IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 FAO.No. 70 of 2008() -------------------- AS.46/2007 of ADDL.SUB COURT, ALAPPUZHA OS.647/2004 of PRINCIPAL MUNSIFF'S COURT, ALAPPUZHA .................... APPELLANT/PETITIONER/1ST DEFENDANT --------------------- 1. SYAMALA DEVI, D/O. DEVAKI AMMA, GOVERNMENT EMPLOYEE, MADHYAPRADESH FROM ARACKALAYA VELI MADATHIL, CHARAMANGALAM MURI, KANJIKUZHY VILLAGE, REP. BY HER P/A AND HUSBAND SREEDHARAN NAMPI, S/O. KRISHNAN NAMPI, VELI MADATHIL, -DO- -DO- 2. PREMA, D/O. SYAMALA DEVI, VELI MADATHIL, -DO- -DO- BY ADV. SRI.G.GOPAKUMAR (CHERTHALA) SRI.S.V.BALAKRISHNA IYER (SR.) RESPONDENTS: RESPONDENTS/PLAINTIFFS ------------------------- 1. RAJAGOPALAN UNNI, ARACKALAYA VELI MADATHIL, CHARAMANGALAM MURI, KANJIKUZHY VILLAGE. 2. KARTHIYAYANI AMMA, D/O. LAKSHMIKUTTY, M/O. RAJAGOPALAN UNNI, -DO- -DO- BY ADV. SRI.S.M.PRASANTH - R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== FAO No.70 OF 2008 ===================== Dated this the 20th day of June 2008 JUDGMENT This appeal is preferred against the judgment of the Addl.Sub Court, Alappuzha in A.S.No.46 of 2007 whereby he has remitted the case back to the trial court. The learned Sub Judge has also set aside the Commissioner's plan and report, which are marked as Exts.C1 to C1(b). 2. Heard the counsel on both sides. The suit is one for declaration of title and possession. There are two items of property in the plaint schedule. The property owned by the plaintiffs and the defendants is having a total extent of 1 acre 35 cents. By virtue of Ext.A1 document, 95 cents is set apart as B schedule and 40 cents is set apart as D schedule. Defendants claim B schedule and plaintiffs claim D schedule. Now the point that has to be determined in this case is whether item 2 of the plaint schedule property forms part and parcel of B schedule or in other words whether that property is a part and parcel of 40 cents allotted to the plaintiffs under D schedule. The contention appears to be that after the said document, plaintiffs have surrendered some lands for the purpose of formation of a FAO 70/2008 -:2:- road. There is a contention for the defendants in the written statement that the plot given for the formation of road if included would cover 40 cents of land and plaintiffs will not be entitled to right over item 2 of the plaint schedule property. According to the defendants, it forms a part and parcel of B schedule to that document. It is a well settled principle that in a suit for declaration of title and injunction, the burden is on the plaintiffs to prove their right over the property. A Commissioner was originally appointed and he had measured the property. He had also made mention of the road and the second time it was remitted, another plan and report is filed and against that plan and report defendants filed application I.A.No.4230 of 2006 for the purpose of setting aside the same. Unfortunately, the trial court did not pass any considered order on that application and proceeded with the matter and disposed of the case holding that the plaintiffs are entitled to the relief. Dissatisfied with the same, the matter was taken up in appeal and the appellate court held that identification of the property is not satisfactory and in order to facilitate a proper identification set aside the Commissioner's plan and report and directed to issue a fresh Commission for the identification of the property. It may not be desirable for me to dwell deep into the controversy for the reason that it may affect the party when the case is remanded for trial and disposal. Since an application for setting aside FAO 70/2008 -:3:- the Commissioner's plan and report is already pending, it is desirable that defendants are permitted to adduce evidence in that matter and if after hearing that matter, the court finds that additional particulars are necessary or the identification of the property is not proper, it can either set aside the Commissioner's plan and report or if only a remission is necessary, the court is at liberty to do the same. There is no point at this point of time to set aside the Commissioner's plan and report without applying the mind to find out whether it is correct or not. 3. Therefore, though I confirm the order of remand, I modify the judgment of the Sub Court as follows: On remand, defendants are permitted to adduce evidence both oral and documentary in I.A.No.4230/2006 and the court shall decide that question after permitting the plaintiffs also to adduce evidence and then decide whether the Commissioner's plan and report are liable to be set aside or not. If for a proper resolution of the dispute additional particulars are deemed necessary then the court is at liberty to direct the Commissioner to do that also. After passing appropriate orders in I.A.No.4230/2006 and if the court does not want any additional particulars it may proceed in accordance with law and decide the matter. I make it very clear that the court below shall dispose of the matter untrammeled by the observations contained in the order of remand as well as the judgment of FAO 70/2008 -:4:- this Court. Parties are directed to appear before the trial court on 21/7/2008 and the court below shall try for an expeditious disposal. FAO is disposed of accordingly. M.N.KRISHNAN, JUDGE Cdp/-