IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 FAO.No. 53 of 2008() -------------------- AS.6/2006 of SUB COURT, QUILANDY OS.170/1992 of MUNSIFF COURT, QUILANDY .................... APPELLANTS/APPELLANTS/DEFENDANTS: --------------- 1. R.K. SREEDHARAN NAMBIAR, S/O. APPUKUTTY NAIR, RARAN KANDI HOUSE, NADUVANNOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE. 2. R.K. BALAKRISHNAN, S/O. APPUKUTTY NAIR, THEKKAYIL HOUSE, NADUVANNOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE. 3. R.K. BHASKARAN, S/O. APPUKUTTY NAIR, RARAN KANDI HOUSE, NADUVANNOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE. 4. R.K.RAGHAVAN, S/O. APPUKUTTY NAIR, RARAN KANDI HOUSE, NADUVANNOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE. BY ADV. SRI.R.PARTHASARATHY RESPONDENTS: RESPONDENTS/PLAINTIFFS: ----------------- 1. THOTTATHIL CHALIL KALLIANI, D/O. IMBICHEKKAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT FAO.No.53/2008 : 2 : 2. THOTTATHIL CHALIL JANU, D/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 3. THOTTATHIL CHALIL DAMODARAN S/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 4. THOTTATHIL ASOKAN, S/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 5. THOTTATHIL CHALIL THANKA, D/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 6. THOTTATHIL CHALIL PUSHPA, D/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 7. THOTTATHIL CHALIL RADHAKRISHNAN, S/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 8. THOTTATHIL CHALIL GEETHA, D/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 9. THOTTATHIL CHALIL REMA, D/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT 10. THOTTATHIL CHALIL SATHIAN, S/O. CHANDAPPAN, THRIKKUTTISSERI AMSOM, VAKAYAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT BY THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 20/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- F.A.O.No.53 of 2008 ------------------------------- Dated this the 20th February, 2008. J U D G M E N T The defendants in O.S.No.170 of 1992, on the file of the Munsiff's Court, Koyilandy, are the appellants. The appeal is filed against an order of remand passed by the lower appellate court, by which it set aside the decree and judgment passed by the trial court, and remanded the suit for fresh disposal. 2. The short facts necessary for the disposal are as follows. The plaintiffs filed a suit for injunction. It was contended that suit properties originally belonged to one Chandappan, who got the property as per partition deed No.14640/1949. According to the plaintiffs, plaint schedule properties was item No.7 in the partition deed. The further case of the plaintiffs was that the property on the northern side of the plaint schedule property belonged to one Appukuttan Nair. It was alleged that the appellants trespassed into the suit property, and started blasting granite rocks. Hence, the suit for injunction. The defendants raised a contention that the properties described in Item No.7 in the partition deed and the suit properties are F.A.O.No.53/2008 2 not one and the same. It was further contended that there was a granite wall to demarcate the property of the plaintiffs and the defendants, which was more than 60 years old. Subsequently, the plaint was amended. Defendants, appellants, filed additional written statement. A Commissioner was deputed to identify the suit property. Exts.C1, C3, C5 and C7 were the reports filed by the Commissioner. Exts.C2, C4, C6 were the plans submitted by him. The trial court found that there was some confusion regarding the survey numbers mentioned in the document as that of the suit property. But, after appreciating the evidence, the trial court found that the plaintiffs were in possession of the suit property, and passed a decree of permanent prohibitory injunction. Appellants filed A.S.No.6/2006 challenging that decree and judgment passed by the trial court. The lower appellate court considered the entire evidence afresh. It also found that the property was not properly identified, and hence, set aside the decree and judgment passed by the trial court. It further found that with the material available on records, the property claimed by the respondents could not be identified properly. So, the lower appellate court, thought it fit to grant another opportunity to get the property identified, and hence, remanded the matter. Challenging that remand, this F.A.O. is filed. F.A.O.No.53/2008 3 3. It is true that there is some confusion regarding the survey numbers mentioned in the document and the property now claimed by the plaintiffs. In fact, the evidence of appellants would show that the possession of the property is not in accordance with the survey numbers mentioned in the documents. The defendants themselves had stated that though as per the document, they are having property in that survey number, actually, they have no property in that survey number. Plaintiffs have done everything possible for proper identification. Commissioners inspected the property, filed reports and plans. The lower appellate court after appreciating the facts held that reports and plans are not sufficient to identify and remanded the case back to trial court for proper identification in accordance with the measurements. No question of law arise in this case for consideration. Hence, I do not find any reason to admit the appeal. The appeal is only to be dismissed. In the result, the appeal is dismissed. K.PADMANABHAN NAIR, JUDGE nj.