IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 FAO.No. 89 of 2009() -------------------- AS.9/2006 of ADDL. DISTRICT COURT, PARAVUR OS.147/1997 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/APPELLANT/IST DEFENDANT ----------------------------------------------------- MOHANAN, S/O.ACHUTHAN, KOLLAM VEETTIL, THEKKUMPURAM KARA, CHENDAMANGALAM. BY ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENT(S): RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT ------------------------------------------------------------------------ 1. DINESHAN, S/O.ACHUTHAN, KOLAM VEETTIL, THEKKUMPURAM KARA, CHENDAMANGALAM VILLAGE, NOW RESIDING AT KOLAM VEETTIL, ERIYAD KARA, THRISSUR DISTRICT. 2. SAJITH, W/O.DINESHAN, -DO- -DO- 3. UDAYAN, S/O.ACHUTHAN, KOLAM VEETTIL, THEKKUMPURAM KARA, CHENDAMANGALAM VILLAGE. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1255/2009 IN F.A.O. NO.89/2009 27.3.2009 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO.89 OF 2009 =========================== Dated this the 27th day of March,2009 JUDGMENT First defendant the appellant in A.S.9/2006 on the file of Additional District Court, North Paravur is challenging the order of remand passed by the Additional District Judge. Respondents 1 and 2 are the plaintiffs and third respondent, the defendant in the suit. The suit was for recovery of possession and injunction. Learned Munsiff granted a decree for recovery of possession of 10.561 cents shown as plot 'e' in Ext.C2(a) plan, finding that respondents 1 and 2 have title to the property. Appellant was also restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property. It was challenged before Additional District Court in A.S.9/2006. Learned Additional F.A.O 89/2009 2 District Judge on hearing the appeal found that the property was not properly identified by the Commissioner. On the evidence of the Commissioner as PW2 it was found that the Commissioner did not even attempt to examine the basic document by which the property claimed by respondents 1 and 2 were obtained by their predecessor. It is in such circumstance, learned District Judge remanded the suit holding that a proper identification of the property is necessary. It is challenged in the appeal. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that even without identification of the property, the suit should have been dismissed. The argument is that the donor of the assignees of respondents 1 and 2 obtained title to only 35.06 cents and they cannot claim title to the additional extent as the donor did not get right over that property and this F.A.O 89/2009 3 aspect was not taken into consideration by the learned District Judge and therefore the order of remand is bad. 4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 5. Being a suit for recovery of possession, the property is to be properly identified. According to the appellant, respondents did not get title to the disputed property, as Karunakaran under whom respondents 1 and 2 claim title, did not deserve title for more than 35.06 cents and therefore the suit is to be dismissed. 6. The Commissioner admittedly did not identify the property with reference to basic document No.2608/1122 M.E by which Karunakaran obtained title to the property which was subsequently gifted. The learned District Judge rightly found that for an effective resolution of the dispute between the parties, it is necessary to F.A.O 89/2009 4 identify the property with reference to the basic document. In such circumstance, I find no reason to interfere with the order of remand. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006