Third defendant appealed a remand order. The High Court dismissed the appeal, holding the appellate court correctly allowed an opportunity to identify properties via commission and reconsider certificate validity.
The First Appeal and related interLOCUs applications were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR
TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929
FAO.No. 154 of 2005()
--------------------AS.125/2001 of II ADDL.SUB COURT,KOZHIKODE (A.S.NO.175/2001 OF DISTRICT COURT) OS.312/1989 of ADDL.MUNSIFF,KOZHIKODE-II
APPELLANT - 3RD DEFENDANT - 2ND RESPONDENT
GANESHAN, S/O.ALAGIRI, ARAYAKKAT PARAMBA, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK.
BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. SRI.V.S.ROBIN
RESPONDENTS - PLAINTIFFS 2 TO 5, 7 TO 18 AND DEFENDANTS 2, 4 TO 10 - APPELLANTS AND RESPONDENTS 1, 3 TO 9:
FAO NO.154/2005 2
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(**)21. SAROJINI, W/O.BALAKRISHNAN, KALAM MALIKA, 17/1044, ARANGOTTU PARAMBA, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. (DIED)
(*)IT IS RECORDED THAT 16TH RESPONDENT IS NO MORE AND THAT RESPONDENTS 13 TO 15 WHO ARE ALREADY IN THE ARRAY OF PARTIES ARE HIS LEGAL HEIRS VIDE ORDER DATED 18.10.2005 AS MEMO CF 11515/2005.
(**)IT IS RECORDED THAT 21ST RESPONDENT IS NO MORE AND THAT RESPONDENTS 22 TO 24, WHO ARE ALREADY IN THE ARRAY OF PARTIES ARE HER LEGAL HEIRS VIDE ORDER DATED 18.10.2005 AS MEMO CF 11515/2005.
R1 TO R10 & R12 TO R15 BY ADV. SRI.PHILIP ANTONY CHACKO
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 8/1/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. PADMANABHAN NAIR ,J.
F.A.O.No.154 of 2005
Dated, this the 8th day of January, 2008 JUDGMENT
The third defendant in O.S.No.312/1989 on the file of the Munsiff of Kozhikode - II is the appellant. This appeal is filed against an order of remand passed by the lower appellate court setting aside a decree and judgment passed by the trial court dismissing the suit filed by the plaintiffs and remanding the suit for fresh disposal in accordance with law.
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of A schedule. That property was given as karaima lease to the first defendant. He constructed a small house therein and residing there. Subsequently he trespassed into the property and reduced a portion of A schedule property into his possession which is described as C schedule. The first defendant fraudulently obtained a certificate of purchase from the Land Tribunal, Kozhikode as per orders in O.A.No.2040/1971. Neither the first plaintiff nor Kuttappu were made parties in the Land Tribunal proceedings. Hence the suit for recovery of C schedule property. During the pendency of the suit the first plaintiff died. Subsequently plaintiffs 6 to 14 were impleaded. First defendant also died. Legal heirs of first defendant were impleaded as defendants 3 to 6. Original first defendant filed a written statement contending that the suit was not maintainable. The description and extent of A to C schedules were disputed. The predecessor-in-interest of the plaintiffs did not get possession and title to the plaint A schedule property as alleged in the plaint. The averment that the property originally belonged to Kuttayi was denied. A property measuring five cents in A schedule was obtained on lease by the father of the first defendant under a karaima lease about 90 years back. Ever since the date of entrustment the father of the first defendant was in possession and enjoyment of the property and after his death first defendant is in possession and enjoyment. He obtained a certificate of purchase in respect of five cents of property as per orders in O.A.No.2040/1971. The averment in the plaint that the relationship between the plaintiffs and second defendant was strained was
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denied. A schedule property originally belonged to kizhakkekovilakam. In the Land Tribunal proceedings the children of Kuttayi were made parties. The averment that the plaintiffs obtained a certificate of purchase in SMC. No. 148/1988 was denied. If at all any purchase certificate was obtained the same is not binding upon the first defendant since he was not a party to that proceedings. Possession claimed by the plaintiffs over the entire property was disputed. The allegation that under the karaima lease the predecessor-in-interest of the first defendant was given 1 ½ cents of property alone was denied. He prayed for dismissal of the suit. Since the defendants disputed the description, measurement, extent, etc. of the plaint schedule properties, a commission was deputed. The commissioner filed Exts.C1 report and C2 plan. Exts.C1 and C2 were remitted. Thereafter she filed Exts.C3 report and C4 plan. Commissioner filed a report stating that she was unable to identify the suit properties. The trial court accepted the statement of the commissioner and found that the plaintiffs failed to get plaint A schedule properties identified. It also found that the plaintiffs failed to prove the title and possession over the suit property. Regarding the certificate of purchase relied on by the defendants the trial court held that it was not valid and the same was not binding on the plaintiffs. But, in view of the finding that the suit properties were not identified the suit was dismissed. Challenging that decree and judgment plaintiffs filed A.S.No.125/2001 before the Subordinate Judge's Court, Kozhikode (A.S.No.175/2001 of District Court, Kozhikode). The lower appellate
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court found that the commissioner did not measure the property claimed by the plaintiffs or defendants. It further found that an opportunity ought to have been afforded to the appellants/plaintiffs to get the property identified. Lower appellate court found that though no appeal or cross-appeal was filed, in view of the arguments advanced by the defendants the finding of the court below that the certificate of purchase obtained by the first defendant is not binding on the plaintiffs is also requires reconsideration. The lower appellate court set aside the finding of the trial court that the plaintiffs were not entitled to a decree of recovery of possession of plaint C schedule property as they failed to prove title and possession over the suit properties and remanded the matter for reconsideration with a direction to afford an opportunity to the plaintiffs to take out a commission to get A to C schedule properties identified. Trial court was also directed to reconsider the validity of Ext.X1 certificate of purchase. Challenging that remand order the third defendant alone has filed this F.A.O.
(3) Was the court below justified in remanding the case for fresh decision for a reason outside the purview of Rule 23 and Rule 23-A of Order XLI
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of the Code of Civil Procedure?
(4) Was the court below justified in casting burden on the trial court in proving the exact extent and identity of plaint 'A' schedule property as against the burden cast upon the plaintiffs who come forward with the suit to establish their case?
“Karaima” means a transfer of lands situate in the Kozhikode district or in the Malappuram district, in consideration of ground rent, principally for the
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purpose of erecting a homestead, and described in the document, if any, evidencing the transfer, as Karaima or Panayapattom, Panayachit, or by whatever name called which possesses the characteristics of Karaima”
A reading of Ext.A5 also shows that karaima was given in respect of a line
building having six rooms and the land appurtenant to that building having a side measurement of 31 ½ x 10 ½ capenter koles. So whatever be the extent of the entire property, the description of the property mentioned in karaima lease, Ext.A5, shows that the name of the entire property is 'Arangatt Paramba'. That property can be identified. Further the parties had not raised any dispute regarding the identity of the property. The commissioner expressed her helplessness in identifying the properties. According to her B schedule property can be identified in A schedule property at a number of places. But, so far as the karaima property is concerned, there can be only one plot in which the building is situated. So there will not be any difficulty in identifying that plot. As rightly observed by the lower appellate court, the commissioner can identify the entire property with the help of the Taluk Surveyor and locate B and C schedule properties also.
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purchase in respect of the very same property as per order in SMC. No.144/1988. According to the defendants they obtained a certificate of purchase in the year 1977 as per order in O.A.No.2040/1971. Lower appellate court directed the trial court to reconsider the issue regarding the validity of Ext.X1 certificate of purchase. Virtually it was an open remand.
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interference. None of the questions of law framed in the appeal arise for consideration. There is no merit in the appeal. It is only to be dismissed.
In the result, F.A.O. is dismissed.
I.A.Nos.2284 and 3970/2005 in F.A.O.No.154/2005 will stand dismissed.
K. PADMANABHAN NAIR, JUDGE.
cks
2 issues framed by the court
Was the appellate court justified in remanding the case to get properties identified despite plaintiffs failing to prove title?
Was the trial court justified in casting the burden of proving extent and identity of property on the plaintiffs instead of the appellants?
1 provisions across 1 enactments
Ganeshan
Mamiyil Karunakaran
K. Padmanabhan Nair
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
