IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
FAO (RO) NO. 39 OF 2017
AGAINST THE DECREE & JUDGMENT DATED 10/01/2017 IN AS 95/2010 OF
SUB COURT, TIRUR
DECREE & JUDGMENT DATED 30/1/2010 IN OS 237/2007 OF
MUNSIFF COURT,TIRUR
APPELLANTS/PLAINTIFFS:
1 KIZHAKKAMKUNNATH SAIDALAVI (DIED)
S/O.MUHAMMED, KIZHAKKAMKUNNATH HOUSE, TANALUR(PO),TIRUR
TALUK, MALAPPURAM DISTRICT
2 KATHIYAMAKUTTY
W/O.SAIDALAVI, KIZHAKKAMKUNNATH HOUSE,
TANALUR(PO),TIRUR TALUK, MALAPPURAM DISTRICT
ADDL.A3 KAMARUDHEEN,
S/O.SAIDALAVI,KIZHAKKAMKUNNATH HOUSE,TANALUR P.O.,TIRUR
TALUK,MALAPPURAM DISTRICT-676 307.
ADDL.A4 MUHAMMED ABDUL JALEEL,
S/O.SAIDALAVI,KIZHAKKAMKUNNATH HOUSE,
TANALUR P.O.,TIRUR TALUK,
MALAPPURAM DISTRICT-676 307.
ADDL.A5 HAJARA,
D/O.SAIDALAVI,KIZHAKKAMKUNNATH HOUSE,
TANALUR P.O.,TIRUR TALUK,
MALAPPURAM DISTRICT-676 307.
ADDL.A6 RIYAS,
S/O.SAIDALAVI,KIZHAKKAMKUNNATH HOUSE,
TANALUR P.O.,TIRUR TALUK,
MALAPPURAM DISTRICT-676 307.
LEGAL HEIRS OF DECEASED FIRST APPELLANT IMPLEADED AS
ADDL. APPELLANTS 3 TO 6 AS PER ORDER DATED 27.05.2019
IN I.A.1/2019.
BY ADV T.G.RAJENDRAN
FAO(RO)No.39/2017 2
RESPONDENT/DEFENDANTS:
1 BASHEER
S/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
2 SAINABA
D/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
3 MAJEED
S/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
4 SULAIKHA
D/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
5 KHADEEJA
D/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
6 SAFIYA
D/O.THOTTIYIL ALIKUTTY, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
7 THALOOKKATTIL KUNHALI HAJI
S/O.KUNHUMUHAMMED, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
8 THALOOKKATTIL KUNHEEVI
W/O.KUNHALI HAJI, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
9 THALOOKKATTIL RUKHIYA
W/O.KUNHALI HAJI, RESIDING AT TANALUR AMSOM
DESOM,TANALUR(PO), TIRUR TALUK, MALAPPURAM DISTRICT-
676307
BY ADVS.
SRI.ASHWIN SATHYANATH FOR R1 TO R3
FAO(RO)No.39/2017 3
SRI.T.KRISHNANUNNI (SR.)FOR R1 TO R3
SRI.K.C.KIRAN FOR R1 TO R3
SMT.MEENA.A.FOR R1 TO R3
SRI.SAJU.S.A FOR R1 TO R3
SRI.VINOD RAVINDRANATH FOR R1 TO R3
SRI.VINAY MATHEW JOSEPH FOR R1 TO R3
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO(RO)No.39/2017 4
JUDGMENT
A remand was ordered by the first appellate court after setting aside the decree and judgment of the trial court for the purpose of remitting back the Commissioner's report so as to identify the plaint schedule property. Exts.C1 to C4 are the mahazar report and the rough sketch prepared by the Commissioner. It is reported by the Commissioner that he could not see any way in existence either public or private through the property of the plaintiffs. On the other hand, the report and the sketch prepared by the Commissioner would show that the property of the defendants on the northern side has been bounded by barbed wire fencing. All other three sides were also bounded by a wall constructed by using stone especially the place wherein the plaint schedule property separates from that of the property of the defendants. Though the defendants claim a right of way and existence of a public way, no such way was either identified or located by the Commissioner. In fact, no such way or traces was also reported by the Commissioner. On the other hand, it is clear that the property of the FAO(RO)No.39/2017 5 plaintiffs - Item No.1 and 2 has been bounded by a well defined boundary structures. I am at a loss to understand why such an observation was made by the first appellate court without going into the facts and evidence involved. It is not at all necessary to remit back the Commissioner's report, plan and rough sketch. Instead of attending all the issues involved in the suit, the first appellate court had adopted an easy method of disposal by a reverse driving. The legal position is very much settled by this Court in Gopalakrishnan and Another v. Ponnappan and others [2021 (5) KHC 548] followed by the decision of the Apex Court in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988 KHC 883). Hence, the order of remand is hereby set aside. The parties shall appear before the first appellate court on 06/07/2022 to proceed further in the matter in accordance with the legal position settled in Gopalakrishnan's case(supra).
The appeal is allowed accordingly. No costs.
Sd/-
P.SOMARAJAN sv JUDGE