Thomas P. Joseph, J.

1. This appeal is brought from the judgment dated 16.07.2011 in A.S. No.12 of the Sub Court, Ottappalam. The lower appellate court set aside judgment and decree of the Munsiff's Court, Ottappalam in O.S. No.205 of 1998 and remitted the case for fresh decision after identifying the suit property with the assistance of an Advocate Commissioner.

2. The following substantial questions of law are framed for a decision.

(i) Is not there want of jurisdiction for the lower appellate court to remand the case to the trial court for identification of the property after the High Court has affirmed order of the trial court dismissing the application for identification of the suit property?

(ii) Could the lower appellate court validly re-open the order of trial court on the application after trial court's order was found to be legally sustainable and affirmed by the High Court?

(iii) Has not the issue of identification of plaint schedule property become res judicata by the High Court confirming the order passed by the trial court in I.A. No.2010 of 2001?

3. Respondents claimed title and possession of the suit property - 71 cents in Sy.No.3/3A and 3/3B of Shornur Village as per Exts.A2 and A3 (Ext.A1 is the prior document). They claimed to have purchased landlord's right over the said property as per Exts.A4 and A5. They alleged that the appellants are attempting to trespass into the said property and prayed for a decree for prohibitory injunction against trespass.

4. Appellants contended that the suit property is part of property obtained by the 1st appellant as per Ext.B1, Kanom assignment deed of the year, 1949. The 1st appellant purchased landlord's right over the said property as per Exts.B1 and B2. Appellants disputed title and possession claimed by the respondents and claimed that the suit property is not identifiable.

5. In view of the contention the appellants raised in the written statement regarding title to the suit property, learned Munsiff raised an issue regarding title. Respondents amended the plaint and paid court fee under Section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, "the Act").

6. The appellants filed application for the appointment of an Advocate Commissioner to identify the suit property. That application was allowed. They however, did not remit the batta ordered by the learned Munsiff. Respondents filed application to permit them pay the batta ordered by the learned Munsiff (on the application for commission preferred by the appellants). Learned Munsiff dismissed that application.

7. The parties went to trial. After evidence was recorded, the respondents filed I.A. No.2010 of 2001 for the appointment of an Advocate Commissioner to identify the suit property with reference to their documents of title. Learned Munsiff dismissed that application observing that since no dispute regarding identity of the property is involved, identification by the Advocate Commissioner is not necessary.

8. Respondents challenged that order in this Court in C.R.P. No.3115 of 2001. This Court, by order dated 13.03.2002 dismissed the revision observing that the suit being one for injunction, only question for decision is possession of the property and that if identification of the property was necessary, respondents should have moved the application earlier. Respondents filed R.P. No.437 of 2002 for a review of the order dismissing C.R.P. No.3115 of 2001. R.P. No.437 of 2002 was dismissed by order dated 13.02.2003. Later, learned Munsiff dismissed the suit for reasons including that in spite of there being a dispute regarding identity, respondents have not taken steps to identify the property.

9. Challenging judgment and decree of the learned Munsiff, 1st respondent filed A.S. No.12 of 2005 in the Sub Court, Ottappalam. Learned Sub Judge was of the view that since there is dispute regarding identity of the property and an issue regarding title is raised, it is necessary to identify