IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 FAO.No. 35 of 2006 -------------------- (AGAINST THE JUDGMENT DATED 17.11.2005 IN A.S.NO. 112/2005 ON THE FILES OF ADDITIONAL DISTRICT JUDGE, N. PARUR) APPELLANT/2ND RESPONDENT IN APPEAL/3RD DEFENDANT IN SUIT: -------------------------------------------------------------------------------------------------- VIJAYAN, AGED 55, S/O.GANGADHARAN, KALATHIL HOUSE, CHITTATTUKARA KARA, VADAKKEKARA VILLAGE, PARAVUR TALUK. BY ADVS. SRI.M.V.BOSE SRI. VINOD MADHAVAN RESPONDENTS: ---------------------- 1. PONNAMMA, AGED 62, W/O.SADASIVAN, KANDATHIL, KAITHARAM KARA, KOTTUVALLY VILLAGE, PARAVUR TALUK. 2. BHAIMY, AGED 65, W/O.SUNDARAN, KADAVIL HOUSE, KEDAMANGALAM KARA, EZHIKKARA VILLAGE, PARAVUR TALUK. BY ADV. SRI.T.K.VENUGOPALAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O. No. 35/2006 ORDER IN I.A. NO. 470/2006 IN F.A.O. NO. 35/2006 DISMISSED. SD/- M.N. KRISHNAN, JUDGE. 16.09.2008 /TRUE COPY/ P.A. TO JUDGE. vkm M.N. KRISHNAN, J. ------------------------------ F.A.O. No. 35 of 2006 ------------------------------ Dated this the 16th day of September, 2008 JUDGMENT This appeal is preferred against the judgment of the Additional District Judge , North Paravur in A.S. NO.112/05. The said appeal is preferred against the judgment of the Munsiff's Court, North Paravur in O.S. No.851/2001. The suit was run for fixation of boundary, recovery of possession and also for injunction. Exhibit A1 is a document whereby two schedules namely first schedule and second schedule having an extend of 41 cents in toto had been distributed among the children. The first schedule having an extent of 43 cents, is distributed as follows; the western end of 10 cents is allotted to Bhaimy, Second defendant; then 18 cents on the eastern side of the same to Ponnamma, plaintiff; 10 cents further east of the same to one Thambi; 5 cents on the eastern most extremity to Rajagopal along with 5 more cents of property described in the schedule. It is seen that over and above this Laxmi have 28 cents of property, out of which, she had sold some F.A.O. No. 35/ 2006 2 property to DW2 by way of kudikidappu. Of the remaining 23 cents 2.583 cents is sold to one Hari. The balance 20.417 cents together with 2 cents of property obtained by D2 by way of Exhibit A1 document, had been assigned. So the whole question reveals upon the factum of the real location and enjoyment of the property by the respective people on the basis of the respective document relied on by them. I think, it may not be desirable on the portion dwelt deep into the matter for the reasons, the courts below, the trial court may feel that the High Court has expressed its view. Therefore, what is looked into is whether the appellate court was justified in remanding the case back to the Trial court for a proper disposal, by issuance of the Commission to measure the property on the basis of title deeds and survey records. The appellate court has also directed the Commissioner to incorporate all details and datas, which are necessary to ascertain the extent and area of the property shown in the plan as different plots. I think, in a suit of title, it may be absolutely relevant to demarcate the property with respect to the respective title deeds of the parties, also taking into consideration their contentions and thereafter to dispose of the matter F.A.O. No. 35/ 2006 3 in accordance with law. So far as the adverse possession and limitation is concerned, that will arise only if the property is properly identified and located. Therefore, it is true that the plaintiff should have been more vigilant in the trial stage itself to get these details for a proper disposal of the matter. Since parties claiming the properties on the strength of verifying same documents and also other documents belonging to Mother Laxmi, I feel it is a fit case where an opportunity has to be given so as to demarcate the property with respect to the title deeds of the parties in reference to the respective title deeds. Therefore, I do not find any ground to interfere with the decision rendered by the appellate court for remanding the case. I make it very clear that I have expressed anything on the merit of the case, but I make it clear that the properties are to be demarcated with respect to the respective title deeds of the parties and the matter be considered in the light of the contentions raised by the different parties. Parties are directed to appear before the trial court on 24/10/2008. The trial court shall endeavor to dispose of the matter as expeditiously as possible, at any rate within a period of six months from the date of the F.A.O. No. 35/ 2006 4 appearance of the parties before the said court. M.N. KRISHNAN, JUDGE scm