IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 25TH NOVEMBER 2009 / 4TH AGRAHAYANA 1931 FAO.No. 205 of 2007() --------------------- AS.73/1999 of SUB COURT,NEYYATTINKARA OS.695/1994 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANTS/RESPONDENTS 1 TO 5 ------------------------------------------------- 1. KAMALAKSHY VIJAYAMMA, ERECHILAVANKOTTU KIZHAKKUMKARA PADAMAVILASOM VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 2. SREEDHARA PANICKER MOHANDAS, SIVANANDAVILASATHU VEEDU, CHEMBANACODE, PARACHAL MURI, KULATHUMMAL VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT. 3. VIJAYAMMAL GEETHAKUMARI, -DO- -DO-. 4. RAMANKUTTY PADMAKUMAR, ERECHILAVANKOTTU KIZHAKKUMKARA PADMAVILASOM VEEDU, MARANALLOOR DESOM, MARANALLOOR VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 5. KUMARI SHEELA, DAUGHTER OF VIJAYAMMA, -DO- -DO-. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): APPELLANTS & 6TH RESPONDENT ------------------------------------------ 1. KOCHAPPI CHELLAPPAN, CHILAVAKOTTU PARANKIMAMVILA VEEDU, MARANALLOOR DESOM, DO. VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. KALU SARASAMMA, -DO- -DO-. 3. SARASAMMA SREEKUMARI, -DO- -DO-. 4. PRABHAKARAN, -DO- -DO-. ADV. SRI.DINESH MATHEW J.MURICKEN FOR R1-3 SRI.P.V.BALAKRISHNAN FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT APPELLANTS SEEK FOR AN ADJOURNMENT. I AM NOT INCLINED TO GRANT ADJOURNMENT. THE APPEAL IS DISMISSED FOR DEFAULT. 25.11.2009. SD/= M.N. KRISHNAN, JUDGE ORDER ON I.A.NO.2569/2007 IN FAO 205/2007 DISMISSED 25..11.2009. SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A. TO JUDGE. M.N. KRISHNAN, J. ........................................... F.A.O.No. 205 OF 2007 ............................................. Dated this the 18th day of December, 2009 J U D G M E N T This is an appeal preferred against the order of remand in A.S.No.73/1999 of Sub Court, Neyyattinkara. The said appeal was preferred against the judgment and decree of the1st Additional Munsiff Court, Neyyattinkara in O.S.No.695/1994. The suit is one for declaration of title, possession and for fixation of boundary. The brief facts would reveal that the plaintiffs as well as the defendants are claiming property under a basic document-Ext.A5 which is a partition deed. The plaint schedule property is having an extent of 1 acre and 12 cents by virtue of Ext.A1 sale deed No.1128/72 which was executed by one Kamalamma and others in favour of the plaintiffs. As per the original anterior document namely the partition deed, the defendants are shown to have an extent of 1 acre 80 cents of property. In order to resolve the dispute between the parties, it has to be found with respect to Ext.A5 what is the property that is described in Ext.A1 and which is the property that is set apart to the share claimed by the defendants. If the property : 2 : F.A.O.No. 205 OF 2007 with reference to Ext.A5 can be properly identified and located, then it will clinch the issue regarding title to the property as well as separating boundary line between two properties. Only when it is found that though the plaintiffs' document takes in that portion of the property, but it is found to be in the possession of the defendants, then whether that right of the plaintiffs is lost by adverse possession and limitation may arises for consideration. The Commissioner had inspected the property and had submitted a report. The learned counsel for the appellant had produced for perusal the plan as well as Commissioner's report. In the plan, the Commissioner identified the property covered by Ext.A1 as well as the property allotted to the defendants under Ext.A5. He also demarcated the transfer made by the defendants in favour of the defendants 3 and 4 and on a perusal of the same, the Commissioner had shown the property of the plaintiffs as ABCDEFGHI and that of the defendants as CDJKLMNOPQRSTUVWXEFA1A2. But it would be seen that though the extended property of entitlement is only 1 ares and 80 cents, it is having an extent of 2 acres : 3 : F.A.O.No. 205 OF 2007 and 41 cents on the basis of the document, if the property is identified as EDJKLMNORSTUVW having an extent of 1 acre and 80 cents. But, a perusal of the Commissioner's report would not reveal how the Commissioner had arrived at this and what is the methodology or criteria adopted by the Commissioner to demarcate the property in this way. 2. Therefore the matter requires reconsideration. The whole dispute can be resolved only by demarcating the property covered by Ext.A1 and the property claimed by the defendants under Ext.A5. But it has also to be remembered that Ext.A1 property is also allotted as an item under Ext.A5 and it is absolutely necessary to demarcate the properties claimed by the plaintiffs and defendants with respect to Ext.A5 for the reason that one cannot convey a better title than one had received. So, the identification of the property with respect to Ext.A5 is a must for a proper decision of the case. Let the matter be looked into that angle by the trial court and, if necessary, let the Commissioner's plan and report be remitted to give the details regarding the way in which demarcation has been : 4 : F.A.O.No. 205 OF 2007 done or if it is not done in that way, let it be done in that way and then permit the parties to adduce evidence in support of their respective contentions and thereafter dispose of the matter in accordance with law. Therefore, the order of remand does not suffer from any infirmity and the appeal is dismissed with the above observation. Being a very old suit of 1994, the trial court shall see that the matter be disposed of before the court closes for summer holidays in 2010. The parties are directed to appear before the trial court on 14.01.2010. M.N. KRISHNAN, JUDGE cl