JUDGMENT : EASWARAN S., J. The defendants 2 to 6 in O.S. No. 445 of 1995 in the files of the Principal Munsiff Court, Nedumangad are the appellants. The suit is for declaration, injunction and fixation of boundary. 1.1. The plaintiff traced the title through a Partition Deed executed in the year 1954 as per which, the 10 th schedule was allotted to him. The property included as the 10 th schedule in the Partition Deed is included as ‘A’ schedule to the plaint. The ‘B’ schedule property is the residential property situated in ‘A’ schedule. The plaintiff, having secured appointment in the military service, left for his employment and the 1 st defendant, the brother, was entrusted to look after the property in the absence of the plaintiff. The construction of the building in the property was done by expending the money sent by the plaintiff to his father and brother. After the marriage of his brother, when the plaintiff had to join back in the military service on expiry of leave, he requested the 1 st defendant and his family to stay along with his wife. Thereafter, when the plaintiff requested the defendants to vacate the building, it was refused and hence the suit for declaration and for direction for recovery of plaint ‘B’ schedule residential building. Subsequently, by order dated 10.11.2003 in I.A. No. 3745 of 2003, the prayer for fixation of boundary was also incorporated by amendment. 1.2. The defendants 1 to 6 resisted the claim contending that the plaintiff is not entitled for the declaration as prayed for on the ground that the description of the property is incorrect. It was further contended that the possession of defendants 1 to 6 over the plaint schedule property is adverse to that of the plaintiff and, therefore, they have perfected the title. All sharers under the Partition Deed had taken possession of their respective shares and that the plaintiff alone did not take possession of the property. The alleged entrustment to the 1 st defendant as regards the plaint schedule property was denied. It was further contended that 70 cents comprised in Re-Sy. No. 2549/2 was set apart for one Suseelamma, the sister of the plaintiff and the 1 st defendant as 7 th schedule in the partition deed. The alleged entrustment to the 1 st defendant as regards the plaint schedule property was denied. It was further contended that 70 cents comprised in Re-Sy. No. 2549/2 was set apart for one Suseelamma, the sister of the plaintiff and the 1 st defendant as 7 th schedule in the partition deed. The property of the plaintiff is situated on the southern side of the property allotted to Suseelamma and the 1 st defendant married the 2 nd defendant in the year 1960 and the 2 nd defendant is None other than the sister-in-law of Suseelamma. By mutual consent between the parties, the defendant came into possession of 70 cents allotted to Suseelamma in the 7 th schedule and thereafter, the 1 st defendant had put up a residential building in the aforesaid extent. It is further contended that, going by the Partition Deed, there is no such property as described in the plaint. 1.3. Defendants 7 to 9 remained ex parte and the 10 th defendant did not raise any claim over the plaint schedule property. On behalf of the plaintiff, Exts. A1 and A2 were produced and PW1 to PW3 were examined. Exts. C1, C1(a) and C1(b) are the reports and plan of the Advocate Commissioner. On behalf of the defendants, Exts. B1 to B4 and C2 were produced and DW1 to DW4 were examined. The Trial Court framed the following issues; “1. Whether the plaint schedule description is correct? 2. Whether the plaintiff has got title and possession over the plaint schedule property? 3. Whether the plea of adverse possession and limitation set up in the written statement is sustainable? 4. Whether the plaintiff is entitled to the declaration as prayed for? 5. Whether the plaintiff is entitled to recover possession of B schedule building from the defendants? 6. Whether the injunction prayed for is allowable? 7. Reliefs and costs? Addl. 8. Whether the suit is bad for non-joinder of necessary parties? Addl. 9. Whether there is any necessity to put up boundary on the northern side of A schedule property as prayed for in the plaint? If so, at whose costs?” 1.4. 6. Whether the injunction prayed for is allowable? 7. Reliefs and costs? Addl. 8. Whether the suit is bad for non-joinder of necessary parties? Addl. 9. Whether there is any necessity to put up boundary on the northern side of A schedule property as prayed for in the plaint? If so, at whose costs?” 1.4. The Trial Court, on appreciation of the oral and documentary evidence, came to the conclusion that 53 cents out of 93 cents in plaint ‘A’ schedule property is in the possession of the strangers as found by the Advocate Commissioner and as regards 40 cents, 6.75 cents falls under Sy. No. 2549/2 and 33.25 cents fall under Sy. No. 2549/3 and that there is no reference to the above survey number in the Partition Deed. Thus, it was concluded that the plaintiff could not establish the identity of the property and hence the relief for declaration and recovery of possession was declined. Accordingly, the suit was dismissed. Aggrieved, the plaintiff preferred A.S. No. 80 of 2004. The First Appellate Court on reappreciation of facts and evidence reversed the findings of the Trial Court and decreed the suit stating that when the defendants are not having a better claim in the property than the plaintiff, the plaintiff is entitled for the reliefs sought for. Aggrieved, the defendants 2 to 6 have come up in the present appeal raising the following substantial questions of law; “1. Whether first appellate court was justified in reversing the findings of the trial court on the failure of the plaintiff to identify the plaint schedule property, without adverting to Exhibits C1 report and C1(a) plan, when the property cannot be identified with reference to the description in Exhibit A1 partition deed? 2. Whether first appellate court was correct in awarding mesne profits without considering the evidence to fix the rate?” 2. Heard Sri. S. Sreekumar, the learned Senior Counsel for the appellants assisted by Sri. Deepak and Sri. T. Krishnanunni, the learned Senior Counsel for the 1 st respondent/plaintiff assisted by Smt. Meena A. 3. Sri. S. Sreekumar, the learned Senior Counsel appearing for the appellants, asserted before this Court that the First Appellate Court erred egregiously in allowing the appeal and decreeing the suit despite the infirmity attached to the claim of the plaintiff and that the plaintiff failed to prove the identity of the plaint schedule property. Sri. S. Sreekumar, the learned Senior Counsel appearing for the appellants, asserted before this Court that the First Appellate Court erred egregiously in allowing the appeal and decreeing the suit despite the infirmity attached to the claim of the plaintiff and that the plaintiff failed to prove the identity of the plaint schedule property. It is pointed out that the appellants are concerned only with 40 cents claimed by the plaintiff under ‘A’ schedule. It is further pointed out that, on measurement of the 10 th schedule to Ext. A1 Partition Deed, the Advocate Commissioner could find only 1 acre 6 cents and, therefore, the Advocate Commissioner could not have identified the property of the plaintiff alone. It was incumbent upon the Advocate Commissioner to have identified the entire extent of property covered by Ext. A1 Partition Deed and demarcate the property of each sharer. In the absence of any such identification, the report of the Advocate Commissioner cannot be accepted in evidence and the First Appellate Court completely misdirected itself in decreeing the suit, reversing the well-reasoned judgment and decree of the Trial Court. 4. Per contra, Sri. T. Krishnanunni, the learned Senior Counsel for the plaintiff would point out that insofar as the title of the plaintiff is concerned, the defendants 2 to 6 being the co-shares cannot dispute the title since they are signatories to Ext. A1 Partition Deed. The recourse adopted by the Advocate Commissioner was perfectly legal inasmuch as the request of the plaintiff to identify the entire property as per Ext. A1 Partition Deed was turned down by the Trial Court when I.A. 1819 of 2001 was dismissed on 15.12.2001. Therefore, the plaintiff had no other alternative but to seek for the measurement of the plaint schedule property with reference to Ext. A1 Partition Deed confining to the 10 th schedule. 5. I have considered the rival submissions raised across the Bar and I have perused the records of the case and also the judgments rendered by the Courts below. 6. Three reports of the Advocate Commissioners are available in the present case. The first report of the Advocate Commissioner which failed to identify the property was set aside by the Trial Court at the request of the plaintiff and a second Advocate Commissioner was appointed. The second Advocate Commissioner returned the warrant finding that the plaint schedule property is unidentifiable. Three reports of the Advocate Commissioners are available in the present case. The first report of the Advocate Commissioner which failed to identify the property was set aside by the Trial Court at the request of the plaintiff and a second Advocate Commissioner was appointed. The second Advocate Commissioner returned the warrant finding that the plaint schedule property is unidentifiable. Accordingly, a fresh Advocate Commissioner was deputed with the help of the Surveyor to identify and demarcate the plaint schedule property. While so, I.A. No. 1819 of 2001 was preferred by the plaintiff seeking measurement of the entire property covered by Ext. A1 Partition Deed in order to ascertain the exact lay and nature of the property. Unfortunately, the Principal Munsiff Court, Nedumangad dismissed the application by order dated 15.12.2001. Accordingly, when the third Advocate Commissioner proceeded to identify the property, he found that the property having an extent of 28 cents and 25 cents scheduled to the ‘A’ schedule to the plaint is in the possession of the strangers. For reasons best known to him, the plaintiff did not implead the third party in the suit. As far as the 40 cents of the property is concerned, the Advocate Commissioner found that a portion of the property is covered in Re. Sy. Nos. 2549/02 and 2549/03. The Trial Court found that since the aforesaid survey numbers are not included in the Partition Deed, the suit should fail. But, however, it is pertinent to mention that mere misdescription of the survey number by itself will not disentitle the plaintiff to maintain the suit for declaration of title especially since the property has been identified with reference to the boundaries mentioned in the Partition Deed. 7. It is in this context that this Court finds considerable force in the submissions of the learned Senior Counsel for the plaintiff that the defendants 2 to 6 cannot presumably deny the title of the plaintiff because they are also beneficiaries of Ext. A1 Partition Deed and that few of the co-sharers cannot deny the title of others. But then, the pertinent question before this Court is; whether the plaint schedule property has been properly identified or not? 8. It is pertinent to note that the specific ground raised by the respondent/plaintiff in his appeal is as regards the failure of the Advocate Commissioner to demarcate the properties covered by Ext. A1 as a whole. But then, the pertinent question before this Court is; whether the plaint schedule property has been properly identified or not? 8. It is pertinent to note that the specific ground raised by the respondent/plaintiff in his appeal is as regards the failure of the Advocate Commissioner to demarcate the properties covered by Ext. A1 as a whole. Therefore, it was all the more reason why the First Appellate Court should not have undertaken the exercise of ascertaining as to whether the identity of the plaint schedule property is made out from the report of the Advocate Commissioner. When the Advocate Commissioner measured the plaint schedule property with reference to the 10 th schedule to Ext. A1 Partition Deed, he found out that the total extent of property covered in Sy. No. 2549/02 is only 1 acre 6 cents. But, however, if the property allotted to the other sharers as well as the plaintiff is taken up together, it comes up by 1 acre 80 cents and, therefore, if the declaration as prayed for by the plaintiff is granted there will be reduction in shares as far as other co-sharers are concerned. This ought to have weighed the minds of the First Appellate Court before undertaking the exercise done by it. The First Appellate Court failed to address the crucial issue as regards the possible extent of reduction of the shares of other co-sharers and without addressing this issue, the First Appellate Court could not have decreed the suit as such. In a suit for declaration of title where the identity is under dispute at the instance of the defendants, it is not safe to conclude on the title of the plaintiff merely on the basis of the measurement of the property covered by the respective share of the plaintiff in a common partition deed. Ideally, the Trial Court ought to have allowed the application; I.A. No. 1819 of 2001 and ordered the measurement of the entire property covered by Ext. A1 Partition Deed. The failure on the part of the plaintiff to challenge the said order should not have been a reason for the Trial Court while addressing the issue. Moreover, the defendants have raised specific objections as regards the identity of the property as well as exercise undertaken by the Advocate Commissioner. A1 Partition Deed. The failure on the part of the plaintiff to challenge the said order should not have been a reason for the Trial Court while addressing the issue. Moreover, the defendants have raised specific objections as regards the identity of the property as well as exercise undertaken by the Advocate Commissioner. Under Order XXVI Rule 10(3) of the Code of Civil Procedure , it was incumbent upon the Munsiff to have adjudicated the objection and finally decide as to whether to accept the report of the Advocate Commissioner in evidence or not. From the perusal of the records and the proceedings of the Principal Munsiff Court, Nedumangad, this Court finds that such an exercise has not been undertaken by the Principal Munsiff Court and that the objection of the defendants 2 to 6, the appellants herein remains unadjudicated. 9. Thus, when the report of the Advocate Commissioner was riddled with the infirmities as discussed above, the First Appellate Court should not have undertaken the task of finding out as to whether the plaint schedule property has been identified properly or not and, therefore, this Court is not in a position to subscribe to the findings rendered by the First Appellate Court. 10. Necessarily, in the light of the discussion above, the substantial questions of law framed in the memorandum of appeal are to be answered in favour of the appellants. The consequences of which would necessarily entail in the dismissal of the suit. But, this Court cannot remain oblivious of the fact that the plaintiff is the sole sharer alone who is left without any property under Ext. A1 partition deed. At this point of time, the learned Senior Counsel for the appellants, Sri. S. Sreekumar, fairly submitted before this Court that his clients will not stand in the way of a remand and restoration of the suit in order to enable the Principal Munsiff Court, Nedumangad to depute an Advocate Commissioner to identify the entire extent of property covered by Ext. A1, a recourse to which, the learned Senior Counsel for the Plaintiff, Sri. T. Krishnanunni, also does not have any objection. Consequently, the judgment and decree in A.S. No. 80 of 2004 of the Sub Court, Nedumangad is set aside and a remand of O.S. No. 445 of 1995 on the files of the Principal Munsiff Court, Nedumangad is ordered. A1, a recourse to which, the learned Senior Counsel for the Plaintiff, Sri. T. Krishnanunni, also does not have any objection. Consequently, the judgment and decree in A.S. No. 80 of 2004 of the Sub Court, Nedumangad is set aside and a remand of O.S. No. 445 of 1995 on the files of the Principal Munsiff Court, Nedumangad is ordered. The O.S. No. 445 of 1995 shall stand restored to the files of Principal Munsiff Court, Nedumangad. The parties shall appear before the Principal Munsiff Court, Nedumangad on 06.10.2025. On appearance, the Principal Munsiff Court, Nedumangad shall depute the Advocate Commissioner to identify the plaint schedule property with reference to Ext. A1 partition deed and while undertaking the exercise, the Advocate Commissioner shall measure out the entire extent of the property covered by Ext. A1 partition deed with the help of the Taluk Surveyor and file a report. The parties shall be permitted to adduce further evidence, if so advised. Considering the fact that the suit is of the year 1995, the Principal Munsiff Court, Nedumangad is directed to expedite the Trial on a priority basis and dispose of the same at any rate before the closure of the Court for summer recess. Cost in the appeal made easy.