IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 FAO.No. 120 of 2006() --------------------- AS.44/2001 of SUB COURT, HOSDRUG OS.115/1997 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS(RSPONDENTS 2 TO 6/LEGAL REPRESENTATIVE OF DEFENDANT ---------------------------------------------------------------------- 1. T.K. FATHIMA, W/O. LATE T.P.MUHAMMEDKUNHI, RESIDING AT LATHEEF MANZIL, KOOLIYANGAL, HOSDRUG VILLAGE, P.O. KANHANGAD, KASARAGOD DISTRICT. 2. T.K. AHAMMED, S/O. LATE T.P.MUHAMMEDKUNHI, RESIDING AT LATHEEF MANZIL, KOOLIYANGAL, HOSDRUG VILLAGE, P.O. KANHANGAD, KASARAGOD DISTRICT. 3. T.P.ABDULLA, S/O. LATE T.P. MUHAMMEDKUNHI, RESIDING AT LATHEEF MANZIL, KOOLIYANGAL, HOSDURG VILLAGE, P.O. KANHANGAD, KASARAGOD DISTRICT. 4. T.K. MARIYAM, D/O.LATE T.P.MUHAMMEDKUNHI AND W/O.T.P.KUNHABDULLA RESIDING AT LATHEEF MANZIL, KOVVALPALLY, P.O. KANHANGAD, KASARAGOD DISTRICT. 5. T.K. SAFIYA, W/O.LATE T.P. MUHAMMEDKUNHI AND W/O.P.V.ABOOBACKER PUMB HOUOSE ROAD, KOOLIYANGAL, P.O. KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA RESPONDENT/ (APPELLANT/PLAINTIFF): ------------------------------------- M.S. SUBAIDA, W/O.T.P.ABDULLA AND D/O.SOMAYYA, RESIDING AT KOOLIYANGAL, HOSDURG VILLAGE, P.O. KANHANGAD, KASARAGOD DIST. BY ADV. SRI.C.MURALIKRISHNAN (PAYYANUR) BY ADV. SRI.JAWAHAR JOSE THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 24/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.2194/2006 IN FAO.NO.120/2006 ------------------- DISMISSED 24/3/2011 Sd/- HARUN-UL-RASHID, JUDGE. TRUE COPY P.S. to Judge HARUN-UL-RASHID,J. ------------------------------- F.A.O. NO. 120 OF 2006 ------------------------------- DATED THIS THE 24TH DAY OF MARCH, 2011 JUDGMENT Appellants are the legal heirs of the sole defendant in O.S.No.115/1997 on the file of the Munsiff's Court, Hosdrug. The appeal is directed against the judgment dated 13/2/2006 in A.S.No.44/2001 on the file of the Sub Court, Hosdrug. The Lower Appellate Court remanded the case for fresh consideration. The parties are hereinafter referred to as the plaintiff and defendant. 2. The respondent herein filed the suit for fixation of boundaries and for permanent prohibitory injunction. The suit properties namely, schedule A of items 1 to 3 is a compact plot of 11 l/2 cents. Item No.1 is 5 cents, item 2 is 2 1/2 cents and item 3 is 4 cents. The defendant's property lies on the north of the paint schedule property. Plaintiff is residing in the plaint schedule property. The defendant's property is situated on the north of item No.1 of plaint A schedule property. There is no compound wall on -2- F.A.O.No.120/2006 the north of item No.1. According to the plaintiff, the defendant taking advantage of the absence of a compound wall on the north of item No.1 falsely put forward a claim that the old septic tank situated in item No.1 belongs to him. The plaintiff's case is that the septic tank in item No.1 belongs to him and that the boundary line between the properties lies to the north of the septic tank. 3. The defendant denied the plaint averments and prayed for dismissal of the suit. The plaintiff was examined as PW1 and Exts.A1 to A7 were marked on her side. Defendant did not adduce any oral evidence. Ext.B1 is marked on the side of the defendant. Exts.C1 to C4 were marked as court exhibits. The Commissioner was examined as CW1. 4. The trial court on appreciation of the facts and evidence including the commissioner's reports and plans, held that the plaintiff has got no title or possession over the entire portion of item No.1 of the plaint schedule property. Plaintiff's title and possession over items 2 and 3 are not disputed. In fact, the said items lie on the southern side of item No.1. On the basis of the -3- F.A.O.No.120/2006 finding that the plaintiff has not proved title or possession over the entire portion of item No.1, the trial court dismissed the suit. The plaintiff preferred an appeal challenging the dismissal of the suit. The Lower Appellate Court examined the contentions of the parties, referred to the documents produced and appreciated the evidence. The Lower Appellate Court observed that considering the dispute advanced by both sides only on measurement of both properties especially defendant's property and item No.1 of the plaint schedule property then only he can arrive at a finding that which is the exact boundary which separates the plaint schedule property from the defendant's property. The Appellate Court noticed the fact that the defendant's property was not measured by the Commissioner with reference to the title deed and that the Commissioner has failed to ascertain which is the exact point of northern boundary of item No.1 of the plaint schedule property. The Appellate Court rightly observed that Exts.C3 and C4 are not sufficient to ascertain the exact boundary which separates the plaint schedule property from the defendant's property. Therefore the -4- F.A.O.No.120/2006 Appellate Court took the view that unless and until the boundary which separates the plaint schedule property with the defendants property has been fixed it is not possible to dispose of the matter properly. 5. In these circumstances, the Appellate Court observed that one chance can be given to the appellant/plaintiff to enable him to remit the commission report and plan to the same commissioner with a direction to ascertain what is the exact boundary on the basis of the tile deed of the plaint schedule property and the defendants' property. The Appellate Court also observed that since the important prayer is fixation of boundary, the trial court is expected to frame a specific and definite issue with regard to that. But it is seen that the trial court failed to frame such an issue and failed to answer the exact boundary. Therefore, to adjudicate the question in a proper manner the Lower Appellate Court thought it fit to remand the case for fresh consideration. The Appellate Court issued appropriate directions in this regard. 6. After hearing both sides and after perusing the -5- F.A.O.No.120/2006 records, this Court is of the view that the decision to remand the case for fresh disposal cannot in any manner be interfered with. In the facts and circumstances I have discussed above, the only course open to the Lower Appellate Court is to remand the case for fresh disposal. This Court finds that the appellants have not made out any valid grounds to interfere with the judgment remanding the case for fresh disposal. The trial court shall hear and dispose of the matter afresh as directed by the Lower Appellate Court untrammelled by any of the findings and observations made in the judgments of the trial court and the Appellate Court. In the result, the appeal stands dismissed. No order as to costs. Sd/- HARUN-UL-RASHID, Judge. kcv.