IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 FAO.No. 152 of 2007() --------------------- AS.12/1998 of SUB COURT, HOSDRUG OS.3/1994 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/RESPONDENT/PLAINTIFF. --------------------------------------------------- A.P.SAFIA, W/O.ANDUKKA ALIAS ABDULKHADER RESIDING AT AJANUR, AJANUR VILLAGE, HOSDRUG TALUK, POST - KOLAVAYAL. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.M.HARISHARMA SRI.T.P.ELDHOSE SMT.O.K.SANTHA RESPONDENT(S): APPELLANT/DEFENDANT. ----------------------------------- PALAT C.AHAMMED, S/O. K.USSAINAR, RESIDING AT CHALANAYI, AJANUR VILLAGE, HOSDURG TALUK, POST KOLAVAYAL, KASARAGOD DISTRICT. ADV. SRI.T.K.VIPINDAS THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA.NO.1824/07 & 145/08 IN FAO 152/07 DISMISSED 2/4/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO.152 OF 2007 ------------------------------------------ Dated 2nd April 2009 JUDGMENT Plaintiff in O.S.3/1994 on the file of Munsiff court, Hosdurg is the appellant. Defendant is the respondent. Appellant instituted the suit for permanent prohibitory injunction restraining respondent from trespassing into the plaint A schedule property. Plaint A schedule property originally was shown as 12 cents in R.S.228/1 of Ajnur village. It was subsequently amended after the commissioner submitted the report as having an extent of 10.75 cents. Appellant is claiming right and possession to the plaint schedule property under Ext.A4 sale deed. The assignor under Ext.A4 sale deed obtained title to the property under Ext.A2 sale deed. The assignor under Ext.A2 obtained title to the property under Ext.A1 sale deed. Respondent is claiming right to plaint schedule property contending that said property belongs to him under Ext.B1 sale deed and Ext.A3 exchange deed. It is admitted case that Hassinar the FAO 152/07 2 assignor under Ext.A4 sale deed and respondent exchanged portions of the property obtained by them under Ext.A2 and Ext.B1 having an extent of 12 cents each under Ext.A3 exchange deed. A schedule property under Ext.A3 is the property belonging to Hassinar the predecessor of the appellant which was exchanged with the B schedule property therein. The B schedule property therein is 12 cents of the property obtained by the respondent under Ext.B1. Case of the appellant is that plaint schedule property is not part of Ext.A3 exchange deed but is the remaining property left with Hassinar, the assignor after Ext.A3 exchange and it was purchased by him under Ext.A4 sale deed. Contending that respondent has no right or possession to the plaint schedule property and respondent is attempting to trespass into the property the suit was filed. Respondent resisted the suit contending that appellant did not obtain the entire extent shown in Ext.A4 sale deed even his predecessor did not obtain the entire extent and plaint schedule property does not form part of the property belonging to the appellant. Case of the respondent is that plaint schedule property is the property covered under Ext.A3 FAO 152/07 3 exchange deed and it is A schedule property therein which was given to the respondent under Ext.A3, in exchange of B schedule property therein and appellant has no possession to the same and therefore the suit is not maintainable. 2. In view of the dispute with regard to the identity of the property a commission was appointed. Commissioner originally submitted Ext.C1 report which was an ex-parte report. Thereafter Ext.C2 report and C3 plan were filed. Exts.C2 and C3 were remitted back to the commissioner and commissioner submitted Exts.C4 report and C5 plan. Again report and plan were remitted back to the Commissioner and Commissioner submitted Ext.C6 report. Again report was remitted and the Commissioner submitted Exts.C7 report and C8 sketch. 3. Learned Munsiff on the evidence of the appellant as PW1 and Exts.A1 to A5 and C1 to C8 and Dws.1 to 3 and Exts.B1 to B6(b) on the side of the respondent and CW1 the Commissioner, granted a decree restraining respondents from trespassing into the plaint schedule property. Respondent challenged that judgment before Sub court, Hosdurg in A.S.12/1998. FAO 152/07 4 Learned Sub Judge as per impugned judgment set aside the judgment of the trial court and remanded the suit for fresh disposal finding that plaint schedule property was not properly identified. Learned Sub Judge also set aside the reports and plans submitted by the Commissioner. Appeal is filed challenging the order of remand. 4. Appeal was admitted formulating the following substantial questions of law. 1) Whether first appellate court was justified in remanding the suit after setting aside Exts.C1 to C8 when respondent had not sought such a relief. 2) When the materials available on record are sufficient to resolve the dispute involved in the suit whether order of remand is justifiable. 5. Learned counsel appearing for appellant and respondent were heard. 6. Though suit is one for injunction based on possession alone and no issue regarding title was framed, learned Munsiff as well as learned Sub Judge FAO 152/07 5 found that the question of title of the parties to the disputed property is a relevant factor to dispose the suit. According to the appellant, dispute is with regard to plot 1C as marked by the Commissioner in Ex.C3 plan and it forms part of the property obtained by her under Ext.A4 sale deed and as it forms part of the property covered under Exts.A1 and A2 the anterior title deeds, the claim was proved. According to the respondent plaint schedule property though does not form part of the property covered under Ext.B1 title deed, it forms part of the property belonging to the respondent under Ext.A3 exchange deed. It is admitted case that subsequent to Ext.A2 assignment deed and Ext.B1 sale deed Hassinar, the predecessor interest of the appellant and respondent exchanged portions of the properties. Ext.A3 shows that an extent of 12 cents which belonged to Hassinar the predecessor interest of the appellant under Ext.A2, exchanged a portion of the property having the same extent belonging to the respondent under Ext.B1. Portion of the property belonging to the predecessor interest of the appellant which was given in exchange to the respondent is A schedule property therein. The FAO 152/07 6 property belonging to the respondent which was given to the assignor of the appellant under Ext.A3 is B schedule property therein. 7. Ext.B1 title deed of the respondent establish that property which was exchanged by the respondent with the assignor of the appellant under Ext.A3 is item No.2 of Ext.B1 property. Commissioner in Ext.C3 plan identified that property as plot 1H. There was no dispute with regard to the identity of this property by the commissioner either before the trial court or before the first appellate court. Dispute centers around A schedule property shown in Ext.A3. Appellant would contend that A schedule property in Ext.A3 is plot 1B and respondent would contend that it is plot 1C which lies further to the south of plot 1B. Dispute between the parties could finally be settled only on proper identification of the properties. Learned counsel appearing for appellant vehemently argued that the Commissioner has inspected several times and submitted series of reports and plans and from the available materials the court can decide the question of title and therefore there was no justification for first FAO 152/07 7 appellate court to set aside Exts.C1 to C8 or remand the suit back to the trial court. Learned counsel appearing for appellant submitted that though application was filed before the trial court to set aside Ext.C3 report when Commissioner submitted subsequent report and plan there was no prayer to set aside the same and in such circumstances, appellate court was not justified in setting aside Exts.C1 to C8 or remanding the suit. Learned counsel appearing for the respondent pointed out that unless the property claimed by the appellant is properly identified, the dispute cannot be resolved and as the first appellate court rightly found that properties are not properly identified the reports and plans were rightly set aside and the suit was remanded for fresh disposal and there is no need to interfere with the order of remand. 8. On going through the records and the evidence it is clear that CW1 the advocate Commissioner did not properly identify the properties. It is to be born in mind that the property claimed by the appellant is the one obtained under Ext.A4 sale deed which in turn is the property covered under FAO 152/07 8 Ext.A2 sale deed less the property exchanged under Ext.A3. The property covered under Ext.A2 is the property obtained by the assignor under Ext.A1. Property claimed by the respondent is the one covered under Ext.B1 and also the property obtained under Ext.A3 by exchange of portion of the property. Therefore, for a proper resolution of the dispute between the parties, the property covered under Exts.A1 and B1 are to be identified. It is admitted case that 12 cents out of the property covered under Exts.A1 and A2 was exchanged with 12 cents, which was part of the property covered under Ext.B1. Real dispute between the parties is whether the disputed plaint schedule property forms part of the remaining property covered under Ext.A2 less the property exchanged under Ext.A3 from Ext.A2 property or whether it forms part of the property covered under Ext.A3 exchange deed. As the Commissioner did not identify these properties, learned Sub Judge was justified in remanding the suit to the trial court. As the disputed question could be decided only after proper identification. In such circumstances, I find no reason to interfere with the order of remand. FAO 152/07 9 Though there may be difference in the observations of the appellate court. 9. In such circumstances the appeal is disposed by issuing the following clarifications. The Munsiff to appoint CW1, the same Commissioner, if he is available and is willing to execute the work. As the respondent is expressing reservations a joint commission is to be appointed at the expense of the respondent. Munsiff to appoint a joint commission along with CW1, if CW1 is available to execute the work at the instance of defendant. Commissioner shall first identify the property covered under Exts.A1 and A2 and B1. Commissioner shall identify the property covered under Ext.A3 which was exchanged with the property which could only be portions of the property covered under Exts.A1 and A2 on the one hand and Ext.B1 on the other. Commissioner then to find out whether the disputed property forms part of the property left with the assignor of the appellant under Ext.A2 less the property exchanged under Ext.A3 and purchased by the appellant under Ext.A4 or forms part of the property covered under Ext.B1 and exchanged under Ext.A3. The Munsiff to permit the FAO 152/07 10 parties to adduce further evidence, if they choose. It is made clear that it is not necessary to eschew Exts.C1 to C8 from the file. The direction setting aside Exts.C1 to C8 is set aside. M.SASIDHARAN NAMBIAR, JUDGE. uj.