IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 FAO.No. 97 of 2007() ------------------------------ AS.10/2001 of SUB COURT,NEYYATTINKARA OS.553/1993 of PRL.MUNSIFF COURT,NEYYATTINKARA .................... APPELLANT (S)/ RESPONDENT/DEFENDANT ------------------------ KRISHNA PILLAI KOCHUKRISHNAN NAIR, PRASANTH BHAVAN, AYIRAYIL DESOM, KARODE VILLAGE. BY ADVS.MR.SATHISH NINAN MR.SANTHOSH MATHEW SMT.R.BINDU RESPONDENT(S): APPELLANT/PLAINTIFF -------------------------- VELAYUDHAN PILLAI KRISHNAN NAIR, AMBUJAVILASOM BUNGLOW, AYIRAYIL DESOM, KARODE VILLAGE. R1 BY ADVS.MR.L.MOHANAN, SMT.LIGEY ANTONY, RIXAN MOHAN.M.V. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16/09/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N.KRISHNAN, J. ........................................... F.A.O.NO.97 OF 2007 ............................................. Dated this the 16th day of September, 2009 J U D G M E N T This is an appeal preferred against the order of remand passed by the learned Additional Subordinate Judge, Neyyattinkara in A.S.No.10/2001. The said appeal was preferred against the dismissal of O.S.No.553/1993 of the Munsiff Court, Neyyattinkara. The suit originally was filed for declaration and fixation of the boundary. Subsequently during the pendency of the suit, it has been converted into recovery of possession on the strength of the title also. 2. The brief facts necessary for the disposal of the appeal are stated as follows: A total extent of 69 cents was the subject matter of a partition deed - Ext.A1 dated 9.4.1965. There were large number of parties to the partition deed and as per the partition deed H schedule - 17 1/4 cents described therein was set apart to the share of the plaintiff. Another 17 ¼ cents was set apart to the share of Sulochanan Nair as J-schedule who is the brother of the plaintiff. The said Sulochanan Nair in turn executed Ext.B2 : 2 : F.A.O.NO.97 OF 2007 assignment deed in favour of the defendant on 5.11.1986 conveying an extent of 23 cents of property. Now it is the case of the plaintiff that the defendant with the help and aid of Ext.B2 document attempted to trespass into the portion of the plaint schedule property. Later, succeeded in doing so during the pendency of the suit and therefore has sought the main prayers for declaration of title, fixation of boundaries and recovery of possession of the trespassed property. The contention of the defendant is that as per the partition deed though the extent shown is 17 ¼ cents with respect to H schedule of the property, actually it did not have that much extent of property and the property was really demarcated by putting up a bund at the time of partition which will decide the issue or in other words the contention of the defendant is that it is the boundary that will prevail and not the extent as shown in the document. 3. At the outset it has to be stated that when there is a dispute with respect to the description, extent, survey number and measurement of the property, the least fallible method is to be adopted in determining the correctness of : 3 : F.A.O.NO.97 OF 2007 the property. There may be cases where the measurement will prevail. But it is equally well settled principle that when there is a discrepancy between the description and measurement of the property, the boundary will prevail. All depends upon the facts and circumstances of each case. Now in order to properly resolve this case, one has to first ascertain 69 cents of property which is involved in Ext.A1 partition deed. It can be done by various methods such as taking the extent of the property described in the document and demarcating it. It can be also identified and fixed by taking into consideration the boundaries prevailing in the property. If there are any other guidelines which can point out to find out and resolve the dispute, that also can be done. Then it is for the court to decide depending upon the materials available, evidence adduced and the evidence to be adduced which will prevail. I have also to state that, in this particular case since the entire extent of 69 cents of property is to be identified, it may be only proper and appropriate to implead the other parties who have obtained the property under the partition deed. It can be : 4 : F.A.O.NO.97 OF 2007 done so especially for the reason that the suit is one for fixing of the boundary as well. Therefore though I am not interfering with the order of remand as such, I clarify and dispose of the appeal with the following direction: 1. The plaintiff is at liberty to implead the other sharers who had obtained portions of the property from the extent of 69 cents. 2. The Trial court can issue a Commission or if possible remit the Commission to the very same Commissioner, if he is available for the purpose of fixation of the boundary. 3. The Commissioner can identify the properties by resorting to the extent shown in the document. 4. The Commissioner shall also demarcate the property with respect to the boundaries available in the property and the Commissioner shall take special care to see and report the age of the said boundaries which are in existence in the property. 5. It is made clear that if the old Commissioner is not available, the present Commissioner has to take note of the : 5 : F.A.O.NO.97 OF 2007 report and plan available in the case records. The Commissioner can also note the additional particulars with the parties by filing separate work memos require. 6. Thereafter the parties be permitted to file objection, if any, to the Commissioner's plan and report and then allow them to adduce both documentary as well as oral evidence in support of their respective contentions and decide the question in accordance with law which will prevail in order to identify, demarcate and determine the property in question. The parties are directed to appear before the court below on 10.11.2009. The F.A.O is disposed of accordingly. M.N.KRISHNAN, JUDGE cl