PETER AUGUSTINEversusK.V. XAVIER AND OTHERS

                 [2025] 5 S.C.R. 1007 : 2025 INSC 771

                             Peter Augustine
                                     v.
                          K.V. Xavier and Others
                       (Civil Appeal No. 7160 of 2024)
                                  23 May 2025
           [B.R. Gavai, CJI* and Augustine George Masih, J.]


                            Issue for Consideration
       Issue arose whether High Court was justified in remitting the matter
       back to the trial court on the second occasion, for de-novo disposal.

                                   Headnotes†
       Remand – Remand by High Court – Property dispute between
       the parties – High Court remitting the matter to the trial court
       on the second occasion for de-novo disposal – Correctness:
       Held: High Court remitted the matter back to the trial court only on
       the ground that there was no proper identification of the subject land
       by the Court Commissioner – Appeal could have been very well
       decided on the basis of the interpretation of sale deed, conveyance
       deed and 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 – High Court itself could have
       appointed the Court Commissioner and called for the report – High
       Court erred in remitting the matter on the second occasion – High
       Court to decide the appeal expeditiously. [Paras 8, 13-15]

                                List of Keywords
       Remand; Sale deed; Conveyance deed; Court Commissioner;
       Remitting matter on second occasion; Further delay of proceedings;
       Remitting the matter back to the trial court for de-novo disposal;
       Property dispute; Proper identification of the land by Court
       Commissioner; Interpretation of sale deed, conveyance deed and
       settlement deed; Matter pending for more than 14 years.

* Author
1008                                                           [2025] 5 S.C.R.

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                                         Case Arising From
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7160 of 2025
       From the Judgment and Order dated 09.01.2024 of the High Court
       of Kerala at Ernakulam in RFA No. 42 of 2018

                                     Appearances for Parties
       Advs. for the Appellant:
       Dama Seshadri Naidu, Sr. Adv., Tomy Chacko, Ms. Lakshmi Kg,
       Ms. Tualia Rehman, Ashish Jacob Mathew, Shubhankar Sharma.
       Advs. for the Respondents:
       Manoj V George, Ms. Shilpa Liza George, Bibhu Dutta Das, Nasib
       Masih, Azeem Samuel, Ms. Brinda, Ms. Antra Srivastava, Raja
       Ramalingam Sethupathi R.

                        Judgment / Order of the Supreme Court

                                                  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.
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.


1    Hereinafter referred to as, “High Court”.
2    Hereinafter referred to as, “Trial Court”.
3    Hereinafter referred to as, “sale deed”.
[2025] 5 S.C.R.                                                       1009

                      Peter Augustine v. K.V. Xavier and Others


      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.
      3.4 In the meantime, on 22 nd 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
          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,


4   Hereinafter referred to as, “conveyance deed”.
5   Hereinafter referred to as, “subject land”.
6   Hereinafter referred to as, “settlement deed”.
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                         Supreme Court Reports


          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.
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 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,
[2025] 5 S.C.R.                                                               1011

                     Peter Augustine v. K.V. Xavier and Others


      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 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


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.
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     the borders and boundaries were the same and though the area
     mentioned 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.
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.
[2025] 5 S.C.R.                                                       1013

                   Peter Augustine v. K.V. Xavier and Others


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.
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.

     Result of the case: Appeal allowed.




     †
         Headnotes prepared by: Nidhi Jain