IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 FAO.No. 208 of 2008() ------------------------------ AS.96/2006 OF SUB COURT, PALA OS.128/2003 OF MUNSIFF COURT, PALA .................... APPELLANT/2ND RESPONDENT/2ND DEFENDANT ------------------------------------------------------------------------ SCARIA @ APPACHAN, S/O. OUSEPH, AGED 45 YEARS, RESIDING AT PALAKIEL HOUSE, KUDAKKACHIRA KARA, VALLICHIRA VILLAGE, MEENCHIL TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENTS/ APPELLANTS-RESPONDENTS 1, 3 AND 4/PLAINTIFFS- DEFENDANTS 1, 3 AND 4 ----------------------------------------------------------------------------------------------------- 1. FR.ZACHARIAS VELLOPPILLY,S/O.SCARIA, AGED 75 YEARS,PALAKEIL (H),PRIEST (HOUSE),KARUVANCHAL P.O, ALAKODE,KANNOOR DIST.REP.BY POWER OF ATTORNEY HOLDER LEELAMMA MATHEW JOSEPH,W/O.LATE MATHEW JOSEPH,AGED 55 YEARS, MALIKKAL (HOUSE) KANJIRAMATTOM P.O,CHENGALAM EAST VILLAGE,KOTTAYAM TALUK. 2. VARKEY,S/O.SCARIA,AGD 73 YEARS,PALAKEIL (HOUSE) NOW RESIDING AT VELLOPPILLY,MULLANKOLY,PADICHIRA VILLAGE, BATHERI TALUK,WAYANADU DIST.REP.BY POWR OF ATTORNEY HOLDER LEELAMMA MATHEW JOSEPH,W/O.LATE MATHEW JOSEPH, AGED 55 YEARS,MALIKKAL HOUSE,KANJIRAMATTOM P.O CHENGALAM EAST VILLAGE,KOTTAYAM TALUK. 3. OUSEPH @ PAPPACHAN, S/O. SCARIA, AGED 82 YEARS, PALAKIEL HOUSE, KUDAKKACHIRA KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK 4. JOSE, S/O. OUSEPH, AGED ABOUT 40 YEARS PALAKIEL HOUSE, KUDDAKKACHIRA KARA, VALLICHIRA VILLAGE, MENACHIL TALUK. 5. DEVASIA, S/O. OUSEPH, AGED 40 YEARS, PALAKIEL HOUSE, KUDDAKKACHIRA KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 19/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. NO.208/2008 ORDER ON I.A. NO.3442/2005 IN FAO. NO.208/2008 DISMISSED 19/08/2008. SD/- M.N.KARISHNAN, JUDGE // TRUE COPY // P.A. TO JUDGE Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 208 OF 2008 = = = = = = = = = = = = = = = Dated this the 19th day of August, 2008. J U D G M E N T This appeal is preferred against the judgment of the Subordinate Judge, Pala in A.S.96/06. By the said judgment the appellate court remanded the case after setting aside the judgment of the trial court. The learned counsel for the appellant very strongly contends before me that the order of remand passed by the appellate court is not justifiable for the reason that the plaintiffs did not move their little finger to get the properties identified. When such is the attitude of the plaintiffs it is argued that the appellate court should not have remitted the matter back to the Court for identifying the property. 2. It has to be remembered that the suit is between two brothers on one side as plaintiffs and one brother and his children as defendants. The property belonged to father of the plaintiffs and first defendant. It is the case of the plaintiffs that by virtue of two documents 3062/61 and F.A.O. 208 OF 2008 -:2:- 3646/62 they have obtained two acres and 83 cents respectively. At the same breadth they would contend that the plaint schedule property is having an extent of 1 hectare 35 ares and 30 sq.mts. It has to be stated that the plaintiffs are not claiming property under any other document. It is the case of the first defendant that he also obtained some property as per document No.3646/62. According to him even at the time of his father's life he was in possession of the entire property. 3. Now there are two schedules in the plaint which is described as A schedule and B schedule. A schedule is having an extent of one hectare 35 ares and 30 sq.mts. and B schedule is the property which is now alleged to be in possession of the defendants which according to the plaintiffs forms part and parcel of A schedule over which they have got title and possession. On the other hand the defendant would contend that the entire property is in their possession and therefore the plaintiff is not entitled to any relief. The defendant did not stop there. The 2nd defendant filed a counter claim also contending that the right of the plaintiff if any is barred by adverse possession and limitation. F.A.O. 208 OF 2008 -:3:- 4. At the out set I may like to point out, when a person pleads adverse possession and limitation, of course, it can be as an alternative remedy but the moment it is pressed into service it implies he admits the title of the other person. So, here is a case where one has to find out, (1) Whether the plaintiff has got title to and possession over A schedule property and whether B schedule forms part of A schedule? (2) Whether the 2nd defendant had perfected title to the property by adverse possession and limitation as contended by him? 5. The whole complication in the case is because of the difference in extent. The total extent as per the document would come to 2 acres and 83 cents whereas the plaint A schedule property takes in a larger extent. So the appellate Court felt, for a proper disposal of the matter it is absolutely necessary to identify the property of the plaintiffs and defendants with respect to their respective title deeds and then decide the question of title and adverse possession. I think it is the only feasible and practical approach a Court can adopt. It is true that there has been laches on the part F.A.O. 208 OF 2008 -:4:- of the plaintiff. But, most probably, the appellate court felt that to meet the ends of justice it is necessary to give an opportunity. Since there is a counter claim also wherein the defendant is having the status of a plaintiff I think there is equal burden on both sides to establish their rival titles. So, the only possible method is as stated by the appellate court. Therefore I do not find any illegality or irregularity which warrants interference and hence the appeal is devoid of merits and it is dismissed. There is no substantial question of law also. I make it clear that any observations made in this judgment shall not be taken as a ground for deciding the case by the trial court. M.N. KRISHNAN, JUDGE. ul/-