IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 FAO.No. 248 of 2008() --------------------- AS.11/2008 of DISTRICT COURT,KOLLAM OS.981/1985 of PRL.MUNSIFF'S COURT., KOLLAM .................... APPELLANT/FIRST RESPONDENT/FIRST DEFENDANT:- ---------------------------------------------------------------- BHARGAVI AMMA MEENAKSHI AMMA, D/O BHARGAVI AMMA, AGED 56, THEVARAZHIKATHU VEEDU, KANNIMEL CHERRY, SAKTHIKULANGARA VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR RESPONDENT(S): APPELLANT & RESPONDENTS 2 TO 8/PLAINTIFF AND DEFENDANTS 2 TO 8 ------------------------------------------------------------------------------- 1. NARAYANAN NAIR CHANDRAN NAIR, S/O NARAYANAN NAIR, AGED 46, VILAYIL VEEDU, MUKHATHALA CHERRY, THRIKKOVILVATTOM VILLAGE, FROM MOONNAM VATHUKKAL, MEENATHU CHERRY, SAKTHIKULANGARA, KOLLAM. 2. DEVAKI AMMA RADHAMMA, D/O DEVAKI AMMA, AGED 55, CHERIYAMBALLOOR VEEDU, SAKTHIKULANGARA VILLAGE. 3. KESAVAN ACHARY CHELLAPPAN ACHARY, S/O KESAVAN ACHARY, AGED 60 , ROOM NO. SP/5-578, NEAR KAVANADU MARKET, KOLLAM FROM KALPPALAZHIKATHU THEKKATHIL VEEDU, KUREEPUZHA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM. 4. G.VAMADEVAN, AGED 57, ROOM NO.SP/579 WESTERN SIDE OF MARKET ROAD, FROM KIDANGIL VEEDU, MEENATHU CHERRY. 5. SANTHAMMA, AGED 67 , W/O SADANANDAN, KOLLANTAZHIKATHU VEEDU, KOTTAKKAKOM CHERRY, KOLLAM. 6. SIVANANDAN RAJU, AGED 49, KOLLANTAZHIKATHU VEEDU, KOTTAKKAKOM, CHERRY, KOLLAM. 7. USHA, D/O SANTHAMMA, AGED 47, KOLLANTAZHIKATHU VEEDU, KOTTAKKAKOM, CHERRY KOLLAM. 8. SHAJI, S/O SIVANANDAN, AGED 37, KOLLANTAZHIKATHU VEEDU, KOTTAKKAKOM, CHERRY, KOLLAM. (RESPONDENTS 3 TO 8 ARE DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF APPELLANT VIDE ORDER DTD.18.3.2009 ON I.A.4975/2008. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.4214/2008 IN F.A.O.NO.248/2008 27.3.2009 DISMISSED Sd/- M.SASIDHARAN NAMBIAR JUDGE /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO. 248 OF 2008 =========================== Dated this the 27th day of March,2009 JUDGMENT First defendant in O.S.981/1985 on the file of Munsiff Court, Kollam is the appellant. First respondent is the plaintiff and second respondent the second defendant in the suit. Though other defendants were impleaded, as they were unnecessary parties for the purpose of the appeal appellant got them deleted. The first respondent instituted the suit for fixation of the boundary of plaint schedule property. Learned Munsiff originally dismissed the suit. It was challenged in A.S.224/1995. First appellate court remanded the suit after setting aside the report of the Commissioner, with a direction to appoint another Commissioner to locate the properties claimed by the parties under Ext.A1 partition afresh, without giving F.A.O. 248/2008 2 any specific direction as to how the property is to be identified. Under Ext.A1 partition deed the southernmost 4 cents was allotted to Raghavan Nair from whom appellant purchased the property. The four cents which lies immediately to the north of that property was allotted to the first respondent plaintiff. The property to its north was allotted to the second respondent. But specific boundaries of the properties separately allotted to the parties are not given in Ext.A1. The only indication available to fix the property apart from the southernmost, to its north and further north is the existence of shop rooms on the eastern portion of the property. Ext.A1 shows that the eastern portion of the property was acquired for the formation of the road and immediate to the west of the road there exist a row of shop rooms. In the share allotted to Raghavan Nair, existence of shop rooms is mentioned. In the share allotted to the first respondent, portion of the shop room is F.A.O. 248/2008 3 mentioned. In the property allotted to the second respondent also shop rooms are mentioned. 2. Subsequent to the remand another Commissioner was appointed. That Commissioner submitted a report and plan. Later they were set aside by the trial court and another Commissioner was appointed. It was challenged before this court in C.R.P.781/2004. C.R.P was disposed directing the Commissioner to identify the property including the shop rooms, observing that it is for the court to decide the ownership of the shop rooms on the evidence. The Commissioner so appointed submitted Ext.C2 report and C4 plan. Based on Ext.C2 and C4 learned Munsiff granted a decree and fixed the boundary. It was challenged before District Court, Kollam in A.S.11/2008. Learned District Judge after hearing the parties set aside the judgment of the trial court finding that Ext.C2 report and C4 plan do not show that the properties allotted to the different sharers were F.A.O. 248/2008 4 fixed in accordance with the boundary shown in ExtA1. District Judge remanded the suit once again for fresh disposal.The order of remand is challenged in this appeal. 3. Though notice was sent to the first respondent/plaintiff, he did not claim the notice. As per order in I.A.4976/2008 service was declared sufficient. Second respondent did not appear. 4. Learned counsel appearing for the appellant was heard. 5. The argument of the learned counsel is that as per Ext.A1 the only indication to fix the property allotted to the sharers, is existence of the shop rooms. It was pointed out that when in item No.1 which was allotted to the assignor of appellant existence of shop rooms is mentioned, in item No.4 which is the property allotted to first respondent what is mentioned is only portion of the shop and therefore the property allotted to the first respondent and Raghavan Nair could be fixed F.A.O. 248/2008 5 in such a way that the plot allotted to Raghavan Nair should contain shop rooms and the property of the first respondent should contain portion of the shop room and the order of remand does not give any indication as to how the properties are to be fixed It was pointed out that though District Judge found that the properties were not identified with reference to the boundaries shown in Ext.A1, Ext.A1 does not contain the boundaries of the different plots allotted to the shares but only the common boundary of the plot and based on that boundary, the properties allotted to the sharer cannot be fixed. 6. On going through the judgment of the trial court and the first appellate court, it is clear that the whole dispute arose because boundaries of the respective plots allotted to the sharers are not mentioned in Ext.A1. On going through Ext.A1 one could only find that what was allotted to Raghavan Nair, the assignor of the appellant was 4 F.A.O. 248/2008 6 cents which lies on the southern extremity and the property allotted to the first respondent is immediate to its north. But as pointed out by the learned counsel for the appellant, when Ext.A1 shows that at the time of division under Ext.A1 parties had given importance to the shop rooms, existence of the shop rooms mentioned in the different sharers cannot be ignored. If that be so, the southern most 4 cents allotted to the respondents should contain shop rooms. If the 21 cents plot is located and the southernmost 4 cents is separated, it may not contain any shop room. That is why the whole dispute arose. 7. The argument of the learned counsel for the appellant is that the intention of the parties is to be given due importance and therefore the property cannot be identified as the southernmost 4 cents alone, but it is to be the southern plot which contain shop rooms. In the light of Ext.A1, it is difficult to identify the properties F.A.O. 248/2008 7 inclusive of the shop rooms. That is the reason why the reason identification made by the Commissioner is being set aside and finally the appellate court once again remanded the suit. 8. On the facts and materials this is a fit case which is to be sent for mediation, so that the dispute could be settled between the parties by mediation. As a mediation center is being started at Kollam, it is in the interest of justice to direct the Munsiff to appoint a mediator so that the dispute could be finally settled between the parties. The appeal is therefore dismissed directing the Munsiff, Kollam to appoint a mediator to fix the boundaries as sought for. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006