IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 FAO.No. 56 of 2006() ------------------------------ AS.15/2001 of ADDITIONAL DISTRICT COURT (ADHOC), I,MANJERI OS.171/1987 of MUNI-MAGI.COURT,PERINTHALMANNA .................... APPELLANT(S): (APPELLANTS DEFENDANTS) ------------------------ 1. PATHUMMA UMMA, W/O.LATE ABDURAHIMANKUTTY HAJI, PATHARI HOUSE, PUTHANANGADI P.O., (VIA) ANGADIPPURAM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. 2. KABEER, S/O.LATE ABDURAHIMANKUTTY HAJI, PATHARI HOUSE, PUTHANANGADI P.O., (VIA) ANGADIPPURAM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.V.S.ROBIN RESPONDENT(S): (RESPONDENT/ PLAINTIFF) ------------------------ K.T.MOHAMMED, S/O.KIZHAKKETHALAKKAL UNNEEN MUSLIAR, KIZHAKKETHALAKKAL HOUSE, P.O.PARIAPURAM, (VIA) ANGADIPPURAM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT, PIN-679 321. ADV. SRI.K.S.MADHUSOODANAN FOR R1 SRI.T.V.JAYAKUMAR NAMBOODIRI FOR R1 SRI.THUSHAR NIRMAL SARATHY FOR R1 SRI.M.M.VINOD KUMAR FOR R1 SMT.K.M.RAMYA FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/12/2008, ALONG WITH FAO NO. 57 OF 2006 FAO NO. 83 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.874/2006 IN FAO NO.56/2006 DISMISSED 10.12.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NOs. 56/06, 57/06 & 83/06 = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008. J U D G M E N T FAO 56/06 is preferred against the judgment and decree in O.S.171/87 by the defendants in the suit . FAO 57/06 is filed by the plaintiff in O.S.167/87. I make it very clear I have referred to the rank in the original suit because FAOs are filed against the appellate judgment remanding the cases to the trial court for fresh consideration. FAO 83/06 is filed by the plaintiff in O.S.171/87 against the judgment and decree passed by the appellate Court as A.S.15/01. Both the suits are for injunction with one difference that in O.S.167/87 Court fee is paid u/s 27(a) of the Court Fees Act which enables the Court to consider the question of title as well in the suit. The scope of remand as is seen from the appellate judgment is that the properties have to be identified in both the suits with respect to their title deeds and the plaintiff in O.S.171/87 is specifically directed to produce final decree and the attached plan enabling the F.A.O. NOs. 56/06, 57/06 & 83/06 -:2:- Court to identify the property delivered to him and what are the survey numbers covered by item No.16 and what are the areas allotted to him. So also the other observations as well require consideration as ordered by the Court. 2. Now, the success or failure of the plaintiffs in both the suits would depend upon firstly on the question of identification of the property, secondly whether the plaintiff in O.S.167/87 is having title to the property and thirdly whether the plaintiffs in the respective suits are able to succeed in proving their possession etc. When I state the word title with respect to O.S.167/87 it is a matter where in a suit for injunction where Court fee is paid u/s 27(a) of the Court Fees Act the question of title also can be looked into and the paramount importance would be on the question of possession. So, in order to adjudicate these cases the title documents produced by the parties can be referred to, the property be identified with respect to the title deeds on which the party claims the properties and thereafter on the basis of the evidence to be tendered by the party orally as well as documentary the question be heard by the Court and the suits to be disposed of accordingly. F.A.O. NOs. 56/06, 57/06 & 83/06 -:3:- 3. It is also submitted that there is some complication with respect to the identification and therefore as desired by the appellant in FAO 83/06 I direct the trial court to appoint a Commissioner with the assistance of the Taluk Surveyor to identify the property with respect to the documents relied on by the parties and as also directed by the appellate court. If the parties had any additional particulars that may also be permitted to be supplied then the matter be decided. Being a very old suit specific directions may be given to the Taluk Surveyor who has to help the Commissioner to do the work in the minimum possible time so that there will be an end to the prolonged litigation. As there is no hearing date, now I direct the parties in these cases to appear before the trial court on 12.1.09. Send a copy of the judgment to the trial Court. The FAOs are disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-