IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 FAO.No. 109 of 2011() ------------------------------ AS.2/2005 of I ADDL. DISTRICT COURT, PALAKKAD OS.312/1999 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------------- RAJAN, S/O.LATE CHINNASWAMY, SREERAM ILLAM, CHANDRAPURAM, CHANDRAPURAM PO, PUDUSSERY EAST VILLAGE WALAYAR, PALAKKAD DISTRICT. BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENTS/APPELLANTS: ------------------------------------------- 1. RAMATHAL, W/O.LATE KANNAYYAN, CHANDRAPURAM, CHANDRAPURAM PO PUDUSSERY EAST VILLAGE, WALAYAR, PALAKKAD DISTRICT 678007. 2. RATNASWAMY, S/O.LATE KANNYAN, DO...DO.. 3. DORAISWAMY, S/O.LATE KANNAYYAN, DO..DO.. 4. NAGARAJAN, S/O.LATE KANNAYYAN, DO..DO.. ADVS. SRI. BINOY VASUDEVAN FOR R1-4 SRI.R.MANIKANTAN FOR R1-4 SMT.P.G.BABITHA FOR R1-4 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ---------------------------- F.A.O.No. 109 of 2011 --------------------------------- Dated this the 12th day of July, 2011 JUDGMENT Aggrieved by the order of remand by the lower appellate court in A.S.No.2/2005 before the District Court, Palakkad, the respondent before the court below has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for recovery of possession on the strength of title. Plaintiffs claimed title on the basis of Ext.A1 purchase certificate dated 16.12.1976. The purchase certificate was obtained by the predecessor-in-interest of the plaintiffs. The allegation was that the defendant had no manner of right over the suit property but he had reduced a portion of the same into his possession. Therefore, the suit was laid for recovery of possession on the strength of title. 3. The defendant resisted the suit by pointing out that the allegations in the plaint are not true. According to the defendant, the plaintiffs had no manner of right title or F.A.O.No. 109 of 2011 2 possession over the suit property. Even if the plaintiffs had any right over the property, the same was lost by adverse possession and limitation. 4. Based on the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 4 and had Exts.A1 to A7 marked from the side of the plaintiffs. Defendants had DW1 and had Exts.B1 to B5 marked. Ext.CW1 is the court witness and Exts.C1 to C5 are the commissioner's report and plan. On an evaluation of the evidence in the case, the trial court came to the conclusion that the plaintiffs had failed to get the property identified and also failed to establish the title to the suit property and accordingly dismissed the suit. 5. The plaintiff carried the matter in appeal as A.S.No.2/2005. The lower appellate court on an evaluation of the evidence, found that the trial court had not chosen to accept the commissioner's report. It also noticed that there was an application filed as I.A.No.2252/2003 pointing out deficiencies and insufficiencies in the commissioner's report and seeking for remitting the commissioner report for obtaining a proper plan. F.A.O.No. 109 of 2011 3 The court below dismissed that application. The findings of the court below that relying on survey number the property cannot be identified is not correct and that when the commission report and plan were found to be not helpful to identify Ext.A1 property, the court below ought to have allowed I.A.No.2252/2003. The lower appellate court felt that the proper sketch and plan is necessary for effective adjudication of the issues involved in the suit. Accordingly, the appeal was allowed. The judgment and decree under appeal are set aside and matter remanded to the court below to consider it afresh on merits the claims of both the parties and to dispose of it in accordance with law. The lower appellate court also observed that opportunities will be given to the plaintiffs to take steps for remitting reports and plans to the same commissioner for submitting additional report and plan after measuring and demarcating the properties covered by Exts.A1, A3 and B1 by a Taluk Surveyor. 6. The grievance is regarding the above remand order. The learned counsel appearing for the appellant contended that the lower appellate court has not decided the case on merits and has F.A.O.No. 109 of 2011 4 remanded the suit merely on the basis of an IA said to have been filed by the plaintiffs. According to the learned counsel, the lower appellate court had not considered the various reasons given by the trial court to non-suit the plaintiffs. There was no justification for the lower appellate court in not considering the case on merits and in remanding the matter. 7. Though the arguments look very attractive it has to be said that they are without merits. 8. It is significant to notice that the plaintiff claims the property on the basis of Ext.A1 purchase certificate. Obviously, the trial court had omitted to take note of Section 72 K of the Kerala Land Reforms Act. 9. The trial court then makes an attempt to identify the property covered by Ext.A1. An I.A. had been filed before the trial court by the plaintiff pointing out the defects in the commissioner's report and anomalies between the commissioner's report and plan. It is also significant to notice that there was no attempt from the side of the defendant to have his property identified, though their case was that the plaint F.A.O.No. 109 of 2011 5 schedule property is taken in by Ext.B1 dated 29.12.1976. 10. On going through the commissioner's report, it is seen that the commissioner was able to locate the plaint schedule property with respect to the boundaries on site but the trial court rejected it on flimsy grounds. The lower appellate court could not concur with the findings of the trial court that plaint schedule property could not be identified by the commissioner. The lower appellate court felt that the proper adjudication of the issues involved in the case, a proper plan, sketch and report after identifying the three properties covered to Exts.A1, B1, A3 are necessary for a proper resolution of the dispute. It could not be stated that the finding of the lower appellate court is either perverse or unwarranted by the materials on record. In the nature of the findings entered into by the trial court, it is felt that the findings of the lower appellate court is justifiable. The lower appellate court has taken note of the fact that once the commissioner report was found not acceptable by the trial court, the court ought to have considered the IA.No.2252/2003, an application filed for remitting the commissioner's report. Further, F.A.O.No. 109 of 2011 6 a reading of the trial court judgment shows that the findings are unsupportable in law and on fact for several reasons. It is felt that for the issues involved in the case a proper sketch and plan have to be obtained. There is no reason to interfere with the finding of the lower appellate court. It cannot be said that the findings are unjustified and unwarranted by the evidence on record. This F.A.O is without any merits and it is accordingly, dismissed. P.BHAVADASAN, JUDGE. ln