IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 FAO.No. 375 of 2010() --------------------- AS.74/2009 of SUB COURT, PERUMBAVOOR OS.341/2005 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- CHACKO @ CHAKKAPPAN, AGED 59 YEARS, S/O.UTHUPPU, THAZHATHEDATHU HOUSE, KUNNACKAL.P.O., KUNNACKAL KARA, MARADY VILLAGE, MUVATTUPUZHA TALUK ERNAKULAM DISTRICT, PIN-682 316. BY ADV. SRI.G.RAJAGOPAL RESPONDENT/RESPONDENT/DEFENDANT ------------------------------------------------------------- PETER, AGED 61 YEARS,S/O.POULOSE, VALETH HOUSE, R/AT A-2 APARTMENT, 3RD FLOOR, WATCH MANARE FLAT NO.27, MAIN ROAD, KAZTHOORBA NAGAR, ADAYAR, CHENNAI, REP.BY AUTHOIRSED AGENT A.V. ABRAHAM, AGED 71 YEARS, S/O.VARKEY,IKKARAKUDY HOUSE, R/AT T.B.ROAD,PERUMBAVOOR KARA & VILLAGE. BY ADV. SRI.S.VINOD BHAT THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/09/2011, ALONG WITH FAO NO. 376 OF 2010 & FAO NO. 377 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK P. BHAVADASAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - F.A.O. Nos. 375, 376 &377 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of September, 2011 J U D G M E N T Three appeals arise out of two suits namely O.S Nos. 298/2005 and 341/2005. O.S No.298/2005 was treated as the leading case and hence the facts hereinafter referred to are as available in the said suit. 2. O.S No.298/2005 was a suit for injunction. The plaintiff claimed to have obtained the plaint A schedule property by virtue of sale deed namely Ext.A1. He claimed that the property comprised in Survey No.353/2 and Re-survey No. 353/14. According to the plaintiff the said properties were mortgaged to the KSIDC. The property obtained by defendant is shown as plaint B schedule property and they obtained it as per B1 and B2. Thereafter it is narrated that the defendant managed to get a correction deed executed and to the correction deed the defendant attempted to lay claim to a portion of the plaint A schedule property. Plaintiff claims that there are three roads leading to the said property. In the correction deed obtained by the defendant, it is pointed out F.A O NO.375, 376 & 377/2010. : 2 : that the old survey number was not shown deliberately. According to the plaintiff, the defendant has property only in survey No.212/1A/1 and survey No.354/14. He therefore, pointed out that the defendant have no manner of right for any extent of property in survey no 353/14. Alleging that the defendant is trying to tress pass into A schedule property, the suit was laid. 2. The defendant resisted the suit. He claims that earlier he obtained title and possession over a portion of 20.23 Ares in re survey No.353/14 on the basis of document No.3211/04 of S.R.O. Puthencruz and correction deed No.5196, i.e., B1 and B2. He pointed out that there was an error in re-survey number shown and that was got corrected by a subsequent deed. He would even contend that the plaintiff has instituted the suit with ulterior motive of appropriating his property taking advantage of the inadvertent mistake shown in survey numbers. He pointed out that the plaintiff has no right over any portion of the property obtained as per B1 and B2. 3. The defendant in O.S No.298/2005 in turn filed O.S F.A O NO.375, 376 & 377/2010. : 3 : No.341/2005 for fixation of boundary and prohibitory injunction. The allegation in the plaint are similar to the contentions in the written statement in O.S No.298/2005 and hence not being referred to. The suit was resisted by the defendant in the statement by taking contentions of O.S No.298/2005. 4. On the basis of the above pleadings the issues where raised by the trial court. The evidence consists of testimony of PWs 1 and 2 and documents marked as Exts.A1 to A9 on the side of plaintiff. On the defendant side DW 1 was examined and Exts.B1 to B10 marked. Exts.C1, C1(a), C2, C2(a), C3, C3 (a) are the reports prepared by the Commission. X1, X2, X3 are 3rd party exhibits. On an appreciation of the evidence of the case the Trial Court came to the conclusion that the plaintiff in O.S No.298/2005 was not successful in establishing his case and dismissed the suit. O.S 341/2005 was partly decreed. The plaintiff aggrieved by the judgment and decree in O.S No.298 of 2005 preferred A.S NO. 76/2009 and he also preferred A.S No.37/09 from that portion of the decree which went against him in O.S No.341/2005. The plaintiff in O.S F.A O NO.375, 376 & 377/2010. : 4 : No.341/2005 preferred A.S No. 74/2009 against that portion of decree partially denied relief to him. All the three appeals were heard jointly and were disposed of by a common judgment. The lower appellate court came to the conclusion that there was no proper identification of properties which was essential for determination of the issues involved in the suit and hence thought it fit to remand the case to the lower court with a direction to get the properties identified with reference to the old survey number and with respect to the document of title of the defendant. It is in that order that is challenged in these appeals by the defendant in O.S No.298/2005. 5. The learned counsel appearing for the appellant pointed out that the documents of title of the plaintiff take the extent of properties shown by him and that claim of the plaintiff that the defendant in O.S No. 298/2005 has no property in survey No. 754/14 cannot be countenanced. The plaintiff was trying to take advantage of an inadvertent error in the document of the defendant which was later got corrected in accordance with law. The learned counsel also F.A O NO.375, 376 & 377/2010. : 5 : pointed out that even assuming that there was some doubt regarding the identification of the properties it only appropriate that the lower appellate court directs the court below to have the properties identified with reference to the old survey number and also with reference to the documents of title of both the parties so that there will not be any difficulty in resolving the issue involved in the suit. Both the parties have disputes regarding the extent of properties as well as the survey number in which properties are comprised. The main grievance pointed out by the learned counsel for the appellant is that the lower appellate court should have directed the identification of properties with reference to the document of title of the defendant without noticing that the contentions of the defendant that the plaintiff does not have the extent of properties as shown in the plaint going by his documents. 6. The learned counsel for the respondents pointed out that it is absolutely necessary that the properties have to be properly identified in order to resolve the controversy involved in the suit. The learned counsel pointed out that the F.A O NO.375, 376 & 377/2010. : 6 : fact that the defendant had property in Survey Number 212/1A/3 corresponding to re-survey No. 354/14. This had persuaded the court below to take the view that there are no proper identification. 7. The dispute is mainly regarding the properties in survey No.353/14. While the plaintiff in O.S No.298/2005 would say that the defendant had no property in re-survey No. 353/14 the defendant would claim otherwise. The defendant would point out that the plaintiff has taken advantage of inadvertent mistake made by the authority while noting re- survey number. Whatever that be, the issue involved in the case is with respect to the properties covered by the documents of title of both the parties with regard to the old survey number and corresponding re-survey number. One cannot omit to note that the defendant has a case that taking advantage of an inadvertent mistake in the survey number, the plaintiff is trying to usurp the property which belonged to him. In the nature of allegations and contentions it is evident that proper identification of the respective properties is highly essential for the determination of the respective claims of the F.A O NO.375, 376 & 377/2010. : 7 : parties. It is only just and fair that the trial court be directed to issue a commission to identify the properties with respect to the documents of title and old survey numbers and re-survey numbers with the help of a Surveyor, so that a proper report and plan can be obtained to resolve the issues involved in the 2 suits. In the result these appeals are disposed of with a direction to the trial court to have the properties identified with respect to the title deeds of both the parties and with respect to the old survey plan as well as the re-survey plans. Parties will be at liberty to adduce further evidence if they so chose. Trial court may make every endeavor to dispose of the suits as expeditiously as possible, at any rate, within six months from the date of obtaining the commission report. Sd/- (P. BHAVADASAN, JUDGE) jma //true copy// P.A to Judge