IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 FAO.No. 1 of 2008() ------------------- AS.28/2007 of SUB COURT, PERUMBAVOOR OS.648/1998 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS/PLAINTIFFS ----------------------------------------------------- 1. ACHUTHAN, AGED 60 YEARS, EX-MILITARY, RESIDING AT MADAPPOURATH FROM NANGELI HOUSE, AIMURYKARA, KOOVAPPADY VILLAGE. 2. LEELA, AGED 57 YEARS, W/O ACHUTHAN, RESIDING AT MADAPPOURATH FROM NANGELI HOUSE, AIMURYKARA, KOOVAPPADY VILLAGE. BY ADV. SRI.P.JACOB VARGHESE (SR.) SRI.VARUGHESE M EASO SRI.VIVEK VARGHESE P.J. SMT.NISHA JOHN SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH RESPONDENT(S): APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. M.V.NARAYANAN, AGED 78 YEARS, PENSIONER, S/O VELAYUDHAN, RESIDING AT SHANTI BHAVAN, MADAPPURAM HOUSE, KARATTUPALLYKARA, PERUMBAVOOR VILLAGE. 2. M.V.KRISHNAN, AGED 75 YEARS, PENSIONER, S/O VELAYUDHAN, MADAPPURAM HOUSE, KAVUMPURAM BHAGOM, AIMURY KARA, KOOVAPPADY VILLAGE. 3. M.V.RAMAN, AGED 72 YEARS, PENSIONER, S/O VELAYUDHAN, MADAPPURAM HOUSE, KAVUMPURAM BHAGOM, AIMURY KARA, KOOVAPPADY VILLAGE. 4. LAKSHMI, AGED 70 YEARS, PENSIONER, D/O SUGATHAN, MANNALIVEETIL, KARATTUPALLI KARA, PERUMBAVOOR VILLAGE. 5. M.V.PARAMU, AGED 68 YEARS, COMPANY EMPLOYEE, S/O VELAYUDHAN, MADAPPURAM VEETTIL, KARATTUPALLI KARA, PERUMBAVOOR VILLAGE. 6. M.V.PADMANABHAN, AGED 66 YEARS, S/O VELAYUDHAN, MADAPPURAM VEETTIL, KARATTUPALLI KARA, PERUMBAVOOR VILLAGE. 7. M.V.KUMARAN, AGED 65 YEARS, S/O VELAYUDHAN, MADAPPURAM VEEDU, KAVUMPURAM BHAGOM, AIMURY KARA, KOOVAPPADY VILLAGE. 8. M.V.VELAPPAN, AGED 61 YEARS, S/O VELAYUDHAN, TEACHER, MADAPPURAM VEETTIL, KARATTUPALLY KARA, PERUMBAVOOR VILLAGE. 9. M.V.RAGHAVAN, AGED 58 YEARS, S/O VELAYUDHAN, TEACHER, MADAPPURAM VEETTIL, KAVUMPURAM KARA, PERUMBAVOOR VILLAGE. 10. M.V.GANGADHARAN, AGED 55 YEARS, AGRICULTURIST, S/O VELAYUDHAN, MADAPPURAM VEETTIL, KAVUMPURAM BHAGOM, AIMURY KARA, KOOVAPPADY VILLAGE. 11. VIJAYAN, AGED 45 YEARS, D/O DAMODARAN, CHATHURAKULAM VEEDU, THATHAPPILLY, MANNAM P.O., NORTH PARAVOOR. 12. SHANMUGHAN, AGED 40 YEARS, S/O -DO- -DO- 13. SAJEEVAN, AGED 37 YEARS, S/O -DO- -DO-. 14. SHIBA, AGED 35 YEARS, W/O SIVARAJAN, VADAKKEKARA HOUSE, MALAYATTOR P.O. ADV. SRI.G.RAJAGOPAL FOR R.1 TO 14 SRI.THOMAS M.JACOB FOR R.1 TO 14 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.0. NO. 1 OF 2008 = = = = = = = = = = = = = = = Dated this the 29th day of September, 2008. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, Perumbavoor in A.S.28/07. The said appeal was preferred against the judgment of the Munsiff, Perumbavoor in O.S.648/98. By the said judgment and decree the trial Judge granted a decree for fixation of boundary as well as for permanent prohibitory injunction. The appellate court had reversed the same and remanded the case for fresh disposal. It is against that judgment the plaintiff has come up with this FAO. 2. There cannot be any dispute that as the suit stands today it is one for fixation of boundary and permanent prohibitory injunction. The plaintiffs and defendants are claiming right over their respective properties only by virtue of a common document namely a partition deed 3729 of 1119 M.E. The father of the 2nd plaintiff obtained a total extent of one acre and 46 cents of property in Sy.No.35/6 F.A.O. 1 OF 2008 -:2:- (35/11) as per the B schedule to the said document. The father of the defendants had also obtained property by virtue of A schedule to the document having a total extent of 2 acres 91 cents(subject to the real extent shown in the document). The said document is produced and marked as Ext.A1. There had been subsequent transaction with respect to these properties and the plaintiff is claiming right over the plaint schedule property. In order to determine which is the boundary of the plaint schedule property it is necessary to measure the property covered by A and B schedule of Ext.A1. So when it is measured in accordance with the document of title namely Ext.A1 the properties obtained by the predecessor of the plaintiff as well as the predecessor of the defendant can be easily marked. After marking the same the other transactions that had gone into can also be taken into consideration and the properties covered by those transactions also can be separately marked. It is also necessary for the reason that if the property in one of the transferred document is more than what is shown therein it F.A.O. 1 OF 2008 -:3:- will have a direct impact on the result of the suit. So it is a sinequa non to have determined the A and B schedule property under Ext.A1 for a proper determination of the case. The Commissioner when examined had also clearly admitted that in order to understand whether the parties are having their respective properties the properties of the plaintiffs and defendants have to be measured. So unless it is done there cannot be a resolution of the dispute. 3. The next question is with respect to the plea of adverse possession and limitation raised by the defendants in response to the plaint averments which contains a prayer that in case of defendants being in possession the plaintiff will be taking steps to get that prayer added by amendment of the plaint. If the defendants are found to be in possession of the property then the colour of right under which they are holding that property will be necessary and if they are entitled to perfect their possession by adverse possession necessarily they will get title to the property and therefore the fixation of boundary may not be possible. Therefore, F.A.O. 1 OF 2008 -:4:- when a situation arises from the materials available after demarcating the properties with respect to title deeds that the defendants are in possession of the property then the plaintiffs must be given liberty to amend the plaint seeking for a relief which can be met by the defendants in the form of additional pleadings and raising of issues. Therefore the right to have that larger relief is also reserved in favour of the plaintiff. When the question of adverse possession and limitation arises it goes without saying that all the necessary ingredients and the law on the subject has to be looked into for a final decision on the matter. 4. Lastly, it is seen that the parties are fighting and frequenting corridors of not only of the Courts but also of the police station. This Court by an order dated 11.4.08 had directed the parties to maintain the status quo as on that date. Let that order continue till the final disposal of the matter and if there is any variation or difference between the parties, then the parties are directed to approach the trial court for appropriate orders and not to approach the police F.A.O. 1 OF 2008 -:5:- station to decide the question of civil dispute. But I make it clear that when there is a fight which attract a criminal case it can be separately dealt with. I earnestly and sincerely hope that the parties will not create such situation till the final disposal of the case. 5. Finally, considering the nature of dispute going on between the parties I direct the learned Munsiff to address the District Collector intimating him about the directions of this Court to have a Commissioner's plan and the work done with the assistance of Taluk Surveyor as expeditiously as possible on the request from the Commissioner to provide surveyor's assistance, at the earliest so that the dispute can be finally resolved without protraction. After receipt of the Commissioner's plan and report the parties are permitted to file objections, adduce evidence and in case of necessity amendment of the plaint, filing of additional written statement etc. thereafter permit the parties to adduce evidence, if additionally necessary, and then dispose of the matter in accordance with law and the matter be disposed of. F.A.O. 1 OF 2008 -:6:- If there is no posting date, the Court may give notice to the counsel appearing for both sides fixing the date of appearance for further action as directed by this Court as well as by the appellate court. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-