IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 FAO.No. 298 of 2008() ------------------------------ AS.73/2005 of SUB COURT,THODUPUZHA OS.209/2001 of MUNSIFF COURT,THODUPUZHA .................... APPELLANTS/R1, 3 & 4 IN AS/D 1, 3 & 4 IN OS --------------------------------------------------------------- 1. BHARATHY, W/O.BHASKARAN NAIR, VADOOR HOUSE, MANAKKAD VILLAGE, THODUPUZHA. 2. ANIL KUMAR, S/O.BHASKARAN NAIR, -DO- -DO- 3. SUNIL KUMAR, S/O.BHASKARAN NAIR, -DO- -DO- BY ADV. SRI.SAJU.S.A SRI.VINOD RAVEENDRANATH RESPONDENT/APPELLANT IN AS/PLAINTIFF IN OS ------------------------------------------------------------------------ CHANDRASEKHARAN NAIR, CHUNAYAMMACKEL HOUSE, (MAVELIL), MANAKKAD KARA, MANAKKAD VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.K.K.CHANDRAN PILLAI SRI.A.S.SAJUSH PAUL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 28/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 298 of 2008 ORDER ON I.A.NO.5067/2008 IN FAO NO.298/2008 DISMISSED 28/11/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 298 OF 2008 = = = = = = = = = = = = = = = Dated this the 28th day of November, 2008. J U D G M E N T This appeal is preferred against the judgment of the Subordinate Judge, Thodupuzha in A.S.73/05. It was an appeal preferred against the judgment in O.S.209/01 of the Munsiff Court, Thodupuzha. The learned Munsiff granted a decree in favour of the plaintiff holding that the plaintiff has got title over a portion of the plaint schedule property having a width of 60 cms. and a length of 24.6.mts. lying on the northern side of the wall constructed on this property in Sy.No.816/13. It is against that decision the plaintiff has preferred this appeal contending that the finding is incorrect and that he has got title over the property having a width of 2 mts. and length of 24.6. mtrs. against the decision rendered by the Munsiff upholding the title of the plaintiff to a width of 60 cms. The defendants had preferred a cross objection also. After hearing both sides the learned appellate judge remanded the case back to the trial court for the purpose of deciding the question of adverse possession and limitation after framing appropriate issues. It is against that F.A.O. NO. 298 OF 2008 -:2:- decision defendants 1, 3 and 4 in the suit has preferred this FAO. 2. Though notice has been served on the plaintiff in the case from here he has not entered appearance. Heard the learned counsel for the appellant. Learned counsel would contend that there is a compound wall on the northern side of his property and beyond that compound wall, it is the contention of the plaintiff, he has left a land of 2 mtrs. width and 24.6.mts. length known as 'kottappadi' and the learned counsel would contend that the case of the plaintiff is that such a land is left out for the purpose of effecting repairs to the compound wall. 3. On the other hand, defendants would contend that the plaintiff does not have any property beyond the compound wall and that property is in their possession and the defendants are entitled to right and possession over the property. In the alternative defendants also would contend that the plaintiff's right if any is lost by adverse possession and limitation. 4. Before adjudicating the question of adverse possession and limitation one has to enter into a finding who F.A.O. NO. 298 OF 2008 -:3:- is the title holder of the property with respect to the land having a width of 2 mtrs. and 24.6 mtrs. length and who are all in possession of that property and only after deciding the question of title the other contention namely the question of adverse possession and limitation will arise for consideration. Unfortunately, the appellate court after considering the question of title as claimed by the plaintiff has passed a judgment remanding the case back to the trial court for considering whether the right of the plaintiff is lost by adverse possession and limitation. I feel this is an erroneous approach which requires correction and it is a substantial question of law and therefore I set aside the judgment passed by the Subordinate Judge and direct him to consider the appeal suit afresh and decide the question of title with respect to the property and in case of finding the title in favour of the plaintiff, may remand the case back to the trial court for considering the question of adverse possession and limitation. FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-