Kizhakkamkunnath Saidalavi ... vs Basheer
2022 Latest Caselaw 7172 Ker

               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

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