Vijayalakshmi and Dr. Antony Newton v Ambika Kumari and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944** ## **RSA NO. 989 OF 2016** **AGAINST THE ORDER/JUDGMENT IN AS 227/2015 OF ADDITIONAL DISTRICT COURT - VI,** ## **THIRUVANANTHAPURAM** **OS 1800/2002 OF III ADDITIONAL MUNSIFF COURT ,THIRUVANANTHAPURAM APPELLANTS/RESPONDENTS 5 AND 6 IN THE APPELLATE COURT AND ADDITIIONAL DEFENDANTS 5 AND 6 IN THE TRIAL COURT:** - **1 VIJAYALAKSHMI, AGED 70 YEARS WIFE OF SEKHARAN, KAREESHMA, YAKKARA VILLAGE, ARANI P.O., NOW RESIDING AT HOUSE NO.44, KAKKANADU LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** - **2 DR. ANTONY NEWTON, AGED 60 YEARS HOUSE NO.73, KAKKANADU LANE, KESAVADASAPURAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004. BY ADVS. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL** - **RESPONDENTS/1ST RESPONDENT IS THE APPELLANT IN THE LOWER APPELLATE COURT AND PLAINTIFF IN THE TRIAL COURT. RESPONDENT NOS.2 TO 5 ARE THE RESPONDENTS 1 TO 4 IN THE LOWER APPELLATE COURT AND DEFENDANTS 1 TO 4 IN THE TRIAL COURT:** - **1 AMBIKA KUMARI, AGED 56 YEARS TC 11/847, KAKKANADU VEEDU, KAKKANADU LANE, KESAVADASAPURAM, NOW RESIDING AT TC 3/2488-2, HOUSE NO.259, MARAPPALAM, PATTOM P.O., THIRUVANANTHAPURAM-695 004.** - **2 SUBHAKUMARI, AGED 55 YEARS D/O. MADHAVI AMMA, KAKKANADU, KUMARAMANDIRAM, TC 11/848, KAKKANADU LANE, KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004. (DELETED)** - **3 RAVINDRAN, AGED 54 YEARS S/O. NARAYANAN NAIR, SURABHI, VIVEKANANDHAPURAM, MANNAMOOLA, PEROORKADA, THIRUVANANTHAPURAM-695 005. (DELETED)** - **4 ADARSH JAYAN, AGED 26 YEARS S/O. JAYACHANDRAN, INDIRA RAJEEVAN, KOCHULLOOR, ULLOOR VILLAGE, THIRUVANANTHAPURAM-695 011. (DELETED) (RESPONDENT NOS.2 TO 4 WILL STAND DELETED FROM THE PARTY ARRAY AS PER THE ORDER DATED 09.02.2017 IN I.A.NO.261 OF 2017).** - **5 ASHOK KUMAR, AGED 24 YEARS S/O. PANKAJAKSHAN, VARUVILAKATHU VEEDU, PEEDIKATTU MURI, CHERUVIKKAL VILLAGE, THIRUVANANTHAPURAM-695 011. BY ADVS. SRI.AJIT G.ANJARLEKAR SHRI.AJIT G ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.RAM MOHAN.G. SRI.G.P.SHINOD** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARED ON 29.11.2022, THE** **COURT ON 22.12.2022 DELIVERED THE FOLLOWING:** R.S.A.No.989/2016 **2** ## JUDGMENT This Regular Second Appeal has been directed against the judgment and decree in A.S.No.227/2015 on the file of VI Additional District Court, Thiruvananthapuram, which in turn arise out of the judgment and decree in O.S.No.1800/2002 on the file of 3[rd] Additional Munsiff's Court, Thiruvananthapuram. 2. Appellants are the defendants 5 and 6, who are subsequently impleaded in the above original suit. The suit was one for declaration, recovery of possession, putting up of boundary and for a permanent prohibitory injunction. 3. Originally after trial the learned Munsiff dismissed the suit and the District Court, Thiruvananthapuram as per the judgment in A.S.No.41/2007 dated 27.05.2010 set aside the judgment and decree dismissing the suit and remanded the case for fresh disposal. After remand, Munsiff again dismissed the suit partly and aggrieved by the same A.S.No.227/2015 was filed and the first appellate court by the impugned judgment decreed the suit as prayed for and appellants/respondents 5 & 6 were directed to pay the cost in the original suit as well as in the R.S.A.No.989/2016 **3** appeal. Against which, the appellants/additional defendants 5 and 6 approach this Court in Regular Second Appeal. 4. The plaint schedule property is 45 cents of land in total, out of which, 40 cents is obtained by the plaintiff as per Release Deed No.797/1979 executed by her mother and brother in her favour in pursuance of Ext.A2 Partition Deed executed among the family members. 5 cents of property, out of 45 cents, is alleged to have been obtained by the plaintiff out of 30 cents which was allotted to the share of her late father, Raghavan Pillai. The plaintiff's mother, Madhavi Amma was married to late Raghavan Pillai and his brother Narayana Pillai. Raghavan Pillai died on 08.10.1978 and after his death his right over 30 cents of property and building devolved upon Narayana Pillai and sister Parukkutty Amma, who is a spinster and was living with the plaintiff's parents. It is alleged that the plaintiff was given 45 cents including the 5 cents of property which is the disputed property and the family house in the said 5 cents belonging to her father. The remaining 25 cents of property owned by Raghavan Pillai which was devolved upon his brother Narayana Pillai and her sister Parukkutty Amma was settled in favour of the plaintiff’s brothers Lekshmanan Nair and Ashtakumaran R.S.A.No.989/2016 **4** Nair as per Ext.A4 Settlement Deed wherein 5 cents of property left apart to the plaintiff in survey No.955 on the southern portion of the 30 cents has been described. The 25 cents allotted to Ashtakumaran Nair has been described as plaint 'B' schedule property. Later, Ashtakumaran Nair and first defendant exchanged the property as per Ext.A5 Exchange Deed in which also there is specific mention of 5 cents of property set apart to the plaintiff and accordingly she is in possession of 45 cents of property. Out of B schedule, a portion was sold to the second defendant by the first defendant. Plaintiff requested for demarcation of the plaint schedule property with the first defendant but with no result. In the meantime, first defendant approached the Collector alleging that the property has been demarcated and police protection is required for constructing the compound wall separating 'A' and 'B' schedule properties and Deputy Collector issued order allowing police protection and in pursuance of that order, with the help of police, defendants encroached into the property and put up a compound wall, in the property in possession of the plaintiff. The family house which is mentioned in the Exchange Deed is now in the possession of the defendants and it is partly demolished, after R.S.A.No.989/2016 **5** being alienated to the 2[nd] defendant. The defendants alienated their property having an extent of 7.190 cents to 3[rd] and 4[th] additional defendants from the B schedule property during the pendency of the suit and that is described as 'C' schedule. So the plaintiff sought for declaration of her right and title over plaint 'A' schedule property and to demolish the compound wall constructed encroaching into the property. Since the first defendant is attempting to alienate the property including the portion of plaint 'A' schedule property an injunction is also sought for. Subsequently defendants 3 and 4 were impleaded. 5. First defendant filed written statement contending that the suit is barred by limitation. The description of the plaint schedule property is incorrect and it includes the property of the defendants also. There is no excess land as claimed in 'A' schedule property. Plaintiff has not obtained absolute right over the entire plaint schedule property. She had only 40 cents of land in survey No.955 and is in possession of the said land. She has not produced any document to prove her possession over 45 cents of property. Defendant obtained B schedule property as per Exchange Deed No.1680/1981 and the defendant sold certain extent of land and balance land is in his absolute possession and R.S.A.No.989/2016 **6** enjoyment and had obtained patta and effected mutation and is paying tax. Defendants property lies on the northern side of plaintiff's property and there is a compound wall separating both the properties and a house is also there in plaint B schedule property and the first defendant and her family are residing therein. The suit has been filed to stall the alienation of the property by the defendants. The plaintiff had an intention to purchase B schedule property for a meagre price and all those factors resulted in filing the suit. 6. Second defendant filed separate written statement contending that he is a bonafide purchaser of 6 cents of property on the north-eastern side of 25 cents of property, a portion of B schedule from the first defendant. The properties are well demarcated. 7. Third and fourth defendants filed separate written statement, almost reiterating the contentions in the written statement of the first defendant. 8. PWs 1 and 2 examined and Exts.A1 to A7 were marked on the side of the plaintiff. DWs 1 & 2 examined on the side of defendants and Exts.B1 to B4 were marked. Exts.C1 & C1(a) were also marked. Defendants 3 & 4 contested the matter. R.S.A.No.989/2016 **7** 9. On evaluating the facts, circumstances and evidence adduced, the trial court found that plaint A schedule property measured by the Commissioner and Surveyor is only 41.735 cents. Hence plaint schedule property is not identified and accordingly the suit was dismissed in part and the plaintiff is allowed to put up a boundary separating 'A' and 'B' schedule in accordance with the plan and sketch appended to the commissioner's report. Against which, appeal has been filed and the first appellate court on re-appreciating the facts, circumstances and evidence adduced, reversed the judgment and decree passed by the Munsiff's Court and decreed the suit as prayed for. Against which, present appeal has been filed. 10. Notice was issued to respondents. Lower court records were called for and perused. Both sides were heard. 11. At the time of admission, this Court formulated the following substantial questions of law: 1. Did the lower appellate court commit impropriety in deciding the first appeal against the findings and directions in the judgment in A.S.41/2007, District Court, Thiruvananthapuram to which the R.S.A.No.989/2016 **8** parties were bound? 2. Can the plaintiff claim title to 5 cents of land banking upon a recital in Ext.A4 deed to which the plaintiff is not a party and is a document not relating to the said 5 cents of land? 3. Can court of law declare title to an immovable property when the plaintiff claiming title had no documentary evidence to show the derivation of title or failed to establish the acquisition of title by adverse possession? 4. Whether the lower appellate court is legally correct in granting the prayer for declaration of a proprietary title on the basis of the finding that the plaintiff has established a possessory title over the property? 12. According to the learned counsel for the appellants/addl. defendants 5 and 6 who are the subsequent assignees of the defendants, 5 cents of property is the disputed property out of 45 cents. There is no dispute with regard to the property obtained by the plaintiff as per Ext.A1 extending to 40 cents. Plaintiff further alleges about 5 cents of property allotted to her father's share which is the disputed item. As per the averments in the plaint, her father is Raghavan Pillai who died on 08.10.1978 and this property is further alleged to have been given to her in connection with her marriage solemnized on R.S.A.No.989/2016 **9** 12.09.1979 and she was put in possession of 45 cents of property including 5 cents and the family building situated therein on 17.09.1979. So the first contention of the learned counsel is that as on 17.11.1979 her father Raghavan Pillai is not alive and hence that itself would falsify her allegation regarding 5 cents of property set apart to her. It is further contended by the learned counsel that the first appellate court in the impugned judgment has exceeded his jurisdiction since the order was passed beyond the scope of the remand order in A.S.No.41/2007. It is also his contention that while setting aside the original judgment of the trial court in A.S.No.41/2007 as per the judgment dated 27.05.2010 the first appellate court has categorically found that the commissioner and surveyor had attempted to identify the property on the basis of resurvey plan and also on the basis of lie of the land in accordance with the possession of the property by the parties and it is not the method by which the property has to be identified especially when title to the property has to be declared to the party. Hence an opportunity was given to the plaintiff to take out a fresh commission to identify the property on the basis of Ext.A2 Partition Deed and also on the basis of the partition deed by which the predecessor of the plaintiff obtained R.S.A.No.989/2016 **10** the property and the 5 cents of property which was alleged to have been given to the plaintiff by the predecessors of the defendants without any document, but claiming to be in her possession and also to find out the portion from where the encroachment was made thereafter for the purpose of granting the relief claimed by her. Plaintiff was also given an opportunity to amend the plaint to make clear the devolution of the right with respect to 5 cents of property over and above the 40 cents obtained by her as per Ext.A2 partition deed. But, according to the learned counsel, the trial court after remand found that the commissioner could not identify the property as per the title deeds in view of the plan submitted and dismissed the suit. But the first appellate court again relied on the report prepared originally by the commissioner on the basis of re-survey and granted a decree which according to him is beyond the scope of the remand. So, at any rate, according to the counsel, the impugned judgment passed by the first appellate court is not sustainable in law. 13. The learned counsel for the plaintiff on the other hand would contend that the earlier commission report was not set aside and making a detailed discussion of the provisions of the R.S.A.No.989/2016 **11** Kerala Survey and Boundaries Act, 1961 and evaluating the facts, circumstances and evidence, the first appellate court rightly granted the decree to the plaintiff. It is also his contention that in view of Ext.A4 Settlement Deed executed in favour of Lakshmanan Nair and Ashtakumaran Nair and her sister Parukkutty Amma wherein there is specific mention of 5 cents of property set apart to the plaintiff out of total 30 cents and that wording has been reiterated in Ext.A5 Exchange Deed subsequently executed between Ashtakumaran Nair and the first defendant. Hence the defendants are estopped from contending against the existence of 5 cents of property set apart to the plaintiff. 14. Learned counsel for the plaintiff in this context drew my attention B.L.Sreedhar & Ors. v. K.M. Munireddy (Dead) & Ors. [AIR 2003 SC 578 : 2003 KHC 841 : 2003 (2) SCC 355]. Paragraph Nos.13, 14 and 15 of which read thus: 13. Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872, (in short 'Evidence Act') which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing. [See R.S.A.No.989/2016 **12** Sunderbai and Anr. v. Devaji Shankara Deshpande [AIR 1954 SC 82]. 14."Estoppel is when one is concluded and forbidden in law to speak against his own act or deed, yea, though it be to say the truth" - Co. Litt., 352 (a), cited in Ashpital v. Byron, 3B and Section 474(489); Simon v. Anglo American Telegraph Co., (1879) 5 Q.B.D. 188 C.A., per Bramwell L.J. at p. 202; Halbury, Vol. 13. Para 488. So there is said to be an estoppel where a party is not allowed to say that a certain statement of fact is untrue, whether in reality it be true or not. Estoppel, or conclusion, as it is frequently called by the order authorities, may therefore, be defined as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. -Halsbury, Vol. 13, para 448. The rule on the subject is thus laid down by Lord Denman, in Pickard v. Sears, 6 Ad. & E. 469 at p. 474: “But the rule is clear, that, where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and induces him to act to that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." The whole doctrine of estoppel of this kind, which is fictitious statement treated as true, might have been founded in reason, but I am not sure that it was. There is another kind of estoppel - estoppel by representationwhich is founded upon reason and it is founded upon decision also." Per Jessel, M.R. in General Finance & R.S.A.No.989/2016 **13** Co. v. Liberator L.R. 10 Ch. D. 15(2). See also in Simon v. Anglo-American Telegraph Co., L.R. 5 Q.B. D. 202 Bramwell, L.J. said" An estoppel is did to exist where a person is compelled to admit that to be true which is not true and to act upon a theory which is contrary to the truth." 15. On the whole, an estoppel seems to be when, in consequences of some previous act or statement to which he is either party or privy, a parson is precluded from showing the existence of a particular state of facts. Estoppel is based on the maxim, allegans contraria non est audiendus (a party is not be heard to allege the contrary) and is that species of presumption, where the fact presumed is taken to be true, not as against all the world, but against a particular party, and that only by reason of some act done; it is in truth a kind of a argumentum ad hominem.” 15. It is also his submission that there was evidence of trespass from the side of the defendants as per Ext.C1 commissioner's report which was the commission taken along with the suit. Further he would contend that a superior court to which had made the order of remand earlier can go into the question of legality or validity of the order of remand. Francis Assissi v. Sr. Breesiya & Ors. [ILR 2017 (1) Ker.33 : 2017 KHC 15: 2017 (1) KLT 1041] was relied on to contend that the first appellate court is well with in the powers to rely on the earlier R.S.A.No.989/2016 **14** commission report which has not been set aside by the first appellate court while remanding the case. Finally, he would also contend that if at all there is any requirement to interfere with the judgment passed by the first appellate court decreeing the suit an opportunity to be given to the plaintiff to take out a fresh commission and identify the disputed 5 cents of property. 16. As stated earlier, the dispute is with regard to the 5 cents of property alleged to have been obtained by the plaintiff towards her father's share. With respect to 40 cents of property, which she acquired as per Ext.A3 Release Deed executed by her mother and brother in pursuance of Ext.A2 Partition Deed, in which 'A' schedule 40 cents allotted to them, which was subsequently released to the plaintiff, there is no dispute. The dispute is with respect to 5 cents of property, alleged to be situated further north to it, which according to her, has been set apart to her out of the share of Raghavan Pillai, her father, who had been allotted 30 cents of property as per the Partition Deed. 17. Though the learned counsel for the appellants would contend that the name of her father has been described as Raghavan Pillai in the plaint and she alleged to have obtained R.S.A.No.989/2016 **15** the property as set apart by her parents and even before the date 27.11.1979 her father died and that would falsify her claim of 5 cents, admittedly her mother had two husbands, Narayana Pillai and Raghavan Pillai and even though in the plaint it has been alleged that she is the daughter of Raghavan Pillai in Ext.A4 Partition Deed, which is the prior title deed of the defendants executed by Narayana Pillai as well as his sister Parukkutty Amma who is a spinster, it has been described about partition deed executed among them with their brother Raghavan Pillai and the property allotted to Raghavan Pillai, who is a bachelor and accordingly it is described that his share has been devolved upon them and they are the only legal heirs of Raghavan Pillai. That seems to a certain extent correct also, otherwise his property ought to have been devolved upon the plaintiff who is the daughter of Raghavan Pillai. So anyway the Narayana Pillai and his sister executed a settlement deed in favour of the predecessor in interest of the first defendant with respect to the properties devolved upon them due to the death of Raghavan Pillai. It has been specifically stated in the schedule that out of 65 cents in the Kanjiramutt purayidom in the northern extremity in east-west to a length of out of 30 cents, R.S.A.No.989/2016 **16** leaving 5 cents set apart to Ambika Devi, (plaintiff) 25 cents and a small building etc. So that document would reveal that 5 cents of property out of total 30 cents set apart to Raghavan Pillai on the northern extremity of total 65 cents has been left out to the plaintiff. In the subsequent Exchange Deed Ext.A5 executed between the predecessors in interest of the defendants and the defendants would also state about the 5 cents left apart to the plaintiff ,the balance 25 cents out of 30 cents is exchanged. So though there is no document as such with respect to that 5 cents the wordings in Exts.A4 and A5 would make it clear that 5 cents of property has been set apart to the plaintiff by the predecessors in interest of the first defendant. So as has been contended by the learned counsel for the plaintiff the appellants who are the subsequent purchasers are estopped from disputing 5 cents of property set apart to the plaintiff out of 30 cents situated on the northern extremity of the total 65 cents in survey No.955. In this context the learned counsel for the plaintiff bring to my attention Pathukutty & Anr. v. Aisakutty and Ors. [2014 (2) KHC 212 : 2014 (2) KLJ 455 : 2014 (2) KLT SN 50] wherein it has been held that in Property Law although the definitions of ownership are more appropriate to absolute ownership, limited R.S.A.No.989/2016 **17** owners are nevertheless regarded as owners. Paragraph No.21 of the said decision is relevant in this context to be extracted, which reads thus: “Possessory title is good title against all though not against the true owner. Therefore, possessory title is heritable, divisible and transferable. Possessory title is distinct and different from proprietary title. Hence, the finding entered by the courts below that since the plaintiff could not prove title to the property, she is not entitled to get partition of the property is bereft of any merit. The partition was sought in respect of the possessory right exercised by Aleema Umma. That will hold good against all, though it may not hold against the true owner. So long as the defendants are concerned, their possession was found to be only a joint possession along with the plaintiff. Going by the findings entered earlier, it was clear that the property was in the joint possession of Aleema Umma and Muhammed, the defendant. The decisions cited supra were followed by another Bench of this Court in Philip and Others v. State of Kerala & Others, Philip and Others v. Skaria and Others, 1987 KHC 79 : 1987 (1) KLT 213 : 1987 KLN 123 and in Krishnankutty Nair v. Subramanian, 1988 KHC 241 : 1988 (1) KLT 886 : 1988 (1) KLJ 543.” 18. In the present case, the defendants' predecessor obtained right only with respect to 25 cents of property leaving 5 cents set apart to the plaintiff. So even if there is no title R.S.A.No.989/2016 **18** document in favour of the plaintiff, the defendants cannot deny the plaintiff's right over the 5 cents of property set apart as per the title deed while their predecessor purchased 25 cents of property. The appellants being the subsequent purchasers are estopped from contending otherwise and denying the right of the plaintiff over the said 5 cents of property set apart by their predecessor to her. 19. So the next question is whether 5 cents of property has been properly identified and whether the first appellate court went wrong in relying on the resurvey plan which was not accepted by the first appellate court originally and remanded the case for measurement of the property based on the title deeds and the subsequent commissioner who conducted the measurement with the help of surveyor could not identify 5 cents of property claimed by the plaintiff. 20. In this context learned counsel for the plaintiff relied on Krishna Pillai v. Padmanabha Pillai [AIR 2004 SC 1206 : 2004 KHC 544 : 2004 (2) KLT 61]. 22. Sub-section (2) of Section 105 of Code of Civil Procedure, 1908 is an express bar for a party aggrieved by an Order of remand from which an appeal lies does not appeal R.S.A.No.989/2016 **19** therefrom, from disputing its correctness there after. Subsection (2) of Section 105 C.P.C. is relevant in this context to be extracted, which reads thus: (2) Notwithstanding anything contained in subsection (1), where any party aggrieved by an order of remand from which an appeals lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. 23. Learned counsel for the appellants in this context relied on Satyadhyan Ghosal & Ors. v. Deorajin Debi and Ors. [AIR 1960 SC 941]. Paragraph No.15 of the said decision is relevant in this context to be quoted, which reads thus: “15. It is clear therefore that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. A special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand the correctness thereof could be challenged by an appeal from the final decision as in the cases of other interlocutory orders. The second sub-section R.S.A.No.989/2016 **20** did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand.” 24. So against the remand order in A.S.No.41/2007 an appeal lies to this Court as per Order 43 Rule 1(u). But in the present case no appeal has been filed against the remand order by the original defendants and they suffered the remand order and the trial court appointed a fresh commission for measurement of the property as per the directions of the first appellate court. The first appellate court has categorically found in A.S.No.41/2007 while remanding the case that the commissioner's report and evidence of the commissioner and surveyor would show that the property was attempted to be identified on the basis of resurvey plan and also on the basis of lie of the land in accordance with the possession of the properties by the parties. It is also found that it is not the method by which the property has to be identified especially when the title to the property has to be declared to the party. So the court gave an opportunity to the plaintiff to take out a fresh commission to identify the property on the basis of R.S.A.No.989/2016 **21** Ext.A2 partition deed and also on the basis of partition deed by which the predecessor of the plaintiff obtained the property and the 5 cents of property given to the plaintiff by the predecessors of the defendants without any document by virtue of Ext.A4 and A5. 25. The judgment of the trial court would go to show that the 5 cents of property could not be identified and commissioner proportionately divided the excess property in between the parties and ultimately the suit was partly dismissed. But the first appellate court after discussing various provisions under the Kerala Survey and Boundaries Act, accepted the resurvey plan which was earlier produced while the case was originally remanded by the first appellate court and passed a decree based on resurvey plan. The plaintiff has not challenged the remand order where in obviously originally the first appellate court was not prepared to act upon the plan prepared on the basis of resurvey and possession of the parties. But that plan is relied on and a decree has been granted. So that is against the mandate of Section 105(2) and Order XLIII Rule 1(u) of C.P.C. and hence is not sustainable in law. Krishna Pillai is a case in which the Apex court was dealing with a situation where the Apex court R.S.A.No.989/2016 **22** was dealing with a case in which the High Court in exercise of second appellate jurisdiction reversed the concurrent findings of fact and remanded the case. In that context it was held that in an appeal to Apex Court from the final order of the High Court after remand, challenge even to first order of remand of High Court and all proceedings there after as a result of illegal order of remand,was available to be laid. It was also held that when a matter reaches a forum, superior to one which had made the order of remand earlier, it can go into the question of legality or validity of the order of remand. Since impugned order is not passed not by a superior forum which passed the order of remand principles laid down in Krishna Pillai is not applicable to the case in hand. 26. It is true that the learned counsel for the appellants would also bring to my attention the discrepancy in the description of the plaint schedule property of 40 cents in the various documents and the plaint description. 27. According to him, in Ext.A2 Partition Deed the extent of property of 40 cents is described as 40 cents out of 60 cents in survey No.955. But in Ext.A3 Release Deed executed on the same day it has been shown as 40 cents out of total 65 cents in R.S.A.No.989/2016 **23** survey No.955 where as in the plaint 'A' schedule it has been described as 40 cents out of 70 cents 28. But that discrepancy in the description is with respect to the 40 cents obtained as per Ext.A2 Partition Deed and Ext.A3 Release Deed. But the 5 cents of property is out of 30 cents which is the share of Raghavan Pillai left out while settling 25 cents to the predecessor in interest of the defendants. So a proper measurement of the property as directed by the first appellate court while remanding the case in A.S.No.41/2007 is not seems to have been done. 29. So the request of the learned counsel for the plaintiff to give an opportunity to the plaintiff to measure out the property and locate 5 cents as directed in the judgment in A.S.No.41/2007 dated 27.05.2010 is only to be allowed. 30. The request of the learned counsel for the plaintiff to measure the property as per the guidelines in Sabu v. Sasi [2022 (2) KHC 435 : 2022 KLJ 206 : 2022 (2) KLT 722] is also allowed. In the result, the impugned judgment passed by the first appellate court is set aside and the case is remanded to the Munsiff's Court, Thiruvananthapuram. The learned Addl Munsiff-III is directed to comply the R.S.A.No.989/2016 **24** directions in A.S.No.41/2007 dated 27.05.2010 and appoint a fresh commission with the help of Taluk Surveyor and get the properties measured and there after dispose the case in accordance with law. Parties shall bear their respective costs. Parties are directed to appear before the court below on 16.01.2023. Since the case is of the year 2002, it has to be disposed as early as possible. Pending Interlocutory Applications, if any, are closed. Sd/- **M.R.ANITHA** Shg **JUDGE**