IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 FAO.No. 169 of 2008() ------------------------------- A.S. NO.25/2003 OF THE SUB COURT, CHERTHALA. OS. NO.806/1998 OF THE ADDL. MUNSIFF'S COURT, CHERTHALA ....... APPELLANTS/RESPONDENTS/PLAINTIFF ------------------------ 1. BAHULEYAN, S/O.KOCHUKANDAN, KARYATHU, PATTANAKAD MURI, PATTANAKKAD VILLAGE. 2. RADHAMONY, W/O.BAHULEYAN, DO. DO. DO. 3. SELVARAJ, S/O.BAHULEYAN, OF DO. DO. BY MR. N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): APPELLANTS/DEFENDANTS ---------------------------- 1. RAVI, S/O.VELUTHA, KOCHUKOTHAMANGALATHUCHIRA, PATTANAKKAD MURI, PATTANAKKAD VILLAGE. 2. MAHILAMANI, W/O.RAVI, OF DO. DO. DO. R1 & R2 BY ADV.MR.JOY THATTIL ITTOOP THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 169 OF 2008 = = = = = = = = = = = = = = = Dated this the 9th day of February, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, Cherthala in A.S.25/03 whereby the said court has set aside the judgment and decree of the trial court and has remanded the case for fresh disposal. In the process the learned Subordinate Judge has also set aside the Commissioner's plan and report. 2. The short question that arises for determination is whether the plaintiff is entitled to get a decree for mandatory injunction directing the defendant to vacate the hut which he is occupying. It is the case of the plaintiff that on 3.10.98 the defendants had encroached into item No.3 and had forcibly occupied the same. Therefore the relief is sought for. The defendants would contend that the plaintiffs have no manner of right over the property in which the hut is situated and the original owner of the property namely F.A.O. 169 OF 2008 -:2:- assignor of the property to the plaintiff had permitted the present defendants to occupy the excess land and in the light of that permission the hut is constructed and they are in occupation of the same. 3. Now the only question that survives for consideration is whether the plaintiff has succeeded in proving his legal right over the property where the alleged hut is situated. Now identification of the property was not found in favour by the appellate court and it set aside the Commissioner's plan and report on the basic reason that it has not been identified with respect to the title deeds of the property. I feel the whole matter can be looked into not by setting aside the Commissioner's report but by remitting the plan and report to the same Commissioner with the assistance of the surveyor so that the evidence regarding the condition of the property as existed at the time of the suit would remain for a proper appreciation of the matter by the Court which will only help both the parties and not the other F.A.O. 169 OF 2008 -:3:- way. Since the matter requires a fresh adjudication on a proper identification I feel that instead of setting aside the Commissioner's plan and report it is desirable that the Commissioner's plan and report are remitted to the same Commissioner with a direction to identify the property with respect to the contentions of the parties and for the said purpose let the parties be permitted to file work memo before the Commissioner and let the matter be proceeded thereafter. Any objections or incorrectness in the previous reports can be considered as well in a consolidated manner when the new plan and report comes and the parties are permitted to adduce evidence for or against the Commissioner's plan and report. So that right is also reserved for the parties so that incorrectness can also be challenged. With these directions I sustain the order of remand but direct the Court below to remit the Commissioner's plan and report and obtain additional plan and report with reference to the title deeds of the parties. F.A.O. 169 OF 2008 -:4:- The parties be permitted to file work memo also for noting the particulars required by them which will be helpful for the determination of the case. Parties should appear before the Court below on 1.3.2010. Being an old matter let the Court try to dispose of the matter before 30th June, 2010. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-