Judgment :- P.R. Shivakumar, J. The unsuccessful plaintiff in the trial Court who also lost the battle in the first appeal before the lower appellate Court has come forward with this second appeal. 2. An extent of 16.18.5 hectares of land comprised in Resurvey No.50/3 in Mancode Village, Kanyakumari District, classified in the resurvey as assessed waste dry land is the subject matter of the dispute. The suit was filed by the erstwhile Vaikundam Rubber Company Limited, Trivandrum represented by its General Manager for a declaration of its title and exclusive possession and enjoyment over the property described in the plaint schedule and for a consequential permanent injunction restraining the respondent/defendant from interfering with or disturbing the peaceful possession and enjoyment of the appellant/plaintiff in respect of the suit property. 3. The plaint averments, in brief, are as follows: An extent of 1137.85 acres in Kaliel Village absolutely belonged to the appellant/ plaintiff and the same was in exclusive possession and enjoyment of the plaintiff. When Katiel Village was bifurcated and Mancode Village was carved out of a portion of Kaliel Village, the Revenue Authorities included the suit property within the boundaries of the newly created Mancode revenue village and assigned R.S. No.50/3. The entire extent of 16.18.5 hectares comprised in R.S. No.50/3 of Mancode village (newly created) was erroneously classified by the Revenue Authorities as assessed waste dry land belonging to the Government. This was done on the sole ground that the same was included in Mancode Village. The suit property and the adjoining land formed part of one and the same estate and they were originally within the old state of Trivancore. The estate was purchased by one Sir Daniel Hamilton on 6.11.1088 of Malayalam Era (equivalent to 19.6.1913 of the English calendar) who effected improvements by planting rubber, coconut, aracanut, mango, tamarind and other trees. On 17.4.1924, Sir Daniel Hamilton sold the same to one Mr. Thomas Patrick Madden Alexander. From Thomas Paltriok Madden Alexander, Vaikundan Rubber Company Limited, a company incorporated in Ceylon purchased the said property on 5.9.1103 of Malayalam era (equivalent to 17.4.1928 of English calendar). When the Ceylon company was liquidated, the entire properties of the said company were transferred to Vaikundam Rubber Company Limited, Trivandrum, the original plaintiff, by virtue of a registered deed dated 21.3.1122 of Malayalam Era (equivalent to 7.11.1946 of English calendar). When the Ceylon company was liquidated, the entire properties of the said company were transferred to Vaikundam Rubber Company Limited, Trivandrum, the original plaintiff, by virtue of a registered deed dated 21.3.1122 of Malayalam Era (equivalent to 7.11.1946 of English calendar). The total extent of land thus conveyed to the original plaintiff, namely Vaikundam Rubber Company Limited in Kaliel Village was 1312.11 acres. Out of the said extent, the Government acquired an extent of 175.27 acres for Chittar Pattanamkal Scheme and the balance area of 1137.85 acres in Kaliel Village continued to be in the possession and enjoyment of the plaintiff. As per the land records of old Travancore State, only an extent of 22 cents in S. No.1398/14 had been classified as assessed waste dry land. Subsequently, the old revenue village Kaliel was bifurcated and Mancode revenue Village was carved out of a portion of the area which was originally with Kaliel Village. During the village bifurcation, without issuing notice to the plaintiff, the Revenue Authorities wrongly classified the suit property as assessed waste dry land for the simple reason the said property came within the newly formed Mancode village. The remaining portion of the estate lying within Kaliel Village and the suit property included within Mancode village are consecutive and they form part of one and the same estate. The entire extent including the suit property was in continuous possession and enjoyment of the plaintiff for more than 80 years. Rubber plantations were made in the plaint schedule property 49 years prior to the filing of the suit. As the said rubber plants became old, requiring replacement by new plants, the plaintiff on 17.5.1993 attempted to cut and remove old rubber trees standing in the plaint schedule property for replacement by new plants. At that point of time, the plaintiffs men were prevented by the village officials of Mancode village claiming that the land belonged to the Government. Therefore, after issuing a necessary notice under Section 80 of the Civil Procedure Code on 18.5.1993 which was received by the defendant on 19.5.1993, the plaintiff was constrained to lay the suit for the above said reliefs. 4. Therefore, after issuing a necessary notice under Section 80 of the Civil Procedure Code on 18.5.1993 which was received by the defendant on 19.5.1993, the plaintiff was constrained to lay the suit for the above said reliefs. 4. The suit was resisted by the Government who is the respondent herein/defendant in the suit, by filing a written statement which contains the following averments: The plaintiff, who owned patta land to an extent of more than 1000 acres in Kaliel village, encroached upon an extent of 16.18.5 hectares of assessed waste dry poramboke land comprised in Survey No. 50/3 of Mancode Village and annexed the same with the above said patta land of the plaintiff. As the said encroachment was unauthorised, `B memo was issued and `B memo charges were levied. Without any protest, the plaintiff paid a sum of Rs. 18,128.20 and a further sum of Rs. 12,216.30 for the faslis 1401 and 1402 respectively towards `B memo charges. All the properties belonging to the plaintiff are within the area of Kaliel village and no part of Mancode village belongs to the plaintiff. The plaintiff cannot claim title to any part of the land included in the area of Mancode village. The resurvey operations were carried on in accordance with the rules and regulations framed for the same and on completion of resurvey, Settlement Authorities issued notices to all the pattadars to make representations in respect of the defects, if any, found by them in the resurvey and settlement Some of the aggrieved persons filed complaints and got the mistakes committed by omissions and commissions rectified. If at all the plaintiff had got any objection for the resurvey, it should have filed objections before the survey and settlement authorities and got the defects rectified then and there, itself. Having not done so, the plaintiff chose to make a false allegation. that the resurvey was not carried on in accordance with rules and regulations. The plaint schedule land was originally a poramboke land and no new classification was made during bifurcation of the village. The records of erstwhile Travancore State are not available. An extent of 22 cents had been, admittedly classified as assessed waste dry land in the records of Travancore State itself. That being so, during the resurvey, as it was found that the adjoining area was also assessed waste dry land as per the old records. The records of erstwhile Travancore State are not available. An extent of 22 cents had been, admittedly classified as assessed waste dry land in the records of Travancore State itself. That being so, during the resurvey, as it was found that the adjoining area was also assessed waste dry land as per the old records. The suit property was correctly classified as assessed waste dry land belonging to the Government. All the trees standing thereon belong to the Government and the plaintiff having encroached upon the Government poramboke land for which `B memo was issued and having paid `B memo charges including tree tax without any objection, could not question the correctness of the resurvey and classification of the suit property into an assessed west dry land belonging to the Government. Hence the plaintiff was not entitled to any of the reliefs prayed for in the suit. 5. The trial Court framed as many as four issues and conducted trial in which P.W.1 was examined as the sole witness and Exhibits A-1 to A-51 were marked on the side of the plaintiff. D.W.I was the sole witness examined and Exhibits B-1 to B-7 were the documents marked on the side of the defendant/respondent. The report and plan submitted by the Advocate Commissioner appointed by the trial Court were marked as Exhibits C-1 and C-2. At the conclusion of trial, the trial Court rejected the claim of the plaintiff and dismissed the suit with cost by its judgment and decree dated 27.2.1995. As against the judgment and decree of the trial Court, the original plaintiff Vaikundam Rubber Company Limited, Trivandrum filed an appeal on the file of the District Court, Kanyakumari District at Nagercoil in A.S. No. 21, of 1995. The same was also dismissed by the learned District Judge by his judgment dated 22.7.1996 confirming the judgment and decree of the trial Court. Hence the present second appeal. 6. During the pendency of the second appeal, there was demerger of the original plaintiff company, namely Vaikundam Rubber Company Limited, Trivandrum into 1) Vaikundam Plantatiods Limited, 2) Vaikundam Agro Tech Limited and 3) Vaikundam Rubber Company Limited and the demerger was approved by the High Court of Kerala in C.P. No. 42 of 1999 by order dated 29.2.2000. 6. During the pendency of the second appeal, there was demerger of the original plaintiff company, namely Vaikundam Rubber Company Limited, Trivandrum into 1) Vaikundam Plantatiods Limited, 2) Vaikundam Agro Tech Limited and 3) Vaikundam Rubber Company Limited and the demerger was approved by the High Court of Kerala in C.P. No. 42 of 1999 by order dated 29.2.2000. Since the suit property was allotted to Vaikundam Agro Tech Limited in the internal adjustment at the time of demerger, the name of Vaikundam Agra Tech Limited has been substituted for Vaikundam Rubber Company Limited as the appellant in this second appeal. 7. This Court heard the arguments advanced by Mr. T.R. Rajaraman, learned senior counsel appearing for the appellant and also by Mr. D. Gandhirai, learned Additional Government Pleader appearing for the respondent and also perused the materials available on record, including the judgments of the lower Courts. 8. Claiming title to the suit properties and contending the suit properties to be in exclusive possession and enjoyment of the plaintiff Company (Vaikundam Rubber Company Limited) for well over a period of 80 years, the plaintiff Company approached the trial Court praying for the relief of declaration of its title and possession of the suit property and for a consequential permanent injunction not to cause any interference with its peaceful possession and enjoyment of the suit property. According to the appellant, a total extent of 1312.11 acres in the erstwhile State of Travancore belonged to the appellant, out of which an extent of 175.27 acres of land was acquired by the Government for Chjttar Pattanamkal Scheme, thus leaving a balance of 1137.85 acres to remain with the appellant. Admittedly, the entire extent was previously within Kaliel Village and subsequently, in the resurvey conducted by the Government of Tamil Nadu in Kanyakumari District. Kaliel Village was bifurcated into Kaliel Village and Mancode Village. While fixing the boundary between Kaliel Village and Mancode Village, according to appellant s case, a portion of the above said estate belonging to the appellant, namely an extent of 16.18.5 hectares, was included in Mancode Village and the same was classified as assessed waste dry land belonging to the Government and assigned resurvey No. 50/3 of Mancode Village. The suit has been filed in respect of the said 16.18.5 hectares of land. The suit has been filed in respect of the said 16.18.5 hectares of land. According to the appellant, while bifurcating the old Kaliel Village into Kaliel Village and Mancode village without any basis, whatsoever, the Survey and Settlement Authorities simply classified the suit land into assessed waste dry land on the sole ground that the same fell within the boundary of newly created Mancode Village. 9. On the other hand, it is the case of the Governments figuring as respondent/defendant that the appellant Company, who is the owner of more than 1,000 acres in Kalieli village, encroached upon the suit property which is abutting its patta land an annexed the same with its patta land. 10. The learned senior counsel appearing for the appellant argued that the Courts below erred in coining to the conclusion that the plaintiff Company, the predecessor of the appellant had. not proved that the suit property belonged to the plaintiff Company by correlating the old and new survey numbers, whereas the defendant, being the Government and having all means to produce the records relating to old and new survey numbers, correlation registers and thus proving the correlation between the resurvey number and the old survey number, had not chosen to produce the same and that the said method adopted by the Courts below was against the rule of evidence requiring the person who is in a better position to prove a particular fact shall have the burden of proving the same. It is the further contention of the learned senior counsel appearing for the appellant. that though the plaintiff Company had chosen to approach the Court for a declaration of its title to the suit property within two years after the Government started issuing `B memo, the Courts below had erroneously non suited the plaintiff Company holding that the plaintiff Company admitted the title of the Government by accepting B memo and paying penal tax under `B memo without raising any protest. The learned senior counsel also contended that mere payment of penal assessment of land revenue under `B memo would not amount to any estoppel and that in the instant case, the necessary ingredients constituting estoppel were not proved to exist by the re-spondent/defendant. The learned senior counsel also contended that mere payment of penal assessment of land revenue under `B memo would not amount to any estoppel and that in the instant case, the necessary ingredients constituting estoppel were not proved to exist by the re-spondent/defendant. In order to constitute an estoppel, according to his submissions, there must be a positive representation or silence indicating acceptance of a representation made by another person, such representation should be believed by the other person, who wants to plead estoppel and on such belief, the said person should have acted to make it inequitable, thereafter, to deny the correctness of the representation. 11. In this case, as rightly pointed out by the learned senior counsel appearing for the appellant, there is no representation on the part of the plaintiff Company which made the respondent/defendant believe and act on the basis of such belief. The mere payment of `B memo charges will not amount to any such representation based on which the Government (defendant) could be said, to have acted. There are ample evidence to prove that the plaintiff Company was, and at present the appellant Company is in possession and enjoyment of the suit property. Especially the report and plan submitted by the Advocate Commissioner appointed in the trial Court, marked as Exhibits C-1 and C-2, clearly establish that, though the suit property, having an extent of 16.18.5 hectares, is shown to lie within the area allotted to, Mancode Village in the resurvey, the same forms an integral part of the rest of the estate of the plaintiff Company, the predecessor of the appellant Company (Vaikundam Agro Tech Limited) that the entire area has been enclosed on all sides, by compound wall and fence and that the rubber trees found in the suit property as well as the rest of the area comprised in Vaikundam Estate are of equal age, say about 45-60 years. It is the clear case of the plaintiff Company, the predecessor of the appellant Company, that the rubber plantations were made by one Mr. Thomas Patrick Madden Alexander that the same were maintained by the plaintiff Company for several years after its purchase and that when the trees became aged more than 45 years, the same had to be cut and removed for replanting with new rubber saplings, the Government officials obstructed and prevented the plaintiffs men from doing so. Thomas Patrick Madden Alexander that the same were maintained by the plaintiff Company for several years after its purchase and that when the trees became aged more than 45 years, the same had to be cut and removed for replanting with new rubber saplings, the Government officials obstructed and prevented the plaintiffs men from doing so. It is a known fact rubber plants wont grow naturally and that they have to be planted and maintained. The Tahsildar, Vilavancode Taluk, the sole witness (D.W.1) examined on the side of the defendant would admits in his evidence that the entire estate including the suit property is enclosed on all four sides by a compound wall that there were old rubber trees in the suit property and that when the plaintiff s men tried to cut and remove the old trees for replanting with new rubber plants, the Government officials prevented the plaintiff from doing so. Apart, from the said admission, D.W.1 has also admitted that water pipes have been laid through out the entire estate including the suit property for irrigation purposes. There is a clear and candid admission by D.W.1 that the suit property, at no point of time, remained a waste land and on the other hand continuously rubber plantations were there. The said admission made by D.W.1 corroborates the evidence of P.W.1 to some extent in this regard. In the light of the above said admission made by D.W.1, the sole witness on the side of the defendant, the case of the appellant that there were rubber trees aged more than 45 years in the suit property and that when the same were sought to be cut and removed by the plaintiff, for planting new sapling, the same was objected to by the Village Administrative Officer seem to be quite probable. As rightly pointed out by the learned senior counsel for the appellant, the Courts below have not considered the above said admission made by D.W.1 and they were carried away by the fact that the plaintiff was not able, to produce documentary evidence to prove extent of land sold and acquired by the Government and the remaining extent of land available with the plaintiff Company. 12. 12. Under a sale deed dated 7.11.1946, a copy of which has been marked as Exhibit A-9, the plaintiff Company, the predecessor of the appellant had purchased a total extent of 1312.11 acres comprised in several survey numbers, all in old Kaliel Village. Out of the said extent, an extent of 175.27 acres was said to be acquired by the Government for Chittar Pattanamkal Scheme. The remaining extent, viz., 1137.85 acres including the suit property, according, to the appellants case, continued to be in possession and enjoyment of the plaintiff. It is true that though the plaintiff has proved the purchase of an estate with an extent, of 1312.11 acres under the original of Exhibit A-9, the plaintiff has not produced documents to show the extent of land acquired by the Government and the lands sold by the plaintiff Company. Of course, proving the total extent purchased and the extent over which the plaintiff company subsequently lost its title either by voluntary alienation or due to compulsory acquisition by the Government and the remaining extent available with the plaintiff is one way of proving that the suit property is part and parcel of Vaikundam Estate purchased under Exhibit A-9. But the same cannot be the only way in which the fact in issue in this case could be resolved. The plaintiff had also pleaded perfection of title by adverse possession based on uninterrupted possession and enjoyment of the suit property for more than 80 years as an integral part of the Vaikundam Estate. The only basis on which the respondent/defendant claims title to the property as an assessed waste dry land is that the property was tagged with Mancode Village, when the old Kaliel Revenue Village was bifurcated and new Mancode Revenue Village was created. No document has been produced on the side of the respondent/defendant to show that before the resurvey in which new Mancode Revenue Village was established, the suit property had been classified as waste dry land. 13. On the other hand, as rightly pointed out by the learned senior counsel for the appellant, there are admissions on the part of D.W. 1 that before such village bifurcation, the suit property was not a waste dry land and had been a rubber estate, for quite a long period. 13. On the other hand, as rightly pointed out by the learned senior counsel for the appellant, there are admissions on the part of D.W. 1 that before such village bifurcation, the suit property was not a waste dry land and had been a rubber estate, for quite a long period. There is also an admission that the rubber plants found in the suit property became old requiring replacements by new plants. In view of the said admission, it is quite probable that the rubber plants found in the suit property are more than 45 years old. Simply because the plaintiff ad as miffed that an extent of 22 cents in old Survey and No. 1398/14 had been classified as waste dry land during the reign of the Erstwhile State of Travancore, the Courts below have made an inference that a larger extent, namely 16.18.5 hectares would have been waste dry land. The same seems to be quite illogical. Admittedly, the respondent Government is in a better position than the plaintiff to produce the records relating to old and new survey numbers and the correlation registers and prove that the disputed suit property was a waste dry land. But the respondent Government has not chosen to do so. A copy of the correlation register marked as Exhibit B-5 equates old S. No. 1398/14 A to R.S. No. 50/3 (part) . But extent is not shown in it. What is the corresponding old survey number for the remaining part of R.S. No. 50/3 is not known. 14. The learned Special Government Pleader, arguing on behalf of the respondent, submitted that since the resurvey for the bifurcation of old Kaliel Village into Kalliel Village and Mancode Village had already been completed after giving notice of the conclusion of the resurvey to all persons concerned including the plaintiff, the classification of the land could not be challenged in the civil Court. On the other hand, the learned senior counsel for the appellant, pointing out the admission, made by D.W.1 that no personal notice was given to the plaintiff either before the resurvey or on completion of the survey fixing the boundaries of Kaliel Village and Mancode Village and classifying the suit property as an assessed waste dry land, contended that the plaintiffs right to establish his title in the civil Court was not lost. The learned senior counsel for the appellant contended further that though D.W.1 would state that public notice was given even proof of the same had not been produced and that hence the above submission made by the learned Special Government Pleader that the suit filed after the lapse of 3 years from the date of completion of survey, per Section 14 of the Tamil Nadu Survey Boundaries Act should be rejected as unsustainable. 15. No doubt, as per Section 5 of the Tamil Nadu Survey and Boundaries Act, 1923, the State Government or subject to the control of the State Government, any officer or authority to whom such power may be delegated by it may by notification order a survey of any Government land or of any boundary of such land or of the boundary forming the common limit of Government land and land that is not Government land. In this case, the main dispute is whether the suit property is Government land and where lies the boundary of the plaintiffs land (Vaikundam Estate) and the Government land, if any. Section 9(2) of the said Act mandates that after every decision taken by the Survey Officer to determine and record any boundary as undisputed boundary, notice of such decision should be given, in the prescribed manner to the registered holders of the lands, the boundaries of which may be affected by such decisions. In this case, though the boundary between the patta land of the plaintiff Company and the assessed waste land allegedly belonging to the Government was sought to be fixed, there is no evidence to show that notice under Section 9(2) after fixing the boundary was given to the plaintiff company. Section 13 of the said Act also requires notification of the completion of demarcation of boundary in the District Gazette, apart from pasting a copy of such notification in the village chavadi. Though Section 14 of the said Act is to the effect that a suit to set aside or modify the determination published in the notification should be filed within three years from the date of notification, the said restriction is interpreted to apply only in case of proof of notice having been served on the affected land holder. 16. In P.M S. Kandaswamy Vs. 16. In P.M S. Kandaswamy Vs. Province of Madras through the District Collector of Ramnad at Madurai and Another (1952) 1 MLJ 804 , it was held that a party concerned by an adverse survey, to whom no notice was given of the survey, was not bound to file a suit within three years to set aside the order of the survey officer, because he had no notice of the survey and the order on it could not be said to be correctly passed under Section 13 of the Madras Survey and Boundaries Act to be binding on that party. Following the said decision, a Division Bench of Madras High Court in State of Madras Vs. Kasthuri Ammal 1974 TLNJ 145), held that a party concerned by an adverse survey, to whom no notice of survey war given, was not bound to file a suit within three years to set aside the order of the Survey Officer. 17. The relevant portion of the said judgment of the Division Bench is as follows: "Even assuming for arguments sake that survey operations were conducted in 1919 and those operations resulted in Survey No. 48 being labelled road poromboke, such actions cannot affect the plaintiff in any manner unless the defendants establish that the predecessor in interest of the plaintiff was given due notice of the result of the survey and the latter acquiesced in the correctness of the operations. In P. MS. Kandaswamy Vs. Province of Madras through the District Collector of Ramnad at Madurai and Another (supra), this Court has categorically stated that a party concerned by an adverse survey, to whom no notice was given of the survey, is not bound to file a suit within three years to set aside the order of the Survey Officer because he had no notice of the survey and the orders on it cannot be said to be correctly passed under Section 13 of the Madras Survey and Boundaries Act and binding on that party." 18. The said judgment squarely applies to the facts of the case on hand. The said judgment squarely applies to the facts of the case on hand. In this case, there is candid admission on the part of D.W.1 that not only no notice was personally served: under Section 9(2) of the Act, but also there is no proof of effecting public notification of the result of the resurvey in Which Kaliel Village was bifurcated into Kaliel Village and Mancode Village and the boundary of the suit property was fixed. As such, this Court is able to find substance in the contention of the learned senior counsel for the appellant that the suit of the plaintiff to establish his title to the suit property is not barred in so far as the respondent/defendant (Government) not only failed to serve notice on the plaintiff regarding the proposed survey before conducting survey/ but also failed to issue notice under Section 9(2) of the Act after the survey incorporating the decision taken by the survey officer fixing the boundary. Hence the objection to the suit on the ground that the plaintiff company has not approached the civil Court within three years from the date of publication of the resurvey cannot be sustained. 19. Under these circumstances, this Court comes to a conclusion that the approach made by the Courts below in this case has resulted in injustice to the plaintiff Company, the predecessor .of the appellant Company. The defendant was in a better position to produce documents clinching the issue, but the defendant failed to produce the same. There are admissions to the effect that the suit property never happened to be a waste land on ground and that through out rubber plantations were there. As such, the decision made by the Courts below, non-suiting the plaintiff, the predecessor of the appellant Company, according to the considered view of this Court, has resulted in injustice and denial of justice, to the plaintiff. As such, the decision made by the Courts below, non-suiting the plaintiff, the predecessor of the appellant Company, according to the considered view of this Court, has resulted in injustice and denial of justice, to the plaintiff. Though the plaintiff might have failed to prove the extent of land sold by the plaintiff and admitted the extent of land acquired by the Government by producing documentary evidence and thereby, prove the remaining extent available with the plaintiff, the defendant has to be equally blamed for not producing the relevant revenue records relating to old and new survey numbers and the correlation registers to prove that the suit property was a waste dry land and the same was encroached upon by the plaintiff Company. The learned Special Government pleader appearing for the respondent has also admitted that there is failure on the part of the defendant also to produce the necessary documents for proving that the suit property was a waste land even before the bifurcation of Kaliel Village into Kaliel Village and Manoode Village. Under these circumstances, this Court is of the view that the interest of justice shall be met by setting aside the judgments of the Courts below and remitting the matter to the trial Court with a direction for fresh disposal of the case after giving an opportunity to both parties to adduce, additional evidence in respect of the above said aspects and after getting a fresh report from the Commissioner already appointed or a new Commissioner to be appointed to measure the entire Vaikundam Estate to find out whether the suit property was part and parcel of the Vaikundam Estate purchased under the original of Exhibit A-9. Before parting with the case, this Court wants to point out yet another aspect which will provide additional reason justifying the remand of the case for fresh disposal. Exhibit A-2, A-4, A-7, A-8 and A-9 are xerox copies of registered sale deeds certified to be true copies by a notary public. Exhibits A-10 and A-11 are xerox copies of old and new patta. When the law provides for the issue of certified copies in respect of documents, certified copies can be admitted as secondary evidence in proof of the contents of the documents. But in such cases, certified copies issued by competent authorities alone are admissible. Admission of xerox copies attested by notary public is improper. When the law provides for the issue of certified copies in respect of documents, certified copies can be admitted as secondary evidence in proof of the contents of the documents. But in such cases, certified copies issued by competent authorities alone are admissible. Admission of xerox copies attested by notary public is improper. This aspect was not considered by the Courts below, probably because the other party might not have raised objection. For consideration of the above said aspect also, this Court, feels that it shall be just and necessary to remit the matter back to the trial Court 20. For all the reasons stated above, this Court comes to the conclusion that the appeal should be allowed in part, setting aside the judgments and decrees of the Courts below and the original suit should be remitted back to the trial Court for fresh disposal. 21. In the result, this Second Appeal is allowed in part. The judgment and decree of the lower appellate Court are set aside. A.S. No. 21 of 1995 on the file of the District Judge, Nagarcoil (lower appellate Court) shall stand partly allowed and the judgment and decree of the trial Court dated 27.2.1995 are set aside. O.S. No. 107 of 1993 is remitted back to the Sub Court, Kuzhithurai for fresh disposal. The learned trial Judge is directed to reissue the warrant to the Advocate Commissioner for measuring the total extent of the property admitted to be in possession and enjoyment of the plaintiff in Kaliel Village excluding the suit property, give an opportunity to both parties to produce additional evidence both oral and documentary in this regard and for correlating the old and new survey numbers and then decide the matter on merit. The trial Court is directed to dispose of the case as expeditiously as possible. The parties are directed to appear on 12.9.2007 before the trial Court (Sub Court, Kuzhithurai). However, there shall be no order as to payment of costs. Second appeal allowed.