IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 FAO.No. 176 of 2008() ------------------------------- AS.36/2007 of III ADDL. DISTRICT COURT, KOLLAM OS.254/2002 of J.M.F.C. - I, KARUNAGAPPALLY .................... APPELLANT(S)/ APPELLANTS IN AS. 36/2007/DEFENDANTS IN OS. 254/2002. ------------------------- 1. KUTTAN PILLAI, S/O.MANIKUTTY, AGED 72 YEARS, RADHALAYAM, PARAYAKADAVUTHURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK. 2. LEKSHMIKUTTY RADHA, W/O.KUTTAN PILLAI, AGED 64 YEARS, RADHALAYAM, PARAYAKADAVUTHURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK. BY ADVS.MR.P.GOPAKUMARAN NAIR MR.C.S.DIAS MR.ADDEEP ANWAR RESPONDENT(S): PLAINTIFF ------------------------ UPENDRAN, S/O.SREEDHARAN, AGED 56 YEARS, KOCHARAYASSERIL VEEDU, PARAYAKADAVUTHURA, ALAPPAD VILLAGE, KARUNAGAPPALLY TALUK. R1 BY ADVS.DR.K.P.SATHEESAN, MR.K.K.GOPINATHAN NAIR, MR.M.R.JAYAPRASAD, MR.P.MOHANDAS (ERNAKULAM). THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2892/2008 IN FAO NO.176/2008 DISMISSED 07/10/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 176 OF 2008 = = = = = = = = = = = = = = = Dated this the 7th day of October, 2009. J U D G M E N T After hearing the learned counsel for the both sides this court finds that there is absolute necessity for obtaining a plan and report for a proper identification of the property with respect to A to C schedule properties described in the plaint. The said identification be done with reference to the title deeds of the parties or other materials which the party may furnish before court. When such is the situation the lower appellate court should not have observed that the finding on possession of plaint A and B schedule properties rendered already in favour of the plaintiff by the lower court and accepted in appeal shall be subject to the acceptability of the plan and report of the Advocate Commissioner to be submitted based on title deeds of parties and Ext.A2 compromise petition. So if really the Court was convinced about everything then there was no necessity for a remand to identify the property with respect to the title deeds as well F.A.O. 176 OF 2008 -:2:- as Ext.A2 compromise petition. So what is really required is a fresh consideration of the entire matter basing upon the documents relied upon by the parties on the Commissioner's plan and report which is bound to be produced before Court. Necessarily parties have to be permitted to adduce both documentary as well as oral evidence in support of their respective contentions and the matter be disposed of in accordance with law. The question of possession can also be a subject matter of consideration by the trial court after the property is properly identified. So any observations in contravention to this shall not affect the right of any parties and therefore I vacate the order of the learned District Judge making some observations on the plaint A and B schedule properties and the possession. The parties are directed to appear before the Court below on 11.11.2009. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-