IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 FAO.No. 258 of 2011() --------------------- AS.11/2010 of SUB COURT, PERUMBAVOOR OS.382/2007 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/RESPONDENT/DEFENDANT/CROSS OBJECTOR ------------------------------------------------------------------------------------- KITEX LIMITED,KIZHAKKAMBALAM, REPRESENTED BY MANAGING DIRECTOR, M.C.JACOB,S/O.CHACKO (DIED). KITEX LIMITED,KIZHAKKAMBALAM, REPRESENTED BY PRESENT MANAGING DIRECTOR, BOBY M JACOB, S/O.M C JACOB (LATE) BY ADV. SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. M.P.PETER,AGED 56,S/O.POULOSE, MEKKAMKUNNEL HOUSE,VILANGU,KIZHAKKAMBALAM VILLAGE (PO) KIZHAKKAMBALAM 683562. 2. NIDHIYA PETER,AGED 26,D/O.M.P.PETER,MEKK AMKUNNEL HOUSE,VILANGU,KIZHAKKAMBALAM VILLAGE 683562,(REPRESENTED BY POWER OF ATTORNEY HOLDER M.P. PETER) 3. RUBY PETER,AGED 51 YEARS, W/O.M.P.PETER,MEKKAMKUNNEL HOUSE, VILANGU,KIZHAKKAMBALAM VILLAGE 683562, (REPRESENTED BY POWER OF ATTORNEY HOLDER M.P.PETER). THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- FAO No.258 of 2011 ------------------------------------- Dated this the 27th day of September 2011 Judgment This appeal is directed against the order of remand dated 8.7.2011 in AS No.11/10 which arose from OS No.382/07. 2. OS No.382/07 was a suit for declaration, permanent prohibitory injunction and for demarcation of the plaint schedule property. The plaintiffs claim to be the absolute owner in possession of an extent of 13.25 cents comprised in old Survey No.411/2B 3 of Kizhakkambalam village, which they obtained, according to them, as per Exts.A1 and A2 deeds. The property originally belonged to their father, who obtained it under a family partition. The first plaintiff claimed to have constructed a building in the property after demolishing the old building. On the allegation that FAO 258/11 2 the defendants are claiming title and possession over plaint schedule property on the basis of document No.481/7, the suit was laid for necessary reliefs. 3. The defendant resisted the suit. They pointed out that the property claimed by the plaintiff is not situated in Survey No.411/2B and it is part of property comprised in Survey Nos.412/1 and 2 which in fact belong to the defendant, which they obtained under document No.481/76 of SRO, Puthencruz. It is also contended that the predecessor-in-interest of the plaintiffs had assigned the property obtained by him in the partition deed, to others and there was nothing left to be assigned to the plaintiffs. It was also contended that the document relied on by the plaintiffs do no take in the property comprised in Survey No.411/2B. On the basis of these contentions, they prayed for dismissal of the suit. FAO 258/11 3 4. On the above pleadings, issues were raised. The evidence consists of the testimony of Pws 1 to 4 and Exts.A1 to A23 documents marked from the side of the plaintiff. The defendant had Dws 1 to 4 examined and Exs.B1 to B16 marked. Exts.C1, C1(a) and C1(b) commissioner's report and survey plan were also marked. 5. The trial court, on an evaluation of the evidence, came to the conclusion that the property comprised in Survey No.411/2B was belonging to the defendant and also that the properties were properly identified. The suit was accordingly dismissed. 6. The plaintiffs carried the matter in appeal as AS No.11/10 and the defendant filed cross objections, before the Sub Court, Perumbavoor. The lower appellate court, on an evaluation of the evidence, found the findings of the trial court to be totally FAO 258/11 4 unsustainable both in law and on facts and thought it fit to remand the matter to the trial court for proper identification of the property and determination of the issues afresh in accordance with the plan so obtained. It is the said order that is assailed before this court. 7. The trial court has come to the conclusion that the plaint schedule property is owned by the defendant and it is comprised in Survey No.411/2B which is a case which the defendant did not have. Their case was that the document of title relied on by the plaintiffs does not take in the property comprised in Survey No.411/2B but, takes in the property covered by the documents of title belonging to the defendant. It is significant to notice that to the commissioner's report, the plaintiffs had field serious objections and they were able to substantiate the same at the time of trial. The trial court found that the commissioner's report is totally FAO 258/11 5 unacceptable or want of proper identification, but instead of deputing another commissioner of directing the commissioner to file a fresh report, dismissed the suit, holding that there was no prayer to set aside the commissioner's report and there was no proper identification of the property. The lower appellate court on the other hand, found that the defendant had no case that they had any property in Survey No.411/2B and that the trial court has erred in holding that the plaint schedule property belonged to the defendant. It referred to the evidence of the commissioner and surveyor in detail and found that their evidence are totally inconsistent and contradictory and it could not be said that there was proper identification of the property. The lower appellate court felt that without proper identification of the property, the issues involved in the suit could not have been determined. The lower FAO 258/11 6 appellate court also found the claim of the defendants that the predecessor-in-interest of the plaintiffs did not have property left with him to be assigned to the plaintiffs cannot be true, going by the evidence in the case. The court below found that having found that the commissioner's report is not acceptable, the court below ought to have remitted the report to the commissioner or obtained a fresh report. 8. One must remember that the suit is one for declaration of title and demarcation of the property from the property owned by the defendant which appears to be adjacent property. A proper identification was absolutely necessary in order to resolve the controversies involved in the case. It is significant to notice that the plaintiffs as well as the defendants had filed objections to the report and the trial court had found that the report cannot be accepted. The lower FAO 258/11 7 appellate court has also given sufficient reasons as to why the commissioner's report cannot be accepted. It cannot be disputed that identification of the property is the main issue involved in the suit. It is under these circumstances that the lower appellate court was constrained to allow the appeal and remand the matter to the trial court for fresh determination in accordance with law after obtaining proper report and to consider the issues involved in the suit. It could not be said that the remand order is unjustified. It seems to be a fair order. Moreover, no prejudice is caused to the appellant s by the remand order especially, when both the parties are given liberty to adduce further evidence and establish their case. No grounds are made out to interfere with the order of remand passed by the lower appellate court. However, it is directed that the trial court may make every endeavour to dispose of the suit FAO 258/11 8 as expeditiously as possible. The appeal is disposed of as above. P.Bhavadasan, Judge sta FAO 258/11 9