IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 FAO.No. 151 of 2008() --------------------- AS.21/2005 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.485/1996 of MUNSIFF COURT, CHANGANACHERRY .................... APPELLANT/IST RESPONDENT/PLAINTIFF: ---------------------------------------------- P.K.PUSHPAVALLY AMMA, AKSHAYA HOUSE, KAVUMBHAGOM, CHERUVALLY VILLAGE. BY ADV. MR. RAJEEV V.KURUP RESPONDENT(S): APPELLANT AND RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------------- 1. M.K.SUBHADRAMMA, CHANDRAKANTHAM HOUSE, KAVUMBHAGOM, CHERUVALLY VILLAGE. 2. STANLEY THOMAS, POTTAMPLACKAL HOUSE, KADAYANIKADU P.O., VELLAVOOR. 3. THANKAMMA OF DO. DO. 4. SELIBICHEN OF DO. DO. 5. GLORI OF DO. DO. 6. LOULAMMA OF DO. DO. 7. REJI OF DO. DO. DO. (SECOND RESPONDENT IN THE 1ST APPEAL IS NOT ARRAYED HEREIN AS A RESPONDENT BECAUSE HE IS NO MORE) ADV. MR. JOHN VARGHESE FOR R3,5 TO 7 MR. P.M.JOSEPH FOR R3,5 TO 7 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.151/2008 ORDER ON I.A.2441 OF 2008 IN FAO.151 OF 2008 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 19.2.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- F.A.O. No. 151 OF 2008 -------------------------------------------------- Dated this the 19th day of February, 2009 J U D G M E N T Plaintiff in O.S. 485 of 1996 on the file of Munsiff Court, Changanacherry is the appellant. Appeal is filed challenging the judgment in A.S. 21 of 2005 on the file of Additional District Court, Kottayam remanding the suit for fresh disposal. That appeal was filed by first defendant alone challenging the decree passed by Munsiff, Changanacherry in O.S. 485 of 1996. Suit was originally dismissed. It was challenged before the Distrtict Court, Kottayam in A.S.200 of 1999. The District Court allowed the appeal and remanded the suit for fresh disposal. After the remand, defendants 3 and 4 did not appear and as seen from paragraph 8 of judgment of the trial Court, they were declared exparte. As directed by the Appellate Court in A.S.200 of 1999 a commission was appointed and the commissioner submitted Ext.C3 report and C3(a) plan. On the side of the appellant, Ext.A4 was also marked. No further evidence was adduced by the first defendant. Learned Munsiff F.A.O.151/2008 2 thereafter decreed the suit partly. Title of the plaintiff to item Nos. 2 and 3 of the plaint schedule properties was declared and boundaries of item Nos. 1 to 3 were fixed based on Ext.C3(a) plan. First defendant challenged that appeal before Additional District Court, Kottayam in A.S.21 of 2005. When that appeal was pending, second defendant died and his legal heirs were impleaded as respondents 4 to 8. Learned Additional Sub Judge finding that when the commissioner examined as PW3 and surveyor as PW4 deposed that they did not properly identify the properties, set aside the judgment and remanded the suit for fresh disposal with a direction to appoint either a fresh commission or to remit Ext.C3 report and C3(a) plan to the earlier commissioner. It is challenged in this appeal. 2. Though notice was sent to first respondent, the appellant in A.S. 21 of 2005, it was not served. Finally notice was effected by publication and service was declared sufficient. She did not appear. Only the respondents 3 and 5 to 7 who were impleaded in A.S.21 of 2005 as legal heirs of the second defendant, who was declared exparte by the trial Court, appeared in this appeal. F.A.O.151/2008 3 3. Learned counsel appearing for appellant and learned counsel for respondents were heard. 4. The plaint schedule property as well as the properties claimed by the defendants admittedly originally belonged to the mother of the second defendant, who was subsequently removed from the party array. As per Ext.B1 sale deed dated 16.5.1978, the mother transferred her right in respect of the property covered therein, in favour of the son, the now removed second defendant, who in turn under Ext.B2 assigned that property to the first respondent. First respondent also obtained the property covered by Ext.B5 sale deed dated 23.10.1986. The appellant is claiming title of the plaint schedule property under Ext.A1 sale deed dated 6.6.1978 executed by Rajamma Pillai Amma, the mother of the now removed second defendant as per sale deed 1495 of 1978. The dispute is with regard to the identification of the properties. That is the reason why in A.S. 200 of 1999 the Appellant Court directed trial Court to properly identify the properties and decide the case soon afresh. 5. Learned counsel appearing for the appellant pointed out that even though the commissioner submitted Ext.C3 report F.A.O.151/2008 4 and C3(a) plan, no objection was filed to the report and plan. Learned counsel appearing for the respondents did not dispute the submission. The trial Court granted a decree accepting Ext.C3 report and C3(a) plan. Learned Additional District Judge relying on the so-called admission of the commissioner as PW3 and surveyor as PW4 set aside the judgment of the trial Court holding that the properties were not properly identified. As rightly argued by the learned counsel appearing for the appellant, a reading of the judgment of the Appellate Court shows that learned Additional District Judge did not properly consider the appeal in the proper perspective. Even the question whether the commissioner has properly identified the properties, was not considered. Merely based on the deposition of PWs 3 and 4 , when they were questioned on the identification of the properties with reference to the named persons in the document, it was found that the properties were not identified. Learned Additional District Judge should have found out whether there is any defect in the identification made by the commissioner instead of setting aside the judgment, without considering that crucial question. In such circumstances the judgment of the F.A.O.151/2008 5 Additional District Judge, Kottayam in A.S.21 of 2005 is set aside and A.S.21 of 2005 is restored to the file of Additional District Judge. Additional District Judge is directed to dispose the appeal on merits in accordance with law. M. SASIDHARAN NAMBIAR, JUDGE okb