IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 FAO.No. 257 of 2006 ---------------------------- AS.75/1999 OF ADDL. DISTRICT COURT, PATHANAMTHITTA, OS.531/1995 OF MUNSIFF COURT, RANNI. .................... APPELLANTS/ RESPONDENTS 1 TO 4/ ADDITIONAL DEFENDANTS 3 TO 6: ---------------------------------------------------------------------------------------------------------- 1. LALITHA SIMON, W/O.SIMON, CHAKKUPURACKAL HOUSE, KUMARAMPEROOR VADAKKEKARA MURI, VADASSERIKKARA VILLAGE, (CHAKKUPURACKAL PHILIPS HOUSE, NEAR CIVIL STATION, KAKKANADU P.O., COCHIN 30) 2. PHILIP ABRAHAM, S/O.ABRAHAM, CHAKKUPURACKAL HOUSE, KUMARAMPEROOR, VADAKKEKARA MURI, VADASSERIKKARA VILLAGE. 3. RAJU ABRAHAM, S/O.ABRAHAM, CHAKKUPURACKAL HOUSE, KUMARAMPEROOR, VADAKKEKARA MURI, VADASSERIKKARA VILLAGE. 4. ANCY JOHN, W/O.JOHN, CHAKKUPURACKAL HOUSE, KUMARAMPEROOR, VADAKKEKARA MURI, VADASSERIKKARA VILLAGE. APPELLANTS 1,3 & 4 ARE REPRESENTED BY THE 2ND APPELLANT, THEIR POWER OF ATTORNEY HOLDER. BY ADV. SRI.A.K.MADHAVAN UNNI. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- ABRAHAM, S/O.POTHEN MATHAI, CHAKKUPURACKAL HOUSE, KUMARAMPEROOR, VADAKKEKARA MURI, VADASSERIKKARA VILLAGE. BY ADV. SRI.V.PHILIP MATHEW - R1. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/06/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- F.A.O. No. 257 OF 2006 --------------------- Dated this the 16th day of June, 2008 JUDGMENT This appeal is preferred against the judgment in AS 75/99 whereby the Additional District Judge, Pathanamthitta, has remanded the case for fresh consideration. Since this court is considering only about the correctness of the order of remand, this court is not expected to go into the other details which may have real bearing if ultimately the order of remand is sustained. The Apex court has made it clear that even in cases of remand unless there is substantial question of law involved, the High Court shall not unnecessarily interfere with. 2. Now, with this principle in mind, a perusal of the judgment would reveal that the trial court dismissed the suit on the ground that the property is not properly identifiable. The appellate court said that in such a contingency when there is already a commissioner’s report and plan available, which the court feels is not sufficient for identification of the property, the court should have remitted back the commissioner’s report and plan or appointed a new commissioner for the purpose of identifying the property. A perusal of the judgment FAO No.257/06 2 would reveal that it is absolutely essential to find out whether the property is identifiable. Unless the property is in existence, there cannot be any demand for partition or the partition decree can be allowed. Now only an opportunity is granted to the party to establish the factum of identity of property. The court also found that the document produced along with the appeal deserves consideration, that also is ordered to be considered. I cannot find any error committed by the appellate court so as to raise a substantial question of law to entertain this FAO. Therefore the FAO is dismissed and the trial court is directed to proceed with the matter in accordance with the order of remand of the District Judge. Being an old matter, the learned Munsiff shall try to have expeditious disposal of the matter. Parties are directed to appear before the trial court on 22.7.08. M.N.KRISHNAN, JUDGE vps FAO No.257/06 3 FAO No.257/06 4 FAO No.257/06 5