JUDGMENT :

SUNIL THOMAS, J.

1. The original petitioners are the plaintiffs in O.S. No. 258/2006 of Sub Court, Kozhikode, which is a suit of recovery of possession.

2. The plaintiffs claimed that, plaint A and B schedule properties belonged to Pavangad Illom. The plaintiffs are the successors of one Unnimaya Antharjanam born in her matrimonial relationship with one Chirukandan Vaidyar. The defendants are the successors in interest of Chirukandan Vaidyar born in his relationship with one Chirutha, whom Chirukandan Vaidyar had married after the death of Unnimaya Antharjanam. Plaint B schedule property devolved on Unnimaya Antharjanam and thereafter on her children born to Chirukandan Vaidyar. The properties acquired by Chirukandan Vaidyar were partitioned pursuant to a decree in O.S. No. 21/1976 on the file of the Sub Court, South Malabar. Plaint B schedule was not included in the said suit since it was not an acquisition of Chirukandan Vaidyar and was possessed and enjoyed by Unnimaya. Pursuant to revenue settlement, Pavangad Illom paramba was later called Kizhakke Pavangad and Vadakke Pavangad. The properties of Unnimaya Antharjanam were recorded in the revenue settlement in the name of her great grandson Chathu Vaidhyar, who was the eldest member of the family at the time of promulgation of the Malabar Land Registration Act. The defendants and their predecessors who are the successors of Chirutha, the 2nd wife of Chirukandan Vaidyar have no right over plaint B schedule properties. However, defendants started acting as the real owners of the property and created documents. When plaintiffs came to know about this, they issued a lawyer notice calling upon the defendants to surrender B schedule property. Since they refused to do so, the suit was filed for recovery of possession on the strength of their title.

3. Defendants 1 to 8 filed joint a written statement and defendants 9, 10 and 11 filed a separate written statement denying the averments in the plaint. It was contended by them that plaint B schedule was not identifiable. The genealogy shown was not correct and the survey and resurvey and the boundaries were false. There was no property like plaint B schedule and there was no Illom by name Pavangad Illom. There was only a thiyya family by name Pavangad family. The plaintiffs actually belonged to Mannarkkal family. Chirukandan Vaidyar had not married a lady by name Unnimaya Antharjanam. O.S. No. 21/1876 was filed making senior most members of each branch as parties. The suit was settled by a compromise decree in the year 1877. The properties of the tharavadu were divided and the common tharavadu was extinguished. Property shown as plaint B schedule was also a part of the said decree.

4. Pending trial, plaintiffs filed I.A. No. 5174 of 2006, requesting the Court to appoint an Advocate Commissioner to measure the disputed properties. A work memo was also filed. The Advocate Commissioner, after the measurement of the property with the assistance of a Surveyor filed a report and two plans. One was prepared by him and the other was prepared by the Taluk Surveyor. According to him, B schedule property was identified on the basis of survey records.

5. The Advocate Commissioner's Report shows that property was measured in the presence of both parties. The District Head Surveyor (retired) had assisted the Advocate Commissioner in identifying the property. He had found that some of the plaint schedule properties were in the possession of the defendants and the remaining were in the possession of 3rd parties. He also noted that there were old substantial structures existing in the properties. It was also found that the plaint schedule property was lesser in extent.

6. Subsequently, plaintiffs filed I.A. No. 5372 of 2012, with a request to remit the Advocate Commissioner's report and plan to the Advocate Commissioner on the ground that, he had identified only a portion of the property on the basis of the survey records and that he has not prope