IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 FAO.No. 24 of 2006() ---------------------------- AS.46/2003 of ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA .................... APPELLANTS - RESPONDENTS NO.1 AND 3 DEFENDANTS 1 AND 3. ----------------------------------------------------------------------------------------------- 1. K.P. BABU, S/O. PAULOSE, AGED 42, THEPPALA HOUSE, KOOMPAN PARA, ADIMALAI. 2. GOODLAND PLANTATIONS, VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK, REP. BY ITS MANAGER. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENTS-APPELLANTS AND RESPONDENT NOS 2 AND 4 TO 8 PLAINTIFFS AND DEFENDNTS 2 AND 4 ------------------------------------- 1. PHILIP GEORGE, S/O. VARGHESE, AGED 59, RESIDING AT VETTICHIRA, CHAMPAKULAM VILLAGE, ATTUVATHALAMURI, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 2. ULAHANNAN MATHEW, S/O. ULAHANNAN, AGED 68, VAZHEPARAMBIL HOUSE, VADAKKUMMURI, VAZHAPPALLY MURI, CHANGANACHERRY. 3. MARIAMMA JOSEPH, W/O. JOSEPH, VETTICHIRAYIL HOUSE, THEKKEKARA P.O., CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 4. ANU. K.JOSEPH, AGED 20, D/O. LATE JOSEPH, VETTICHIRA KUNJNUPARAMBIL HOUSE, ATTUVATHALA KARA, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 5. MINU K. JOSEPH, AGED 20, D/O. LATE JOSEPH, VETTICHIRA, KUNJU PARAMBIL HOUSE ATTUVATHALA KARA, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 6. GOGY K. JOSEPH (MINOR) AGED 17, S/O. LATE JOSEPH, VETTICHIRA KUNJU PARAMBIL HOUSE, ATTUVATHALA KARA, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. 7. TIJO K. JOSE (MINOR), AGED 14, S/O. LATE JOSEPH, VETTICHIRA KUNJU PARAMBIL HOUSE, ATTUVATHALA KARA, CHAMPAKULAM VILLAGE, KUTTANADU TALUK, ALAPPUZHA DISTRICT. FAO.No. 24 of 2006() -2- * 8. JOHNY, AGED 26, EMPLOYEE, - DELETED GOODLAND PLANTATIONS, VATTAYAR P.O., PALLIVASAL VILLAAGE, DEVIKULAM TALUK. - DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANT VIDE ORDER DATED 29.1.2008 ON I.A. NO. 380/08 9. PURUSHAN, AGED 50, RESIDING AT PANKAJAM ESTATE LAYAM, VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. 10. UDAYAN, S/O. THANKAPPAN, AGED 25, LUCKY ESTATE, PURAMBOKE, VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. * * 11. MERCY W/O UDAYAN, AGED 30 YEARS, - DIED, LRs IMPLEADED LUCKY ESTATE, PURAMBOKE, VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. - LEGAL REPRESENTATIVES IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 16 12. SIVALINGA THEVAR @ SEVAN, AGED 45 YEARS, VETTICHIRA ESTATE, VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. 13. VAIRAMANI, W/O. SEVAN, AGED 45 YEARS, RESIDING AT VETTICHIRA ESTATE VATTAYAR P.O., PALLIVASAL VILLAGE, DEVIKULAM TALUK. * (NAME OF 8TH RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANT VIDE ORDER DTD. 29.1.08 ON I.A. 380/08) ADDITIONAL RESPONDENTS 14. ALEXAMMA @ AMMAL, POTTACKAL LUCKY ESTATE, PURAMBOKE, VATTAYAR P.O., IDUKKI DISTRICT. 15. ASHA, D/O MERCY, POTTACKAL LUCKY ESTATE, PURAMBOKE, VATTAYAR P.O., IDUKKI DISTRICT. 16. NISHA, D/O MERCY, POTTACKAL LUCKY ESTATE, PURAMBOKE, VATTAYAR P.O., IDUKKI DISTRICT. - THE LEGAL REPRESENTATIVES OF THE 11TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 14 TO 16 VIDE ORDER DATED 16.6.2008 ON I.A. 378OF 2008. ** (THE LEGAL REPRESENTATIVES OF DECEASED 11TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 14 TO 16 VIDE ORDER DTD. 16.6.08 ON I.A. 378/2008) BY ADVS. SRI.JACOB THOMAS FOR R1 TO 7 SRI. HARIHARA PUTHRAN SRI. GEORGE MATHEW THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 24 of 2006() I.A. NO. 348/2006 & I.A. NO. 3845/2007 IN FAO.No. 24 of 2006() DISMISSED SD/- M.N.KRISHNAN, JUDGE 28.1.2009 // TRUE COPY // PA TO JUDGE rhs M.N. KRISHNAN, J ----------------------- F.A.O.No. 24 OF 2006 --------------------------------- Dated this the 28th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment in A.S. 46/03 of the Additional District Judge, Thodupuzha. The said appeal was preferred against the judgment and decree in O.S. 48/96 of Subordinate Judge, Thodupuzha. The suit is one for fixation of boundaries with respect to items 1 to 3 plaint schedule, for a permanent injunction and to declare the specific right of the 1st plaintiff over item No. 1 of the schedule, declaration of title over item No.2 by plaintiffs 3 to 7 and item No. 3 as well and for damages etc. and also for recovery of possession. 2. There are 3 items attached to the plaint schedule. Item No. 1 is having an extent of 45 cents in Survey No. 105/4/8 (105/11). Item No. 2 is having 2 acres and 99 cents in Survey No. 103 and item 3 is having an extent of 1 acre and 90 cents in Survey No. 103. It is the case of the plaintiffs that item No.1 attached to the plaint schedule belong to the 1st plaintiff under a Kuthakapattam which is subsequently renewed for 20 years. Item No.2 is claimed by the 2nd plaintiff and Item No.3 by the 3rd plaintiff by virtue of F.A.O.No. 24/2006 -2- documents of 1967. During the pendency of suit supplemental plaintiffs are impleaded. The trial court on consideration of the materials dismissed the suit. 3. It is the case of the defendants that the plaintiffs did not have any title to right or possession over the plaint schedule property. It has to be stated that pleadings of this nature in a suit for title is really insufficient. But the matter has to be considered at any rate. The trial court dismissed the suit on the ground that the plaintiffs have not succeeded in proving the the title with respect to items 1 to 3 and also the identification. During the pendency of the appeal the plaintiffs have produced a document of lease arrangement for cardamom cultivation in favour of the 1st plaintiff covering an extent of 45 cents in Survey No. 105/4/8 (105/11). Ext. A9 is the sketch attached to this document. This is issued in the year 1996. With respect to items 2 and 3 of the plaint schedule the assignment is evidenced by Ext. A2 and the 2nd plaintiff is allotted B schedule and the 3rd plaintiff’s husband is allotted E schedule. It is a registered instrument of the year 1967. So prima facie there are three documents namely A2, A8 and A9 on the basis of which the plaintiffs are claiming title to the property. If the F.A.O.No. 24/2006 -3- properties are properly identified with respect to this document, then there may be a probable case for the plaintiffs. At the same time the genuineness, correctness and impact of the same on the defendants are matters which requires consideration. Unless one is able to find out the property involved in the dispute and unless it is identified and connected to the documents of title relied on by the plaintiffs, the plaintiffs may not be able to succeed in suit for declaration of title or recovery of possession. The plaintiffs have claimed this 45 cents of land even as per the plaint on the basis of a Kuthakapattam. But they did not produce the document. That document was made available before the appellate court and the appellate court had taken into consideration and remanded the case. The appellate court also held that attempt should be made to locate plaint items 2 and 3 and for that purpose the Commissioner’s plan and report are to be remitted back. Or in other words the scope of remand is for a proper identification of the property in order to find out whether the documents relied upon by the plaintiffs is related to the same property for the purpose of adjudication of the right of parties. Therefore for a proper adjudication, the order of remand was absolutely necessary and F.A.O.No. 24/2006 -4- warranted and it has been done rightly by the appellate court. I do not want to interfere with the said decision but make it clear that the order shall be a open remand and in case of necessity the plaintiffs and defendants are at liberty to amend the pleadings or file additional written statement and the matter be adjudicated in accordance with documents relied upon by the parties. F.A.O is disposed of accordingly. Parties are directed to appear before the trial court on 5.3.2009. M.N. KRISHNAN,JUDGE vkm