendant prayed for dismissal of the suit.
11. After the written statement was filed in 22.6.1982, a commissioner was deputed to identify the property. Exhibit C8 and C9 are the report and plan filed by the Advocate Commissioner S. Pariavan. After the report was filed, the plaint was amended. In the original plaint, the area was mentioned as 117 acres, 17 cents in Survey No. 2917 and 16 acres 27 cents in Survey No. 2694. After the report was filed, the extent was changed as 160 acres and 44 cents alone within the same boundaries. After the plaint is amended, an additional written statement was filed. It was contended therein that the report of the commissioner is invalid and he has not measured the property. It is further stated that the area located by the commissioner is not that is mentioned in the document. It is further alleged that even boundaries have not been located and the identification is regarding the property which is a reserve forest. It is further alleged that no scientific approach was made by the commissioner for locating the property. They reiterated the earlier contention in the written statement and prayed for dismissal of the suit.
12. So far as the other defendants are concerned, they pray for dismissal of the suit. They claim right over the property as if it belonged to them absolutely. A further contention was taken that the allotment in Exhibit A3 was not acted upon and as per subsequent arrangement. Subramanian Sivan obtained Western portion and all the remaining portion was taken by the two brothers Velayutha Perumal and Anancha Perumal.
13. On the above pleadings, the trial court reconsidered the evidence and came to the conclusion that the plaintiff is not entitled to any relief. The suit was dismissed, with costs. The lower court held that Exhibits C8 and C9 are of no use to locate the property and no serious attempt was made by the plaintiff to have the same located as directed by the order of remand in A.S. No. 192 of 1975. It further came to the conclusion that the sale deed in favour of the plaintiff, marked as Exhibit A.1, was also executed by Simpson under suspicious circumstances. The alleged oral agreement for sale referred to in Exhibit A-1 was also found to be not true. The trial court held that the possession did not pass on the basis of oral agreement. The trial Court further came to the conclusion that Exhibit C to C7 are also of no use and the same were not taken into consideration by the appellate court. Direction by this Court to have the property relocated was taken as an implied rejection of Exhibit C1 to C7. Even on merits, the lower court found that Exhibit C1 to C7 will not help the plaintiff in locating the plaint schedule property. The oral evidence adduced by the plaintiff was also discarded by the lower court.
14. It is that judgment that is challenged in this appeal.
15. In the memorandum of appeal over more than 150 grounds are taken challenging the findings of the trial court. But, according to me, the main point that requires consideration for the purpose of appeal is whether the plaintiff/appellant is successful in locating the plaint schedule property and if only that is found in favour of plaintiff, question of declaring the title in his favour will arise. When the property has not been located, the other questions are pushed to the background or becomes irrelevant.
16. The main point that requires consideration in this appeal is whether the appellant has succeeded in his attempt to have the property located and whether the declaration of title and possession sought for in the suit could be granted.
17. While narrating the facts, I already said that after remand, the main contesting respondent is the State of Tamil Nadu. They were impleaded only after the remand. Even though the trial court held the State of Tamil Nadu as a necessary party, the plaintiff did not want the state to be impleaded. That finding of the trial court was confirmed in A.S. No. 192 of 1975 also. While remanding, in A.S. No. 192 of 1975, a direction was given by this Court to implead the state also as a necessary party to the suit and thereafter to enter a finding on issues 1 to 6. The decretal portion of the order of remand reads thus:
Thus the remit order is confined to only O.S.No.106 of 1969. The said suit will be disposed of after locating the property allotted to Nagendran Ananchaperumal and others under Exhibit A3 and by the plaintiffs' predecessors-in-title under Exhibits A2 and A4 (in O.S. No. 106 of 1969). It must give its findings on issues 1 to 6 after impleading the State of Tamil Nadu as a party.
A.S. No. 192 of 1975 is accordingly allowed and remitted for fresh disposal as indicated above. Costs will abide by the result of the suit.
18. After impleading the state as 13th defendant, P W2 was further cross-examined and thereafter Exhibits A22 and A23 were marked. The only other evidence that was let in on the side of the plaintiff was C8 and C9. No other evidence was let in, even though opportunity was given to him. Why I am giving importance to the said fact is that reliance is placed by the counsel for the appellant on the earlier commissioner's report and plan and also the oral evidence let in by him. As against the evidence of re calling PW 2 and marking of Exhibits C8 and C9 on the side of the plaintiff, DW 2 was examined who is the District Forest Officer. DW 1, who is the 6th defendant, was also recalled and be also gave evidence against the plaintiff.
19. PW 1 is the vendor under Exhibit Al. His evidence was also given much importance by the counsel for the appellant. According to me, the oral evidence that was let in before remand is of no use as against the State is concerned and it cannot be relied on for any purpose. I will come to the validity of the commissioner's reports Exhibits C1 to C7 later. Evidence of PW 1, PW 3, PW 4 and PW 5 were all taken before remand in the same proceeding. If the plaintiff wants to rely on the oral evidence of his witness, he has to satisfy the ingredients of Section 33 of the Evidence Act. Section 22 of the Evidence Act reads thus:
Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is deed or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable: Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding and the right and opportunity to cross-examine that the question in issue were substantially the same in the first as in the second proceedings.
In the decision Phani Bhusan v. Sibakali Basu : AIR1952Cal218 , it was held thus:
Unless examination of a witness is complete, that is to say, unless he has been cross-examined and re-examined or unless his cross examination or re-examination has been declined, his evidence cannot be considered except in the circumstances mentioned in Section 33 of the Evidence Act. Hence the evidence of a prosecution witness who has been examined in chief but who is not tendered for cross-examination is not admissible when the conditions mentioned in Section 33 are not satisfied, even though it is favourable to the defence.
The witnesses are examined though in the same proceeding it was before the state was impleaded. The dispute at that time was whether the schedule property is a family property of the defendants or whether Subramanian Sivan had acquired the property as his own and whether on the basis of partition, Ananchaperumal and Velayuthaperumal had any right over the property. At that time, even though there was a dispute as to whether it is a forest land or not, the fight was as to who is entitled to that land. What is the nature of property and whether that is a part of reserve forest or a forest land were not matters in issue. The evidence that was let in before the 13th defendant impleaded is therefore to be considered in that aspect alone. The evidence never speaks about the nature of land. They only confirm the fact of the possession either with the plaintiff or the defendant. Under Section 33 of the Evidence Act, a prior statement or evidence given by witnesses can be taken as relevant piece of evidence in a later stage of judicial proceeding provided that (1) the proceeding was between the same parties or their representatives in interest; (ii) the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) the questions in issue were substantially the same in the first as in the second proceeding. The plaintiff has to prove that the witnesses who were already examined could not be produced at the later stage examined could not be produced at the later stage of that proceding for want of reasons referred to in the section i.e., (i) witness is dead (ii) they could not be found (iii) they are incapable of giving evidence (iv) their presence could not be obtained without an amount of delay or expense. So unless these ingredients are proved, the evidence given by those witnesses cannot be made use of against the State for any purpose. Though P.W. 2 was examined after remand, he has not stated anything as to why the other witnesses could not enter the box and give evidence. The most important witness is P.W. 1, the vendor of the plaint schedule property. Why he has been kept away after remand, is not explained by P.W. 2.
20. I have already said that though evidence was taken in the same proceeding earlier the dispute at that time was between the plaintiff and the defendants 1 to 6. The State is not a representative of either of these parties. It is claiming a sovereign right to hold the property and it is not claiming under any of them. The first stage of the proceeding before remand was, therefore, not a proceeding between the same parties. Secondly, the State is not given an opportunity to cross-examine the witnesses who gave evidence at that stage. They were not tendered after remand. In the book Sarkar on Evidence 14th Edition 1993, at page 656, the learned Author has said thus
The opportunity of cross-examination involves two elements; (1) notice to the opponent that the deposition is to be taken at the time and place specified, and (2) a sufficient interval of time to prepare for examination and to reach the place.
I have also said that issue before remand was entirely different. If the question in issue is substantially different, though in the same proceeding, the evidence given by the witnesses earlier will be of no use. Section 33 of the Evidence Act will not apply. There is no other rule or law which makes the earlier evidence given by the witnesses as relevant. They will have to be ignored totally. If so, we have only the oral evidence of P.W. 2. That will not prove the title or possession for he is interested witness. As against the evidence of P.W. 2, D.W. 2 has spoken about the case of the State. Again, when the identification of the property is the matter in issue, oral evidence is of not of much use. In the judgment in Appeal Nos. 64 and 192 of 1975, this Court gave important to the findings in A.S. No. 275 of 1967. This Court while disposing of the appeals have extracted the relevant portion from the judgment in A.S. No. 275 of 1967. It reads as follows:
Before this Court the State appears to have taken up the stand that the property comprised in O.S. No. 51 of 1963 did not form part of Survey No. 1917 even though it might be within lakkom No. 28 and that the entire Survey No. 2917 is a forest poramboke, perhaps in view of the said stand taken by the State it has been observed in the judgment.
One common ground we find is that the suit property is in lekkom 28. But its location presents an intricate problem, if it (sic) has to be solved only on the materials on record. Though there are a number of sketches drawn up either on commission or otherwise, they are eventually of no decisive assistance. In none of these has any effort been taken to locate the suit property in lekkom 28 with reference to settled land marks in boundaries of not only that lekkum but also the portion conveyed out of which the plaintiffs' predecessors had purchased a part, and with reference to the terms of the petition under Exhibit A-3. One thing emerge clearly from the debate at the Bar and that is in the light of Exhibit A-3. What has been allotted to the share of the predessors-in-title of the plaintiffs is in a middle portion flanked by the 4-1/2 shares on its east and west. The eastern boundary of the suit property as given in the plaint schedule is Tharuvayar having its source in the injikkadakaviyal. This boundary is not consistent with the scheme of allotment to the plaintiffs' predecessors in-title in Exhibit A-3. This aspect seems to have been completely overlooked by the court below. Equally it seems to have escaped its attention that the plaintiffs' own case as we have already indicated is that Nagendran Velayuthaperumal and Nagendran Ananchaperumal possessed S. Nos. 2693 and 2697 for which they have obtained pattas and so too Sivakami Ananthalakshmi Pillai also obtained patta for 48 acres 49 cents in S. No. 2696. These survey numbers having reference to the sketches are found located both to the west of the suit property as described in the plaint schedule, while the suit property should be in the middle of the other 4-1/2 shares. It follows therefore that the finding of the court below on issue No. 2 cannot be accepted. As regards its finding on issue 5, this too will have to be discharged as the nature of the plaintiffs 'property to be ultimately identified will depend on its location in S. No. 2917.
(Italics supplied)
It is thereafter, this Court found that the finding of the trial Court that the State is a necessary party is a correct finding and the State has to be impleaded. It is found that with regard to the subject matter in O.S. No. 51 of 1963 and in the present suit, at least some portion of the property was the same and that part of the finding of the trial court also confirmed. After holding that portion of the property are the same in both the suits, this Court held thus,
Whether the properties comprised in both the suits are forest poromboke or whether they are private holdings will have to depend on their location on ground. Without such location of the properties claimed by the plaintiffs in both the suits, the court below has given a finding that they are situate in Azambu reserve forest. The properties claimed in both, the suits admittedly situate in hilly areas and are parts of Survey No. 2917 which comprises of more than 100 acres. The properties comprised in both the suits having been admittedly purchased under Exhibits A-1 and A-2 allotted under Exhibit A-3 partition deed, they can be located with reference to the boundaries contained therein. It has been pointed out by this Court at the earlier stage that the boundaries given, by the plaintiffs in O.S. No. 51 of 1963 are inconsistent with the scheme of division under Exhibit A-3. Now that the claim put forward by the plaintiffs in that suit as defendants in the second suit that the scheme of division in Exhibit A-3 was not adhered to and a different schemes of division was adopted having been rejected they have to be located within the entire Survey No. 2917. Since the main direction given by this Court is to locate the properties allotted to Subramania Sivan the alleged predecessors-in-title of the plaintiffs in O.S. No. 51 of 1963 and Nagendran Ananchiperumal and others, the alleged predecessors-in-title of the plaintiffs in the second suit with reference to the boundaries contained in Exhibits A-1, A-2 and A-3 and with reference to the revenue records, revenue maps and village records, the matter has to be remitted to the Court below for fresh consideration and disposal.
21. After holding that the property will have to be located on the basis of Exhibits A-1, A-2 and A-3 with reference to revenue records, revenue maps and village records, this Court found that the defendants (i.e., defendants 1 to 6) have no title over the property. The question whether the plaintiff therein has any title was directed to be re-considered after locating the property and after entering a finding on the Issues 1 to 6. It is here, we have to consider whether the plaintiff has succeeded in his attempt in locating the property.
22. In Ex. A-1 sale deed, nowhere the vendee says that she obtained possession either on the date of deed or on the date of alleged agreement of the year 1958. Along with the absence of that statement, Ex. A-1 further says that,
The vendee can take all necessary action at her liability for the enjoyment of the property and for protecting her title. The vendor will not be held responsible for any action or loss.
At this point of time, litigation, was pending between the State and the vendor is admitted. That was also in respect of portions of lekkom 28. Except for handing over of sale deed Ex. A-2, there was no other act on the part of the vendor to deliver possession of property while executing the deed. The description of the properties is also very confusing. I feel it is better to extract the entire description of the property as in the plaint.
Schedule of property
District Kanyakumari
Sub-District Bhoothapandy
Taluk Thovalai
Village Azhakiapandipuram
Property : Property which lies in the middle portion of Lekkom 28 having an area of approximately 100 acres lying the North-east portion of the 1.4 of lekkom 28 (1/4 consists of the west part of the northern and the whole of western side) in S. No. 2917.
Even if there is more than 100 acres of land in the extent of property on measurement and on the final location of Mulagumadan pottai which is the northern boundary of the property (with reference to the judgment of the High Court of Judicature in Appeal No. 81 of 1961 relating to S. Kumaraswamy (died) and others versus State of Madras) the vendee shall have the right of title, possession and enjoyment of all the entire Extent within the four boundaries mentioned hereunder Boundaries
North Mulagumadan pottai
East S. No. 2917/3
South S. No. 2696
West S. No. 2695/3
The property lies in the Panchayat area of Azhakiapandiapuram,.
The market value of the property is Rs. 20,000/-.
Sd/C.H. Simpson Witnesses:
1. V. Manickavachagam S/o VelayudhanNambiar
2. Annamalai Pillai S/o Subramania Pillai
(Italics supplied)
23. Even P.W. 2 stated that as per documents only 100 acres have been conveyed. But, while giving description of the property, the vendor has stated that everything depends on final location of Mulagumadan Pottai, the northern boundary of the property and that must be with reference to the judgment of the High Court in A.S. No. 81 of 1961. As per Exhibit A-23, Muthuswamy purchased 1/4 share of the entire lekkom 28. Out of that 1/4, 1/5 share of the northeastern is alleged to have been sold under Exhibit A-22 to Subramanian Sivan and others. The remaining 4/5 share which belonged to Muthuswamy as per Exhibit A-23 was alleged to have been obtained by Kumaraswamy who filed a suit as O.S.No.30 of 1958 on the file of the Sub Court, Nagercoil. That suit is also against the State of Madras for declaration of right over the property and consequent reliefs. It was that suit that is referred to while describing the property in Exhibit A-1. No attempt was made to fix the northern boundary as stated in Exhibit A-1 and what has happened to the suit between Kumaraswamy and state is also not disclosed. Judgment in A.S. No. 81 of 1961 dated 18.8.66 is marked as Exhibit A-18 in the case. While disposing of the appeal, this Court directed the lower court to enter a finding on certain issues and submit its findings. What has happened, thereafter, none of the parties (except D-3) was in a position to explain before court. The learned Counsel for the State submitted that the suit filed by Kumaraswamy against the State was dismissed and the Supreme Court has also confirmed the dismissal. If that be so, the fixation of northern boundary of the property claimed in the suit has now become impossible. The plaintiff claims the property from the northeastern extermity of a larger area. So naturally, the fixation of northern boundary of the entire property is important. In the antecedent documents of Exhibit A-l, there is no identification by Survey Numbers. Except for giving certain land-marks and also lekkom No. 28, no proper identification marks are given, and no identity could be made on the basis of description. It has come out in evidence that lekkom 28 is having properties spread over 18 miles together. According to the evidence of P.W. 2, it is around 10,000 acres. It is out of this large area, Ex. A-1 property will have to be located.
24. At the time when the suit was remanded in A.S. No. 192 of 1975, Exs. C-1 to C-7 were already filed. In spite of those reports available on record, this Court was not satisfied about the identification made by the Commissioner. In fact, not even a words is mentioned about the Commissioner's Report and plan prepared in this case. This Court also directed to have a proper identification of the property. It is not a case that this Court was not aware of Exx. C-1 to C-7 at that time. Even in the plaint, while describing the property, it is stated that the property is situate both in Survey Nos. 2917/1 and 2694 of Azhagiapandiapuram village. That description was given on the basis of the Commissioner's Report dated 20.11.70. The reference is Exs. C-1 to C-7. But in the order of remand, this Court held that,
The properties claimed in both the suits admittedly situate in hilly areas and are parts of Survey No. 2917 which comprises of more than 100 acres.
This statement in the order of remand is not questioned by anyone. If that be so, without locating Survey No. 2917, the schedule property could not be identified.
25. I have already made reference to Ex. A-18 judgment. That was in respect of 4/5 share belonged to Muthuswamy who obtained the same under Ex. A-23. Ex. A-23 was marked as Ex. A-37 in the Ex. A-18 suit, and Ex. A-22 was marked as Ex. A-36 in the case. While considering the same, the case put forward by the plaintiff therein was that within the four boundaries, Survey Nos. 2690, 2692, 2694 and 2696 alone are included. The plaintiff in that case never claimed any portion of Survey No. 2917 as part of the property coming within the same boundaries.
26. Learned Counsel for appellant placed strong reliance on the Commissioner's Report and plan filed before remand. The same was prepared by two advocates. B. Subramani and R. Rethnaswamy. Rethnaswamy has been examined as P.W. 5 in this case. While dismissing the suit, earlier, the lower court has commented on the commissioner's report. I have stated that the 13th defendant was impleaded long after the said report and the same was in pursuant to the order of remand. Under the above circumstances, no reliance could be placed on the report and plan prepared by those advocates. Order 26, Rule 10 of the Code of Civil Procedure says that,
The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the court or, with the permission of the court, any of the parties to the suit may examine the Commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
The report filed by P.W. 5 along with another advocate was without notice to the State and at that time, State was not a party and, therefore, notice could not be served on it. The report is filed on the basis of some representation made by the plaintiff and the defendants in the suit. At that time, the parties were not in dispute as to whether the property is a forest land or a registered holding. On going by Order 26, Rules 9, 10 and 18 of the Code of Civil Procedure, the report of the commissioner can be treated as evidence only if the statutory conditions are complied with. i.e., The report should be prepared at least with notice to the affected persons. If the State is given notice, that piece of evidence can be made use of against it. At least attempt should have been made by the plaintiff to examine the Commissioner after the State was impleaded. In the decision Sarat Chandra v. Sarala Bala Ghosh : AIR1928Cal63 , the question that arose for consideration was what is the importance of a Commissioner's report and plan prepared in another case. In that case, the learned Judge stated that the report and plan prepared in a case can be relied on in another proceeding if it is proved by examining the commissioner. It was held thus,
Although a report and map prepared by the Commissioner can be taken into evidence only in the suit in which he made the inquiry, yet they can be admitted in evidence Act on being proved by the person who made them.
Even though this is not a separate suit, the same principle applies for the plaintiff wants to reply on a report which has been prepared without notice to the affected person and who was impleaded subsequently. In the decision Ramakka v. Nagesam : AIR1925Mad145 it is held thus:
The contention that the commissioner was not justified in obtaining information in the absence of the parties must be upheld. The court is not entitled to act on information received in the absence of the parties, nor can it base its judgment on its own knowledge of the facts. The law on this subject is well settled. Lord Langdale, M.R., observes in Harvey v. Shelton (1844) 7 Beav. 455 : 13 L.J. Ch. 466
In every case in which matters are litigated, you must attend to the representation made on both sides, and you must not, in the administration of justice, in whatever forum, whether in the regularly constituted courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decision of the Judge, which means are not known to the other side.
To say that the Commissioner could have come to the same conclusion on the other materials
before him is no answer. If the case is brought within the general principle that the judge's mind may, by a possibility, have been biased, there is a sufficient objection, See Dobson v. Groves (1844) 6 Q.B.D. 637 : 14 L.J.Q.B. 17 : 9 Jur. and Walker v. Frobisher (1801) 6 V. J. 70 : 31 E.R. 943.
Order 26, Rule 18 contemplates the presence of the parties before the Commissioner. Naturally, the court or the commissioner will have to inform the parties asking them to appear before the commissioner, and only after the said information, if they are not present, the commissioner can proceed in their absence. Only in such cases, the report is considered as evidence in the case. The language of the statute is imperative. It is reiterating the fundamental principles of natural justice. Evidence taken behind the back of any persons is not to be considered for any purpose. If that is the principle enunciated under Order 26, Rules 10 and 18 of the Code of Civil Procedure the report filed by the two advocate Commissioners is of no use and cannot be relied on by the counsel.
27. In the decision M. Shivarama v. Mahabala Bhatt A.I.R. 1970 Mys. 45 the question that arose was, when the commissioner gave notice to only two defendants out of three, what is the evidentiary value of that report. In paragraph 15 of that judgment, the learned judge stated that,
Even in the case of the third defendant who has not been served with notice and who was not present at the time of the execution of commission, the legal consequence would be not a total invalidation of the report but non-availability of the same as evidence under Rule 10(2) of Order 26. In other words, the Report by itself, without anything more, cannot become or be available as evidence in the suit as against the third defendant.
(Italics supplied)
28. Report filed by Advocate Periavan is another piece of evidence relied on. It was prepared after that State was impleaded; I have already extracted the portion of the remand order directing that the location of the property must be made on the basis of Exs. A-1, A-2 and A-3, i.e., revenue records, revenue maps and village records. From the report, it is seen that the Commissioner Periavan has not taken into consideration the directions in the remand order. He has relied on the report of the Commissioner already prepared and it is further clear that it is more or less based on the subjective decision of the Commissioner who has prepared the report. No basis is given as to how he identified the property. He says that be was in a position to view the entire property, the property having 18 miles at a stretch, and he saw the same from a hill top. This is what the Commissioner has stated in his report. He has also filed a plan where the diagonal measurements are not given. On the basis of the plan, the area could not be calculated and even the counsel for the appellant was not in a position to calculate the area. He pleaded only his inability. It is on the basis of that plan, the Commissioner has stated that the area will be more than 160 acres. What is the basis of arriving such a finding when there is absolutely no evidence to support the inference? He is also not examined in Court. In his report, the Commissioner stated that:
Already the previous commissioners have located the suit property with reference to the above stated documents and their plan is available in this case. With the help of that plan and other records and maps available in this case (As per the High Court's direction) and with the help of the plaintiff and his men, I have located the suit property.
It is clear from the statement that he has not considered the revenue records or the village maps on the ground that earlier report is based on the same. This Court has discarded these reports and reliance placed on the same and filing a report is of no use. The procedure adopted by the Commissioner is patently illegal. Learned Counsel for the appellant submitted that the Commissioner has identified the boundaries. From the Report, I can only say that he has copied the same from the documents and not on the basis of Court's direction. If the report filed by Periavan cannot be relied on for the purpose of locating the property, the suit filed by plaintiff to get a declaration of title to a property which is yet to be identified cannot be granted. I also find that there is a difference in the description of boundaries in Ex. A-1 and the antecedent documents. How the vendor of the property (P.W. 1) gave a description with definite boundaries in Survey Numbers in Ex. A-1 is also not explained by the plaintiff.
29. The Lower Court has also taken into consideration various circumstances to hold that Ex.A-1 is not a valid document. During the relevant time, litigation was pending between P.W. 1 and the State. Under normal circumstances, if a sale is executed, there will be handing over of property to the purchaser and it is usual to have an indemnity clause by the vendor. The same is absent in Ex. A-1. It only says that the purchaser himself has to take steps to protect her title and enjoyment to the property without any responsibility on the vendor. It is clear that the original plaintiff has only purchased a litigation and not a property. It has not been identified. The title is not proved.
30. Though the counsel for appellant relied on various other circumstances, I do not think the same is relevant for the purpose of this case. Counsel relied on the Notification of Gazette under Survey and Boundaries Act and wanted this Court to hold that the Notification is invalid. Accordingly to me, those questions are irrelevant when the plaintiff has failed to prove his title to the property. The question whether the property is a forest land, need not be considered since the plaintiff has failed to locate the property as directed by this Court. The argument on adverse possession also fails since the property is not located.
31. In the result, I confirm the judgment and decree of the Court below and dismiss the Appeal with costs. Consequently, C.M.P.No.6879 of 1995 is also dismissed.
32. C.M.P. 4898 of 1997 : I do not find any ground to admit additional evidence and the C.M.P. is dismissed.
33. C.M.P. No. 3447 of 1997 : Since the State is already a party in the Suit and appeal, the District Forest Officer need not be impleaded as additional respondent. Hence, the impleading application is dismissed.
34. C.M.P. No. 15515 of 1996 : In view of the decision in the Appeal, the C.M.P. is also dismissed.
35. C.M.P. No. 3149 of 1997 : The petition is to condone delay in filing the Cross-objection. On going through the affidavit and also the Certificate of the Doctor, I find that valid grounds have been made out to condone the delay. The C.M.P. is allowed. In the cross-objection, the 6th defendant wants his title the property to be declared. I do not think, in a suit filed by the appellant for declaration of his title, title of the 6th defendant can be declared. Again, the title is claimed by the State, who is a respondent in the appeal. In fact, in this appeal, the title is claimed as against the state alone. Cross-objection against corespondent is not maintainable. Further, there is already an adjudication in the suit filed by 6th respondent, dismissing his suit. Under the above circumstances nothing survives in the cross-objection. The same is dismissed, however, without any order as to costs.