IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 FAO.No. 247 of 2009() --------------------- AS.25/2006 of III ADDL.SUB COURT, KOZHIKODE OS.505/2002 of PRL.M.C.KOZHIKODE-I .................... APPELLANT/RESPONDENT/DEFENDANT: --------------------------------------------------- V.S.MUHAMMED ASHRAF, S/O.V.B.SAIDHUKUTTY, AGED 52 YEARS, VALIYAVEETIL, KACHERI AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): APPELLANT/PLAINTIFF: ---------------------------------------------- KILIYANATTU JAYARAJAN, S/O.KILIYANATTU KUNHIRAMAN, AGED 70 YEARS, VALAPPIL THODY HOUSE, KACHERI AMSOM DESOM, KOZHIKODE DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 13/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 247 OF 2009 = = = = = = = = = = = = = = = Dated this the 13th day of October, 2009. J U D G M E N T This appeal is preferred against the order of remand of the Subordinate Judge, Kozhikode in A.S.25/06. The said appeal was preferred against the judgment and decree passed by the learned Munsiff, Kozhikode in O.S.505/02. The learned Munsiff after considering the entire materials had partly decreed the suit restraining the defendant and his men from trespassing into the plaint A schedule property or committing any act of waste therein. The relief of mandatory injunction was not granted. The subject matter of the suit is as follows. 2. There are three schedules of property. A schedule is the total of B plus C schedule and the remainder. B schedule is the property wherein the defendant is having karaima right and 'C' schedule is where the plaintiff claims right and prays for a mandatory injunction. A perusal of the judgment of the appellate court would establish that the F.A.O. 247 OF 2009 -:2:- Court had remanded the case because the property has not been properly identified with respect to the documents relied upon by the party. When the plaintiff claims property by virtue of a specific document it is fundamental that the property which is claimed comes within the four corners of that document. A Commissioner who was appointed in the case did not locate the property with respect to the documents of the parties but located on the basis as pointed out by the plaintiff. I feel such an identification of the property will not be proper unless it is admitted by the parties. So in a suit of this nature the matter requires real consideration and therefore the order or remand does not suffer from any illegality. But the relief of injunction granted also is not proper for the reason that if A schedule takes in B schedule also and if an injunction is granted with respect to A schedule then the admitted property now vested with the defendant also is given a go by when an injunction is granted. Therefore the matter requires reconsideration at the hands of the trial court and therefore I do not propose to interfere with the order of remand. Let the trial court give opportunity to the parties to file appropriate work memo F.A.O. 247 OF 2009 -:3:- before the Commissioner which will help the Commissioner to identify the property with respect to the title deeds and then also permit them to produce documentary evidence if they feel so as well as oral evidence and then dispose of the matter in accordance with law. Since the relief of injunction is sought on the basis of possession it is also a matter that has to be considered for the reason that a person can be in possession even without title deeds. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-