IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 13TH JANUARY 2010 / 23TH POUSHA 1931 FAO.No. 230 of 2007() ---------------------------------- AS.9/2006 of SUB COURT, QUILANDY OS.147/2000 of MUNSIFF-MAGISTRATE COURT, PERAMBARA .................... APPELLANTS/RESPONDENTS/PLAINTIFFS 2 TO 4 ------------------------ 1. RAYAROTH GEETHA SURESH BABU,"SREESAM", VENGERI AMSOM,NEDUNGOTTUR DESOM,MALAPARAMBA, KOSHIKODE TALUK,BY P/A HOLDER RAMATH NARAYANAN NAMBIAR,S/O KUNHIRAMAN NAMBIAR, AGED 76 YEARS, RETD.DEPUTY DEVELOPMENT OFFICER, R/AT "SREESAM",NEDUNGOTTUR DESOM,MALAPARAMBA, KOZHIKODE TALUK. 2. VIPIN SURESH BABU, S/O LATE SURESH BABU, AGED 19 YEARS, RESIDING AT "SREESAM", NEDUNGOTTUR DESOM, MALAPARAMBA, KOZHIKODE TALUK. 3. ASWININ SURESH BABU, D/O. LATE SURESH BABU AGED 17 YEARS(MINOR) R/AT "SREESAM",NEDUNGOTTUR DESOM,MALAPARAMBA, KOZHIKODE TALUK,KOZHIKODE DT.,REP.BY GUARDIAN & MOTHER R.GEETHA SURESH BABU.(MINOR 3RD APPELLANT REP.BY HER MOTHER 1ST APPELLANT AND THE THEN MINOR 2ND APPELLANT HAVING ATTAINED MAJORITY). BY ADVS. MR.C.P.MOHAMMED NIAS MR.SRINATH GIRISH RESPONDENT(S): APPELLANT/DEFENDANT --------------------------- KIZHAKKE PERUVANTHIYIL MOOSA, S/O ABDULLA, AGED 50 YEARS, KAPPIYIL HOUSE, CHANGAROTH AMSOM, KANNATTIL DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT. BY ADVS. MR.PULIKOOL ABUBACKER MR.ZUBAIR PULIKKOOL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NOS. 2854 & 2855 /2007 IN FAO. NO.230/2007 DISMISSED 13/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... F.A.O.No.230 OF 2007 ............................................. Dated this the 13th day of January, 2010. J U D G M E N T This is an appeal preferred against the order of remand passed by the Subordinate Judge, Koyilandy in A.S.No.9/2006. It was an appeal preferred against the judgment and decree in O.S.No.147/2000 of the Munsiff- Magistrate, Perambra. The trial court decreed the suit and the appellate court set it aside and remanded the case back to the trial court for fresh consideration with a direction to identify the property and then decide the matter in accordance with law. It is against that decision, the plaintiffs have come up in appeal contending that there is no scope for remand in this case. 2. It is the case of the plaintiffs that the plaint schedule property had been purchased by virtue of Document No.3006/1986 and the plaintiffs are in possession of the property. On the contra, the defendant would contend that there was 7 acres and 40 cents of land out of which, he had : 2 : F.A.O.No.230 OF 2007 transferred 4 acres and now the plaintiffs are attempting to grab remainder of the property by putting up a boundary therein. 3. The learned counsel appearing for both sides had taken me through the Commissioner's report as well as the documents in the case. Unfortunately, this is a case where the land is unsurveyed at that point of time and there are no measurements to demarcate the property, but only an extent of the property is given. It is true that there are innumerable modes of identification of the property and it is the settled proposition of law that when there is discrepancy in the description, measurement etc of the properties, generally the boundary will prevail. It is also stated in some cases that the best method of identification is to adopt the least erroneous method so as to fix the property. The one defect that had arisen in this case, according to the defendants, is that the boundaries are interchanged. The Commissioner who had visited the property, submitted Ext.C4 report in which page-2 shows that southern boundary of the property is a road and not in the western side, as : 3 : F.A.O.No.230 OF 2007 shown in the document. He had arrived at such a decision only on inspection with the help of compus. It is also seen that no where the Commissioner had made any attempt to measure and demarcate the property to find out the extent of the property. As pointed out by the plaintiffs, he marked plot A as 4 acres and on the side of its, marked plot B as 3 acres and 40 cents which is shown as the property of the defendant. In order to fix where exactly the property of the plaintiffs and defendant lies, a measurement of the property with respect to the boundaries which is now available on the spot as well as with the boundaries mentioned in the document is necessary and it is for the court, thereafter on the materials produced before it, to ascertain which is the correct property and where does the boundary between the property lies. Therefore, there is necessity for identification of the property with respect to the title deed and other materials. 4. Therefore, I cannot disturb the finding of the learned Subordinate Judge in remanding the case back to the trial court. But, in order to have peace between the parties, it is : 4 : F.A.O.No.230 OF 2007 desirable to maintain the present boundary shown by the Commissioner in Ext.C3 report wherein the Commissioner has stated that there is no continuous boundary to demarcate plots A and B, there are glyricedia plants standing in rows in that particular area. Let the properties be enjoyed on the side of these glyricedia plants respectively by the parties till a decision is taken in the matter and I make it clear that it is only intended to see that no trouble is caused to each other till a final decision is taken in the matter. It is inevitable that the Commissioner has to get the assistance of the Surveyor or the Village Officer with necessary field measurement documents for the purpose of proper demarcation of the properties in accordance with the documents relied on by the parties. The F.A.O is disposed of with the above directions. M.N. KRISHNAN, JUDGE cl : 5 :