IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 FAO.No. 158 of 2011() --------------------- AS.85/2003 of SUB COURT, TIRUR OS.86/2000 of MUNSIFF-MAGISTRATE'S COURT, PONNANI .................... APPELLANT/FIRST RESPONDENT/PLAINTIFF -------------------- JOUHAR ALI , AGED 46, S/O.RARAMKANDATH KUNHIMUHAMMED HAJI, THRIKANAPURAM AMSOMDESOM, PONNANI TALUK, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): /APPELLANTS & RESONDENTS 2 AND 3/DEFENDANTS --------------- 1. THE GENERAL SECRETARY,MUSLIM EDUCATIONAL SOCITY, M.E.S OFFICE, KOZHIKODE. 2. THE SECRETARY M.E.S COLLEGE OF ENGINEERING , THRIKKANAPURAM, PONNAI, TIRUR,MALAPPURAM DISTRICT. 3. CHERIYAMU, AGED 71 YEARS, D/O.PALATHINGAL CHOLAYIL MARAKKAR, THRIKKANAPURAM AMSOM DESOM, PONNAI TALUK,TIRUR, MALAPPURAM DISTRICT. 4. POOKKAYALAPPIL FATHIMA, AGED 56 YEARS W/O.PALATHINGAL CHOLAYIL CHERIYAMU, THRIKKANAPURAM AMSOM DESOM, PONNANI TALUK,TIRUR,MALAPPURAM DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25/07/2011, ALONG WITH FAO 159/2011, THE COURT ON THE SAME DAY DELIVRED THE FOLLOWING: P.BHAVADASAN, J. -------------------------------------------- F.A.O. Nos.158 & 159 of 2011 -------------------------------------------- Dated this the 25th day of July 2011 Judgment The plaintiff in OS No.86/00 before the Munsiff Magistrate's Court, Ponnani, is the appellant in both these cases. 2. OS No.86/00 was one for injunction. The plaintiff claimed right over the suit properties by virtue of Ext.A1 assignment deed dated 29.06.1987. He claims to own properties in Survey Nos.503/1 and 502/3. Plaint B schedule property is part of plaint A schedule property and it is stated that B schedule is on the southern portion of A schedule property and the same has a sloping surface. Alleging that the defendants are trying to trespass into the plaint schedule property, the suit was laid. 3. The defendants 1 and 2 resisted the suit by filing a written statement, pointing out that the suit has been filed, suppressing material facts before court and the true facts are not disclosed. It is pointed out that the property sold to the plaintiff and the property shown to the commissioner as plaint A FAO 158 & 159/11 2 schedule are different properties. According to them, the property of the plaintiff lies far away on the north from the property shown to the commissioner as plaint A schedule. They also pointed out that the properties belonging to them are comprised in RS No.527/1, 502/3, 527/2, 527/3 and 503/1 and that was assigned in favour of various assignees. The plaintiff could not establish identity of plaint A schedule property. On the above grounds, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A9 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B3 marked. Exts.C1 to C4 commissioner's report and plan were also marked. 5. The trial court, on an evaluation of the evidence in the case, came to the conclusion that the plaintiff has succeeded in establishing his possession over the suit properties and accordingly granted a decree in his favour. 6. The aggrieved defendants carried the matter in appeal. Defendants 1 and 2 filed AS No.72/03 and the other FAO 158 & 159/11 3 defendants filed AS No.85/03 before the Sub Court, Tirur. Both the appeals were jointly heard and disposed of by a common judgment. The appeals were allowed and the matter was remanded to the trial court for fresh consideration in the light of the observations made by the lower appellate court in its judgment. That brings the plaintiff before this court. 7. The learned counsel for the appellant pointed out that the lower appellate court was not justified in granting a decree especially when there was candid admission by PW1, which had been taken note of by the trial court and that has resulted in a judgment and decree in favour of the plaintiff. It is also contended that the defendants had no case that they had any property in Survey No.502/3 in which the property of the plaintiff was situate. At any rate, according to the learned counsel, the lower appellate court was in error in directing measurement of the property covered by the title deeds of both the parties, to determine the issue regarding possession of the plaintiff. According to the learned counsel, if the lower appellate court felt that the commissioner's report and plan were not helpful, it was only appropriate that the trial court be FAO 158 & 159/11 4 directed to have the property measured with respect to the documents of title of both the plaintiff and the defendants so that the title of the property could be established. It was not proper on the part of the lower appellate court to have directed measurement of the property owned by the plaintiff alone. 8. The learned counsel for the respondents took no objection to the suggestion made by the learned counsel for the appellant that the properties may be got measured with reference to the title deeds of the plaintiff and defendants. The trial court has in so many words, found that the plaint schedule property has been properly identified as described. But the lower appellate court has found that the commissioner's report is of no use and it is not helpful to resolve the real controversy. The real dispute was to determine the respective properties with reference to the title deeds of the respective parties. Instead, the commissioner located the plaint schedule property in an unscientific manner. The deposition of Commissioner, referred to by the lower appellate court would clearly show that the property has not been properly identified. However, the lower appellate court was not justified in confining the FAO 158 & 159/11 5 identification of the property with reference to the plaintiff's documents alone especially when the claim of the plaintiff was that the defendants own property adjacent to the property owned by him. 9. Since the commissioner's report already available is found to be absolutely of no use, it is necessary to obtain a proper commissioner's report and survey plan with the help of the Taluk Surveyor. The commissioner may be directed to identify the properties of both the parties with reference to the respective title deeds of both the plaintiff and the defendants so that there can be proper resolution of the dispute involved in the case. 10. It was brought to the notice of this court that after remand, the plaintiff had moved for an interim injunction restraining the defendants from carrying on any construction in the plaint schedule property till the disposal of the suit. The learned counsel for the respondents pointed out that a counter affidavit has been filed to the petition and the matter is posted for hearing. It is also pointed out that there is a direction by this court in a writ petition filed by the appellant that till the petition FAO 158 & 159/11 6 is finally heard, the status quo shall continue. It is ordered that the status quo order granted in the said writ petition shall be applicable in these cases also. 11. The trial court shall make every endeavour to dispose of the suit in accordance with what is stated above, as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before it. Subject to the above observations, the appeals are dismissed. No order as to costs. P.Bhavadasan, Judge sta FAO 158 & 159/11 7