IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH JULY 2011 / 3RD SRAVANA 1933 FAO.No. 200 of 2011() --------------------- AS.1/2010 of D.C COURT,THODUPUZHA OS.236/2005 of MUNISIFF'S.COURT,THODUPUZHA .................... APPELLANTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------- 1. FABIANOSE GEORGE, AGED 54 YEARS, S/O.VARKEY, NEERAMPUZHA HOUSE, THALAMATTOM KARA, THODUPUZHA VILLAGE. 2. KUNJUMARY @ SAKUNTHALA, AGED 49 YEARS, W/O.FABIANOSE GEORGE, DO. DO. BY ADV. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL) RESPONDENT(S): APPELLANT/PLAINTIFF & DEFENDANT -------------------------------------------------------------------------------- 1. LOOSAMMA, AGED 50 YEARS, W/O.SEBASTIAN GEORGE, NEERAMPUZHA HOUSE, PERUMANKANDOM KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, PIN-685597. 2. CHERIACHAN GEORGE, AGED 47 YEARS, S/O.VARKEY, NEERAMPUZHA HOUSE, THENNATHUR KARA, KODIKULAM VILLAGE-685582. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 25/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 200 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of July, 2011. JUDGMENT Aggrieved by the order of remand in A.S. 1 of 2010 by the District Court, Thodupuzha, respondents 1 and 2 before the court below have come up in appeal. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The plaintiff instituted the suit for fixation of boundary, recovery of possession and other consequential reliefs. The plaintiff claimed title to the suit property by virtue of Exts.A1, A2, A3 and A4. The plaintiff claimed to have absolute title and in possession and enjoyment of the suit property. The defendants 1 and 3 are brothers of plaintiff's husband. According to the plaintiff, the property purchased by the predecessor-in-interest of the plaintiff and the property purchased by the first defendant were clearly separated by boundaries and they were lying separately and F.A.O.200/2011. 2 were being enjoyed separately. It was alleged in the paint that on 2.2.2005 the defendants had removed stones, trespassed into plaint A schedule property and reduced it into their possession. The said portion is shown as plaint B schedule property. Pointing out that the defendants had no right over plaint B schedule property, the suit was laid for the reliefs already made mention of. 4. The defendants resisted the suit. They disputed the description of the plaint schedule property and contended that even though the document of title of the plaintiff took in 20 cents, the property received by them was far less in extent. They denied the allegation in the plaint regarding the removal of stones in the property and also trespass. According to them, the plaintiff had no title to the suit property and it belonged exclusively to them. Several other averments are also made in the written statement, which are not very relevant for the present purpose. 5. It appears that the plaintiff had applied for a commission report and plan. The trial court appointed a F.A.O.200/2011. 3 commissioner, who filed Ext. C1 report and C1(a) plan. Based on the commission report and plan it is seen that the plaint was amended. Evidence was adduced by both sides. Evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A9. The defendants had D.Ws.1 to 4 were examined and and Ext.B1 marked. Exts. C1 and C1(a) are the commission report and plan. 6. The trial court mainly based on Ext.B1 petition filed by the plaintiff before the Dy.S.P. and also holding that the commission report cannot be accepted, dismissed the suit. 7. The plaintiff carried the matter in appeal as A.S. 1 of 2010. The lower appellate court on a re-consideration of the evidence found fault with the trial court for dismissing the suit and held that an opportunity ought to have been given to the plaintiff to have her property identified in accordance with the title deeds. It was also found that there was no proper consideration of the issues involved in the suit and the plaintiff had to be given F.A.O.200/2011. 4 an opportunity to establish her case. The lower appellate court also found that the trial court has grievously erred in giving undue significance to Ext.B1, which was merely a petition preferred by the plaintiff to the Dy.S.P. relating to the complaint of trespass. The lower appellate court therefore allowed the appeal and remanded the matter for fresh consideration in accordance with law. 8. Learned counsel appearing for the appellants pointed out that the lower appellate court has erred in finding that the commissioner has not identified the plaint schedule property as per the documents of title, especially when the plaintiff had no case that the commission report was erroneous nor she had filed any objection to the same. Under those circumstances, there was no justification in allowing the plaintiff to obtain a fresh commission report and plan. Moreover, it was contended that the plaintiff had been given ample opportunity to adduce evidence. It is also contended by the learned counsel that when there was nothing to show that the plaintiff was precluded from F.A.O.200/2011. 5 adducing evidence due to any reason by the trial court, there was no justification in the lower appellate court holding that issues have not been properly determined. 9. One needs to note that the plaintiff had taken out a commission and obtained a plan and report. Plaintiff got the plaint amended based on the commission report and plan. Later on the trial court found it not acceptable and dismissed the claim of the plaintiff. It is also important to notice that much of the discussion is centered round Ext.B1, which is a petition filed by the plaintiff before Dy.S.P. regarding the alleged trespass committed by the defendants. 10. The lower appellate court found that both the above reasons are unjustified and unreasonable. The lower appellate court was of the view that if as a matter of fact it was found that the commission report and plan were not acceptable, an opportunity ought to have been given to the plaintiff to obtain a proper plan and report. It was also held by the lower appellate court that the reliance placed on F.A.O.200/2011. 6 Ext.B1 by the trial court is without any justification. One must remember that the suit is based on title and for recovery of possession. It is the title deeds of the parties which had to be considered for identifying the respective properties of the parties. If as a matter of fact the trial court found that the commission report and plan were not acceptable, an opportunity ought to have been given to the plaintiff to obtain a proper plan and report. Instead of doing that, the trial court dismissed the suit mainly on the ground that the commission report and plan are not acceptable and that in the complaint filed before the Dy.S.P. a lesser extent is shown as the property in the possession of the plaintiff. 11. The lower appellate court has given cogent and convincing reasons for finding that a fresh opportunity ought to be given to the plaintiff to obtain a proper plan and report so as to decide the issues involved in the suit. One fails to see as to what prejudice is caused to the defendants by the act of the lower appellate court in remanding the matter especially when it is found that the reasons given by F.A.O.200/2011. 7 the trial court are unjustified and unreasonable and the dismissal of the suit was improper. In the light of the averments in the plaint and the contentions in the written statement, the lower appellate court was right in holding that a proper commission report and plan are necessary for the resolution of the disputes involved in the suit. That is all what the lower appellate court has done. There are no grounds made out to interfere with the judgment and decree of the lower appellate court. Accordingly this appeal is dismissed. P. BHAVADASAN, JUDGE sb.