IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 FAO.No. 162 of 2008() --------------------- AS.4/2006 of SUB COURT, PALA OS.19/2003 of MUNSIFF COURT, PALA .................... APPELLANT/RESPONDENT/PLAINTIFF:- ---------------------------------------------------- DR. M.J.JOSEPH, KOTTARAMATTOM BANGLAVU, VELLAPPADU KARA, LALAM VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT,. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S)/ APPELLANTS/DEFENDANTS : ------------------------------------------------------ 1. BEN.P.J, PALLICHATHAYYIL, PONADU KARA, LALAM VILLAGE, PONADU P.O MEENACHIL TALUK, KOTTAYAM DISTRICT. 2. KATHRIKUTTY BEN, OF DO...DO... ADV. SRI.P.C.HARIDAS FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 162 OF 2008 = = = = = = = = = = = = = = = Dated this the 8th day of March, 2010. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, Pala in A.S.4/06. The said appeal in turn is preferred against the judgment and decree of the Munsiff Court, Pala in O.S.19/03. The suit originally instituted is one for a mandatory and prohibitory injunction and the court below had granted a mandatory injunction as well as a prohibitory injunction. It is against that decision the appeal before the Subordinate Judge, Pala was preferred. The learned Sub Judge, after considering the materials on records found that the property has not been properly identified with respect to the documents or the resurvey plan and therefore had remitted the case for identifying the property and disposing of the matter. 2. The brief facts would reveal that the plaintiff is claiming 5 Ares and 15 sq.mtr. of property comprised in R.S.No.48/21. The properties were purchased by virtue of F.A.O. 162 OF 2008 -:2:- two documents 2748/87 and 305/89. The plaintiff is running a hospital by name “Christu Raja Hospital. Now there is a road leading to the plaint schedule property and according to the plaintiff one of the adjacent owners namely Joseph Michle has dedicated some portion of the property and therefore the plaintiff by making use of his property as well as the dedicated land has constructed a road having a width of 14 feet. Now the case of the plaintiff is that the defendant is entering into that area and is constructing a wall which would certainly reduce the width of the pathway and thereby prays for a mandatory injunction. 3. On the other hand the respondent/defendant would contend that the plaintiff has no manner of right over the property which is in dispute and the plaintiff's documents does not take in the disputed property and therefore is not entitled to any relief. The trial court on a consideration of the materials especially Exts.C1 and C1(a) plan held that the property of the defendant is protruded to a distance of 30 cms. and therefore directed him to demolish the wall and also granted an injunction in favour of the plaintiff. So the crux of the matter depends upon the question whether the F.A.O. 162 OF 2008 -:3:- plaint schedule property forms part and parcel of the property claimed by the plaintiff. Or in other words whether this property is covered by documents Exts.A1 and A2 in addition to the property said to be dedicated by one Joseph Michle. Now the appellate court had very clearly stated in his judgment that PWs.2 and 3 the Commissioner and surveyor had deposed that they had not identified the properties with respect to the title deeds. In paragraph 11 of the judgment the appellate court has found, “The evidence of PWs.2 and 3 would show that they failed to identify the property belonging to the plaintiff and defendant as per the description on the title deeds. PW2 in cross examination has admitted before the Court that so as to identify the properties the same are to be measured as per the description in the title deeds in favour of the respective parties.” 4. The Court also found that the plaintiff is in possession of excess portion of about 1.75 cents of property than that is derived by him as per Exts.A1 and A2 sale deeds. So now it has become absolutely necessary in a case of this nature especially in the light of the contention that the F.A.O. 162 OF 2008 -:4:- plaintiff is claiming right over the same property by virtue of a dedication given by one Joseph Michle. So it has to be found out which is the plaintiff's property as per Exts.A1 and A2. Thus identify the property according to his title deeds and then the Court has to find out whether there is any property in between which belongs to Joseph Michle. Thereafter if it is found that the defendant is in possession of the property with respect to his title deeds and the plaintiff is in possession of the property with respect to his title deeds and further finds that there is property of Joseph Michle in between the two, then necessarily the contention of the plaintiff that Joseph Michle had surrendered some portion of the property also may have to be taken into consideration. So it is absolutely essential in a case of this nature to identify the suit properties with respect to the title deeds of the plaintiff and defendant and then decide the issue in accordance with law. In the light of the evidence of PWs.2 and 3 that the properties had not been identified with respect to the title deeds so it has become imperative on the part of the Court to direct the parties to get the property identified with respect to their title deeds and if necessary as per F.A.O. 162 OF 2008 -:5:- survey or resurvey measurement as the case may be, especially in the backdrop of the fact that even as per the materials available as the plaintiff is having 1.75 cents of land in excess of the land covered by Exts.A1 and A2. Therefore the direction of the appellate court to identify the property and then decide the matter afresh is perfectly right and it does not call for any interference. But I make it very clear that the plaintiff can also seek the help of a surveyor to identify the property and the plaintiff as well as the defendant are at liberty to file work memos before the Commissioner to note down any additional points which they require and then the matter be disposed of in accordance with law. Let the same Commissioner be appointed if he is available or let a new experienced Commissioner be appointed to do the work. With these observations the FAO is disposed of. M.N. KRISHNAN, JUDGE. ul/-