SUSEELA JACOB HYSON Vs. SOUMINI JOSE

JUDGEMENT

(1.) Petitioner is the plaintiff in a suit for declaration of title and putting up of boundary. She claimed title and possession over two items of property on the basis of a will executed by her father. The defendants resisted the suit disputing the genuineness of the will apart from challenging the competency of testator over the bequests made and identity of properties described in the plaint. An Advocate Commissioner deputed by court with the assistance of a Surveyor after conducting local inspection filed a preliminary report that the plaint properties are not identifiable and they cannot be measured out. After filing of such report the case came up in the list and evidence of plaintiff was completed. In the course of recording such evidence the advocate commissioner was also examined as a witness. On the answers elicited from advocate commissioner that if deputed again he would make a fresh attempt to measure out the properties, plaintiff moved petitions for reopening her evidence and for deputing the commissioner again to measure out the properties. Those applications were opposed by the defendants. Learned Munsiff considering the applications found them meritless, and dismissed them. Challenge in the original petition invoking the visitorial jurisdiction of this court is against the orders so passed by the learned Munsiff.

(2.) Fixing the identity of properties described in the plaint is essential to sustain the reliefs canvassed in the suit, is the submission of the learned counsel for plaintiff pointing out that what has been filed as a report by the advocate commissioner is only a preliminary report and therefore he has to be directed to file a final report after conducing further inspection of the properties. After perusing the materials produced with the impugned orders passed by the learned Munsiff, I am unable to subscribe to the submission made by the learned counsel for petitioner. Whether it is a preliminary or final report the commissioner has reported to the court that the properties scheduled in the plaint cannot be measured out.

(3.) However, I make it clear that in case the genuineness of the will and also its validity as conferring title over the plaint properties on the plaintiff are established on the evidence let in the case the orders passed by the court impugned in the petition will not stand in the way of passing orders afresh over the request made by the plaintiff for identifying the properties covered by the will. Since the suit claim for title is based on a will which is disputed whether under such will plaintiff has obtained title over the properties has to be gone into, for which the antecedent title of testator would also require consideration. The court on the evidence let in has to consider whether title under will claimed is established by plaintiff and if only an affirmative finding is made thereof any further enquiry need be gone into over the dispute regarding the identity of properties. Adjudication over the dispute of identity need be proceeded only if plaintiff has established her title on the basis of will. If plaintiff fails to establish title question of resolving the dispute over identity does not arise. Original petition is disposed directing the court below to resolve the question relating to title claimed on the basis of disputed will as a preliminary issue, and if such title claimed is established then to consider the dispute regarding the identity over the plaint properties. In case the issue on title claimed under will is decided in favour of plaintiff, then, the impugned order challenged in the petition will not stand in the way of the plaintiff to seek for identification of the properties with the assistance of advocate commissioner.