IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 176 of 2008()
1. KUTTAN PILLAI, S/O.MANIKUTTY, AGED 72
... Petitioner
2. LEKSHMIKUTTY RADHA, W/O.KUTTAN PILLAI,
Vs
1. UPENDRAN, S/O.SREEDHARAN, AGED 56 YEARS,
... Respondent
For Petitioner :SRI.P.GOPAKUMARAN NAIR
For Respondent :DR.K.P.SATHEESAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :07/10/2009
O R D E R
M.N. KRISHNAN, J.
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F.A.O. NO. 176 OF 2008
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Dated this the 7th day of October, 2009.
J U D G M E N T
After hearing the learned counsel for the both sides this
court finds that there is absolute necessity for obtaining a
plan and report for a proper identification of the property
with respect to A to C schedule properties described in the
plaint. The said identification be done with reference to the
title deeds of the parties or other materials which the party
may furnish before court. When such is the situation the
lower appellate court should not have observed that the
finding on possession of plaint A and B schedule properties
rendered already in favour of the plaintiff by the lower court
and accepted in appeal shall be subject to the acceptability of
the plan and report of the Advocate Commissioner to be
submitted based on title deeds of parties and Ext.A2
compromise petition. So if really the Court was convinced
about everything then there was no necessity for a remand
to identify the property with respect to the title deeds as well
F.A.O. 176 OF 2008
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as Ext.A2 compromise petition. So what is really required is
a fresh consideration of the entire matter basing upon the
documents relied upon by the parties on the Commissioner’s
plan and report which is bound to be produced before Court.
Necessarily parties have to be permitted to adduce both
documentary as well as oral evidence in support of their
respective contentions and the matter be disposed of in
accordance with law. The question of possession can also be
a subject matter of consideration by the trial court after the
property is properly identified. So any observations in
contravention to this shall not affect the right of any parties
and therefore I vacate the order of the learned District Judge
making some observations on the plaint A and B schedule
properties and the possession. The parties are directed to
appear before the Court below on 11.11.2009.
The FAO is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-