JUDGMENT : EASWARAN S., J. The plaintiff aggrieved by the concurrent findings in O.S No.455/2000 on the files of the Principal Munsiff Court, Kochi and in A.S No.104/2004 on the files of the Sub Court, Kochi, approached this Court with the present appeal. 2. The brief facts necessary for the disposal of the appeal are as follows:- The plaint schedule property having an extent of 13 cents and 104 ½ square feet together with structures were obtained by the plaintiff as per Sale Deed No.2446/1981. As per Sale Deed No.109/1989 dated 10.01.1989, an extent of 73.95 square meter was sold in favour of one Pakkai. On 27.04.1989, the plaintiff and defendants entered into an agreement of sale of 5 cents, together with a building for a total sum of Rs.1 lakh. However, it is contended that at the time of registration, the defendants wanted only the building situated in the property and therefore a Sale Deed No.1488/1989 was executed, transferring right title and interest over 1 cent for a sum of Rs.49,600/-. However, the plaintiff later found out that there is a mistake in the extent of property in Sale Deed No.1488/1989. Therefore, the suit was filed for declaration of title, recovery of possession and injunction, stating that the defendants had only derived right title over 1 cent of land as per Sale Deed No.1488/1989. The defendants entered appearance and contested the case and contended that in an earlier suit as O.S No.93/1993, the Munsiff Court, kochi, had found the possession of the defendants over entire extent of property and in the said suit, the plaintiff herein contended that the defendant/ the plaintiff therein had only title over an extent of 1 cent. Though, in a suit for injunction, the question of title was gone into and it was found that the defendants were in possession, having title over 5 cents of land. The said judgment was also confirmed by the Lower Appellate Court. It was further contended that the suit was barred by limitation. The plaintiff, subsequent to the execution of the sale deed in favour of the defendants, had settled the balance property in favour of his daughter as per Settlement Deed No.2860/1990 dated 25.08.1990 and in the said Settlement Deed it is specifically mentioned that, what is transferred in the favour of the daughter of the plaintiff is the balance 7 cents. The plaintiff, subsequent to the execution of the sale deed in favour of the defendants, had settled the balance property in favour of his daughter as per Settlement Deed No.2860/1990 dated 25.08.1990 and in the said Settlement Deed it is specifically mentioned that, what is transferred in the favour of the daughter of the plaintiff is the balance 7 cents. Therefore, the defendants prayed for dismissal of the suit. On behalf of plaintiff, Exts.A1 to A18 were produced and PW1 to PW3 were examined. On behalf of defendants, Exts.B1 to B10 were produced and DW1 was examined. Exts.C1 to C2(c) are the reports and sketches prepared and submitted by the Advocate Commissioner. The trial court on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff has not made out a case and therefore dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiff preferred A.S No.104/2004 and the Lower Appellate Court found that the present suit was barred by res judicata, inasmuch as the issue was concluded in O.S No.93/1993. Accordingly, dismissed the appeal against which the present Regular Second Appeal is preferred. 3. When the appeal was admitted to file, by order dated 29.05.2012, this Court framed the following substantial questions of law:- i) Has not lower appellate court committed an error of law in proceeding as though the extent of property conveyed by the document of title of the defendant cannot be re-agitated as a suit based on title? (ii) Is lower appellate court justified in ignoring the legal impact of the agreements for sale with Philomina and defendant and the consideration recited therein as relevant for determining the extent conveyed by the disputed document of title? (iii) In view of the admission of defendant that plaintiff is left with 8.359 cents, is it not legal and proper to conclude that only one cent was assigned by the plaintiff to defendant? 4. Heard Shri.S.V.Balakrishna Iyer, learned Senior Counsel appearing on behalf of the appellant assisted by Smt.Anusree B and Shri.S.Sharan, the learned counsel appearing for the respondents. 5. Shri.S.V.Balakrishna Iyer, the learned Senior Counsel for the appellant would point out that going by the site measurements in Ext.B1 sale deed, it is clear that only an extent of 1 cent has been transferred in favour of the defendants. 5. Shri.S.V.Balakrishna Iyer, the learned Senior Counsel for the appellant would point out that going by the site measurements in Ext.B1 sale deed, it is clear that only an extent of 1 cent has been transferred in favour of the defendants. It is the specific case of the learned Senior Counsel that the Lower Appellate Court could not have entered into a finding as regards the maintainability of the suit on the ground that it is barred by res judicata. Reliance is place on the decision of this Court in S.A No.487/1999 dated 24.11.1999, wherein the plea of the plaintiff to file a fresh suit on title was left open and the findings rendered in the earlier suit was held to be not binding upon the parties. It is further submitted that the Advocate Commissioner could not identify the extend of property held by the defendants and therefore, the courts below ought not have dismissed the suit. 6. Per contra, the learned counsel appearing for the respondents would point out that the findings rendered by the courts below are perfectly legal and that the concurrent findings of facts cannot be re-appreciated by this Court in an appeal under Section 100 of the Code of Civil Procedure. It is submitted that, the findings rendered by the Lower Appellate Court are just and proper and that Ext.B2 settlement deed would specifically show that no other property has been left at the hands of the plaintiff, since he has conveyed the entire extent of 7 cents, which was in possession and therefore the present suit was rightly dismissed. 7. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the courts below and the records of the case. 8. The trial court proceeded to dismiss the suit mainly relying on the contents of Ext.B2 Settlement Deed. Though in the report, the Advocate Commissioner had specifically stated that he could not identify the property, by the measurements contained in Ext.B1 Sale Deed, the trial court found that inasmuch as the plaintiff had not sought for any measurements of the property covered by Ext.B2 Settlement Deed, the claim cannot be sustained. However, the said reasoning cannot be sustained in the light of the fact that the Advocate Commissioner in his report had specifically stated that Ext.B1 Sale Deed contained only measurement to the three sides. However, the said reasoning cannot be sustained in the light of the fact that the Advocate Commissioner in his report had specifically stated that Ext.B1 Sale Deed contained only measurement to the three sides. Both parties were at serious variance, as regards the point from which the measurements ought to have commenced. Therefore, in the light of the specific findings of the Advocate Commissioner regarding his inability to identify the property of the defendants, the trial court should have remitted the report of the Advocate Commissioner requiring him to measure out the property with reference to Ext.B2, because, it is the specific case of the defendants that after execution of Ext.B2, there is no other property left out. Merely because the plaintiff did not seek a prayer to measure out the property covered by Ext.B2, that by itself will not denude the power of the trial court while considering the evidentiary value of the report of the Advocate Commissioner. The trial court is not powerless to order the re-measurement of the property before choosing to accept the report of the Advocate Commissioner as evidence under Order 26 Rule 10(2) of the Code of Civil Procedure. 9. On appeal, the Lower Appellate Court, compounded the problem by holding that the suit is barred by res judicata. This finding is not only perverse but goes against the judgment of this Court in S.A No.487/1999, wherein this Court permitted the appellant to withdraw the appeal preferred against the concurrent findings in O.S No.93/1993 and in A.S No.75/1996 with liberty to institute a suit on the title, since in a suit for mandatory and prohibitory injunction, issue regarding the title ought not have been tried. It was made clear that any finding with regard to the title cannot be binding upon the parties. In the light of the observations contained in the judgment dated 24.11.1999 in S.A No.487/1999, the Lower Appellate Court could not have, under any stretch of imagination found that the suit was barred by res judicata. Therefore, it is inevitable for this Court to find that the Lower Appellate Court was devoid by extraneous consideration. 10. Having found that the present suit is not hit by the principles of res judicata, then the question to be considered by this Court is whether the defendants have succeeded in establishing the identity of the plaint schedule property. Therefore, it is inevitable for this Court to find that the Lower Appellate Court was devoid by extraneous consideration. 10. Having found that the present suit is not hit by the principles of res judicata, then the question to be considered by this Court is whether the defendants have succeeded in establishing the identity of the plaint schedule property. It is in this context that, the report of the Advocate Commissioner has to be looked into. The Advocate Commissioner, while inspecting the plaint schedule property was specifically asked to identify the extent of land stated in Sale Deed No.1488/1989. In answer to point No.7 in his report, the Advocate Commissioner noted as follows:- 11. Read as a whole, the report of the Advocate Commissioner probabilise the case of the plaintiff. But, however, as rightly found by the trial court, in the absence of any attempt to measure out the property covered by Ext.B2 Settlement Deed, the dispute involved in the lis could not have been resolved. Therefore, this Court finds that a remand to the trial court for a fresh consideration of the suit is inevitable, because, both the courts below have not properly adverted the issues in the correct perspective. 12. It is further pertinent to note that the defendants claimed that in the pursuance of yet another agreement of sale that Ext.B1 Sale Deed was executed. Pertinently, the defendants did not produce the said Agreement of Sale, which was necessary to correctly appreciate the contention of the defendants that what was intended to be conveyed to them was the entire 5 cents. Going by the documentary evidence available in the present case, it is not possible to confirm that the plaintiff intended to convey the entire 5 cents of property in his favour. 13. Resultantly, answering the questions of law in favour of the appellant, it is held that the Lower Appellate Court could not have dismissed the suit as one not maintainable, because of the principles of res judicata. Accordingly, vacating the findings of the courts below, the appeal is allowed by way of remand. The judgment in O.S No.455/2000 on the files of the Principal Munsiff Court, Kochi as confirmed in A.S No.104/2004 on the files of the Sub Court, Kochi is thus set aside. O.S No.455/2000 will stand restored to the files of the Principal Munsiff Court, Kochi. The judgment in O.S No.455/2000 on the files of the Principal Munsiff Court, Kochi as confirmed in A.S No.104/2004 on the files of the Sub Court, Kochi is thus set aside. O.S No.455/2000 will stand restored to the files of the Principal Munsiff Court, Kochi. The plaintiff will be at liberty to move an appropriate application for appointment of an Advocate Commissioner, who shall once again measure out the property with reference to Exts.B1 Sale Deed and B2 Settlement Deed and also the prior deed of the plaintiff. In order to enable the parties to work out the directions in the present judgment, they are directed to appear before the Principal Munsiff Court, Kochi, on 04.08.2025. Since the suit is of the year 2000, the Principal Munsiff Court, Kochi, is directed to dispose of the suit as expeditiously as possible at any rate before the closure of the courts for Christmas vacation. The appeal is allowed as above. No cost.