Thomas P. Joseph, J.

1. This appeal is admitted on the following substantial questions of law :-

1) When as per Ext.C2(a), survey plan submitted by the Advocate Commissioner, eastern boundary of the plaint schedule property is along EKF line which is also along the natural boundar, signified by the existence of anjili trees and the plaintiff did not seek Ext.C2(a), plan to be set aside either before the trial court or before the lower appellate court, was the lower appellate court justified in remanding the case to the trial court to enable the plaintiff to amend the plaint and seek a declaration of title and recovery of possession

2) When even the plaintiff did not file any application for amendment of the plaint, was the lower appellate court right in setting aside judgment and decree passed by the trial court and remanding the case to the trial court to enable the plaintiff convert the suit into one for declaration of title, recovery of possession etc.

3) When there has already been a trial on evidence before the court of first instance, was the appellate court right in exercising its power under Order XLI Rule 23 of the Code of Civil Procedure, (for short the Code) in View of the decisions in India Army and Police Equipment v. Kanodia Brothers (1968 KLT SN 19 (Supreme Court) and Sekharan Nambiar v. Ramunni Nambiar (1992 (1) KLT 429) merely because that court was of the view that the plaintiff who could lead better evidence had failed to do so or had failed to institute a more comprehensive suit

2. This appeal arises from the judgment dated 13.02.2009 in AS. No. 297 of 2007 of the Additional District Court, Kottayam setting aside judgment and decree dated 14.06.2007 in O.S. No. 156 of 2005 of the Munsiffs Court, Ettumanoor.

3. Respondent/plaintiff sued for fixation of eastern boundary of the suit property and for prohibitory injunction. She claimed that the suit property, described as 30.75 cents in old survey No. 76/26/1 and 76/26/2 of Perumpaikkadu village belongs to and is in her possession as per Ext.A1, settlement deed of the year, 1980. She alleged that at the time of the said settlement deed and thereafter, there was a fixed boundary on the eastern side of the suit property. Property on the further east, 10 cents in re-survey No. 572/37-34 of the same village belongs to the appellant. The respondent alleged that while constructing building in the said 10 cents the appellant demolished eastern boundary of the suit property. Hence the suit.

4. The appellant claimed that he is the owner in possession 10 cents in re-survey No. 572/37-34 as per Ext.B1, settlement deed executed by predecessor-in-interest of the respondent. He denied the allegation of demolition of eastern boundary of the suit property.

5. The trial court appointed an Advocate Commissioner to measure property of the appellant and the respondent. Exts. C1 and C1(a) are the report and plan obtained after measurement as per the documents of title while Exts. C2 and C2(a) are those obtained after measurement based on re-survey records. The trial court preferred Exts. C2 and C2(a) to Exts. C1 and C1(a) and passed a decree for fixation of boundary. Aggrieved, the respondent preferred A.S. No. 297 of 2007. Learned Additional District Judge noticed that the respondent had, during the pendency of the suit filed an unstamped application I.A No. 855 of 2006 for amendment of plaint to incorporate a prayer for mandatory injunction to direct the appellant demolish a portion of the building constructed by him (allegedly) encroaching into the suit property belonging to the respondent. But, the trial court had not disposed of the said application before disposal of the suit. The lower appellate court made certain observations concerning the scope of a suit for fixation of boundary. Judgment and decree were set aside and the suit were remitted to that court for fresh decision with a direction to give opportunity to the respondent/plaintiff to amend the plaint by incorporating all reliefs he would like to seek.

6. Learned counsel for the appellant contends that there was no scope for remand of the case giving legal opinion of what the respondent/plaintiff should have done in the matter. According to the learned counsel, Ext.C2(a) has to be preferred to Ext.C1(a). It is also argued that there was no prayer in the application for appointment of the Advocate Commissioner to measure the properties as per the old survey and hence measurement of properties as per re-survey is justified. According to the learned counsel, there was also no request to set aside Ext.C2 and C2(a). At any rate remand should not have been resorted when the disputed question could be decided by the lower appellate court on the evidence on record.

7. Learned counsel for the respondent has contended that the trial court was bound to dispose of I.A. No. 855 of 2006 before disposing of the suit. It is pointed out that in the application for appointment of the Advocate Commissioner, request was to measure the properties with reference to the document of title and survey records, meaning thereby the old survey records. According to the learned counsel, the changes if any, brought about in the re-survey cannot confer title to the property.

8. Because there is changes in the extent of the property in the re-survey, that by itself would not confer title. Even beyond the period of one year after finalization of resurvey, a suit on title disputing the re-survey is maintainable. The suit in this case is originally filed is for fixation of boundary alone though a consequential relief of injunction is also sought.

9. It is seen from the judgment of the lower appellate court that the respondent had, though towards fag end of the suit had filed I.A. No. 855 of 2006 for amendment of the plaint to incorporate a prayer for mandatory injunction. Whether in the nature of allegations made in the affidavit in support of that application, it was sufficient to ask for mandatory injunction or whether she should have asked for other reliefs including a prayer for declaration of title over the disputed area is a matter which I should leave to the respondent to decide.

10. Now the question is whether the lower appellate court was justified in interfering with the judgment and decree based on Exts. C2 and C2(a) As aforesaid, Ext. C (a) is based on re-survey records. I have gone through the application for appointment of the Advocate Commissioner and find that in the affidavit in support of that application what is requested is that the properties are to be measured as per survey. There is no specific statement in the application that measurement is to be made with reference to the resurvey. But, that by itself does not mean that trial court could not have directed measurement of properties with reference to there-survey as well. The appropriate course would have been to get the properties measured with reference to the old survey as well, the trial court already having obtained the plan based on the document of title and resurvey.

11. It is to be noticed that even as per Exts. C2 and C2(a), extent of land in the possession of the appellant is found to be 10.7936 cents (as against 10 cents covered by Ext.B1) while, so far as property in the possession of the respondent is concerned, as against 30.7936 cents referred to in Ext.A1, it is 27.150 cents. Of course, the appellant has a contention that the deficit in extent of property belonging to and in the possession of the respondent occurred on account of certain extent being in the possession of third parties towards the northern portion of the property on the immediate north of property of the appellant. These are the matters which the trial court has to decide after recording appropriate evidence. I must also notice that it is not disputed that from out of the property belonging to the appellant, a portion was surrendered for formation of the road.

12. In view of I.A. No. 855 of 2006, the trial court was required to consider request of the respondent for amendment of the plaint. But, I am inclined to make it clear that the respondent shall not be confined in her request for amendment of the plaint to what is prayed for in I.A. No. 855 of 2006 having regard to the fact situation. Rule 23A of Order 41 of the Code gives wide powers for the appellate court to order remand of the case even when it is found that there was some omission or laches on the part of the parties concerned. Hence, even if it is assumed that there was some laches on the part of the respondent either in seeking appropriate relief or in requesting the trial court to get the properties surveyed as per old survey also, that does not mean that the appellate court is powerless to order remand of the case. Nor is it that the court is bound by any report and plan submitted by the Advocate commissioner because, there was no request to set it aside.

13. Having heard the learned counsel on both sides and having regard to the fact situation as revealed by the records produced, I am inclined to think remand of the case is justified. But I make it clear that it is open to the parties to amend their pleadings appropriately and that respondent shall not be confined in her request for amendment of the plaint to what is stated in I.A. No. 855 of 2006. I also make it clear that it is open to the parties or any of them to request the trial court to get the properties measured as per the old survey also if such a course if possible. It is open to the parties to file their objection to Exts. C1 to C2(a) or the report and plan that may be obtained based on the measurement of the properties as per the old survey. I make it clear that I have not expressed any opinion regarding the merit of the contentions the parties have raised and that the observations made by me based on Ext. C2(a) is no indication as to the mind of this court regarding the Correctness of the contentions the parties have raised.

14. The substantial questions of law framed are answered as above.

The appeal is dismissed with the directions and observations made above and without any order as to the costs.