IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 FAO.No. 132 of 2010() --------------------- AS.98/2009 of SUB COURT, PERUMBAVOOR OS.283/2001 of MUNSIFF'S COURT,MUVATTUPUZHA .................... APPELLANT/IST RESPONDENT/PLAINTIFF:- ------------------------------------------------- VARKEY, S/O.ABRAHAM, KOCHUKUDIYIL HOUSE, OORAMANA KARA, MEMMURY VILLAGE. BY ADV. SRI.C.DILIP SRI.SAJU.S.A RESPONDENTS/APPELLANTS & R2/ DEFENDANTS 1 & 2 AND ADDL. 3RD DEFENDANT: --------------------------------------------------------------------- 1. PAULOSE, S/O.ABRAHAM, KOCHUKUDIYIL HOUSE, OORAMANA KARA, MEMMURY VILLAGE. 2. THANKACHAN, S/O.VARKEY, -DO- - DO - 3. RAMAMANGALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, RAMAMANGALAM GRAMA PANCHAYAT, RAMAMANGALAM. R3 BY ADV. SRI.T.R.MADHU R1 & R2 BY SRI.P.FAZIL R1 & R2 BY SRI.A.C.THOMAS ADHIKARAM THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P. BHAVADASAN, J. ====================== F.A.O No.132 of 2010 ====================== Dated, this the 21st day of October, 2011. JUDGMENT Aggrieved by the order of remand dated 15.03.2010 in A.S. No. 98 of 2009 passed by the Sub Court, Perumbavoor, the plaintiff before the trial court has come up in appeal. 2. The suit was one for declaration of title and recovery of possession. The plaintiff based his title on Exts.A1 to A3. The first defendant resides on the western side of the plaint schedule property and the second defendant resides on the northern side of the property belonging to the first defendant. The allegation in the plaint was that they were trying to cut open a new pathway through the plaint schedule property having a width of 10 feet. Later after cutting open the pathway, they are using the way forcibly. Therefore, the suit for declaration of title and for realisation of damages. 3. Later the suit was amended incorporating the prayer for mandatory injunction also. 4. The defendants resisted the suit. They disputed the title of the plaintiff over the plaint schedule properties. According to them, in between the properties of the parties, there was old F.A.O. No. 132/2010 -:2:- thondu which was used as a way having an average width of 6 feet. It was being used by the parties to the suit and other people of the locality and the defendants have acquired right of easement by prescription over the said way. It is also contended that it is used as a public way and is vested with the local authority. They disputed the allegations of trespass and other alleged misconducts. Therefore, they prayed for a dismissal of the suit. 5. On the basis of the above pleadings, issues were raised by the trial court. 6. The evidence consisted of the testimony of PWs 1 and 2 and Exts. A1 to A5 were marked. The defendants examined DWs 1 to 3 and Exts. C1, C1(a), C2 and C2(a) were marked. The trial court found that the plaintiff has succeeded in establishing his case and granted a decree. 7. The defendants challenged the decree passed by the Munsiff's Court, Muvattupuzha in an appeal preferred as A.S. No. 98 of 2009. The lower appellate court came to the conclusion that the commission report namely Ext.C2 and C2(a) plan are of little help in identifying the property of which recovery of possession was allowed and there has been no proper identification of the suit property. It therefore, set aside F.A.O. No. 132/2010 -:3:- that portion of the decree and remanded the matter to the lower court for the limited purpose of measuring the plaint schedule property with the help of the Surveyor with reference to the title deeds of parties and survey records. Certain other directions were also given which are not very relevant for the present context. 8. It is the above remand order that is assailed before this Court. 9. The learned counsel appearing for the appellant pointed out that the reasons given by the lower appellate court to remand the case to the trial court is without merit and found erroneous. According to the learned counsel, the side measurements of the property which is sought to be recovered are available from the C2(a) report and plan and that is sufficient to identify the property by which recovery of possession has been decreed. It is also emphasised that the title of the plaintiff over the plaint schedule property was found by both the courts and the remand was, thus, unnecessarily. 10. The appellate court has found that the area of the plot relating to which recovery was granted as per C2 plan does not show the extent of the property. So also the court below states that the C2 plot plan does not mention the scale to which the F.A.O. No. 132/2010 -:4:- plan is drawn. The lower appellate court found that the defendant had filed objection to the report and plan. The mere fact that the area as such is not mentioned and the fact that the plan is silent regarding the scale are by themselves insufficient to hold that there was no proper identification. if those particulars are necessary, the report could have been remitted calling up the Commissioner to furnish the necessary data. There is no justifiable reason for the lower appellate court to set aside the commission report and plan. 11. However, it is necessary to get the extent of property that is to be recovered and to know the scale to which the plan is drawn. Now the appellate court set aside the commission report and plan and directed the trial court to get a fresh report and plan. 12. The only lacuna pointed out is that the area of B plot of which recovery has been ordered is not seen stated in the commission report and plan. Apart from the fact that the side measurements of those plots have been shown, the court could have remitted the report to the Commissioner and directed to furnish the necessary data. There was no justifiable reasons to set aside the commission report and plan. F.A.O. No. 132/2010 -:5:- 13. Thus, while confirming the remand order, it is directed that the trial court shall remit the report and plan to the same Commissioner and direct him to supply the omissions noted by the lower appellate court. Thereafter, it shall consider the questions afresh only regarding the identity of the property to be recovered. The findings regarding the title is confirmed. Parties may be permitted to adduce further evidence to the limited extent regarding the extent of the property regarding which recovery of possession is to be granted. 14. The parties shall appear before the trial court on 24.11.2011. The trial court may make every endeavour to dispose of the suit as expeditiously as possible and at any rate within a period of six months of date of appearance of the parties before the trial court. sd/- P. BHAVADASAN, JUDGE. rv A copy of the judgment shall be communicated to the trial court. True Copy/ P.A to Judge.