IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 FAO.No. 105 of 2007() --------------------- AS.245/2004 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.65/1995 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/RESPONDENTS/DEFENDANTS ----------------------------------------------------- 1. SUMATHY AMMA, AGED 70 YEARS, D/O ACHUTHAN PILLAI, ALADY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE. 2. MADHAVAN NAIR @ PRAKASH, AGED 48 YEARS, S/O SUMATHY AMMA, ALADY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE. BY ADV. SRI.G.RAJAGOPAL SRI.THOMAS M.JACOB RESPONDENT/ APPELLANT/PLAINTIFF ---------------------------------- THANKAPPAN NAIR, AGED 71 YEARS, S/O ACHUTHAN PILLAI, ALADY HOUSE, IRINGOLE KARA, PERUMBAVOOR. ADV. SRI.DINESH R.SHENOY SRI.V.V.UNNIKRISHNAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA.NO. 1209/07 IN FAO 105/07 DISMISSED 1/4/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO.105 OF 2007 ------------------------------------------ Dated 1st April 2009 JUDGMENT Defendants in O.S.65/1995 on the file of Munsiff court, Perumbavoor who are respondents in A.S.245/2004 on the file of Additional District court, North Paravur are the appellants. They are challenging the order of remand passed by Additional District Judge in A.S.245/2004. Respondent is the plaintiff who is sole appellant in the first appeal. Suit was filed for declaration of title and injunction. Learned Munsiff on the evidence dismissed the suit holding that respondent did not establish his title to the plaint schedule property. It was challenged before the Additional District court in A.S.245/2004. Learned Additional District Judge on hearing the appeal found that respondent/plaintiff and appellants/defendants are claiming right under the very same Ext.A1 partition deed and the dispute is whether the disputed portion falls part of the property allotted to the appellants or respondent. It FAO 105/07 2 was found that identification of the property by the Commissioner was not proper and therefore, it is necessary to identify the property. The suit was remanded after setting aside the decree and judgment of trial court. It is challenged in this appeal. 2. Learned counsel appearing for appellants and respondent were heard. 3. Argument of the learned counsel appearing for appellants is that though the order of remand is justifiable, the directions in the order of remand is illegal and therefore those directions are to be set aside. Learned counsel appearing for respondent submitted that proper identification of the property is necessary and in such circumstances order of remand is perfectly correct and warrants no interference. 4. On going through the judgment of the first appellate court, it is seen that some mistakes have been committed by the learned Additional District Judge regarding the facts. Exts.A2 and A3 are stated as documents executed by the respondent when in fact they are documents executed by the appellants in favour of respondent. So also plaint schedule property is not the remaining property excluding Exts.A2 and A3 as stated by the learned District Judge. Similarly, extent of the FAO 105/07 3 property covered under Exts.B1 to B5 is not exactly 80.012 cents. 5. Actual dispute between the parties is whether plaint schedule property, which is the disputed property, forms part of the property allotted to the respondent as D schedule to Ext.A1 or allotted to appellants as I schedule to Ext.A1. It is also admitted case that out of the properties allotted to the respondent under schedule D of Ext.A1 properties covered under Exts.B1 to B5 were alienated. So also, PW1 deposed that 10 cents was given to kudikidappu. Learned counsel appearing for respondent submitted that that 10 cents was given only subsequently. Whatever it be, it is not very relevant at this stage. So also out of the properties obtained by the appellants as I schedule of Ext.A1 partition deed, properties covered under Exts.A2 and A3 portions were alienated. Therefore, the question whether disputed plaint schedule property belongs to the appellants or the respondent could finally be resolved only after proper identification of the properties. The Commissioner appointed by the trial court did not identify the properties with reference to Ext.A1 partition deed. In such circumstances, order of remand warrants no interference. FAO 105/07 4 6. Grievance of the learned counsel appearing for appellants is only regarding the directions given by the appellate court. On hearing the counsel on both sides following directions are issued. The Commissioner is to identify the properties allotted to the respondent under D schedule to Ext.A1 property as well as to the appellants under I schedule therein. Commissioner is to demarcate the properties alienated by the respective parties. Commissioner to identify and report whether plaint schedule property forms part of D schedule property or I schedule property of Ext.A1. The appeal is dismissed with said direction. Learned counsel appearing for appellants submitted that subsequent to the order of remand Commissioner has submitted a report. If the Commissioner has identified the property as directed in this judgment, no further identification is necessary and if not, identification is a must. M.SASIDHARAN NAMBIAR, JUDGE. uj.