Dismissed

Iranhivalappil Paru v. Padinhareyil Gopalan

Kerala HC12 Jun 2014FAO (RO)/324/2013

Case brief

AI extract

What is this about?

This appeal challenged a remand order in a suit for recovery of possession. The High Court dismissed the appeal, holding that the remand to the trial court for a correct survey plan and to address adverse possession was proper and executable.

What did the court decide?

The appeal was dismissed with no order as to costs. The remand order of the first appellate court was upheld.

Iranhivalappil Paru Vs Padinhareyil Gopalan — Partition | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 12TH DAY OF JUNE 2014/22ND JYAISHTA, 1936

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FAO (RO).No. 324 of 2013 ()

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AS 17/2012 of SUB COURT, QUILANDY OS 81/2010 of MUNSIFF - MAGISTRATE COURT, PAYYOLI

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APPELLANTS/RESPONDENTS/PLAINTIFFS:

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IRANHIVALAPPIL PARU, W/O.KUNHIRAMAN, AGED 67 YEARS, AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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DEVAKI, W/O.NANU, AGED 48 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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SANTHA, D/O.KUNHIRAMAN, AGED 45 YEARS, AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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VALSALA, W/O.PAVITHRA, AGED 43 YEARS, AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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KARTHIAYANI, W/O.ASHOKAN AGED 39 YEARS, AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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SOBHA, W/O.SAILENDRAN, AGED 35 YEARS, AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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PAVITHRAN, S/O.KUNHIRAMAN, AGED 34 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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SUDHA, D/O.KUNHIRAMAN, AGED 33 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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SUNIL KUMAR, S/O.KUNHIRAMAN, AGED 34 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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PREMI, W/O.KUNHIRAMAN, AGED 40 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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ANJU, AGED 15 YEARS, (MINOR) REPRESENTED BY GUARDIAN,NEXT FRIEND- PREMI AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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GOPALAN, S/O.AKKOORAN, AGED 62 YEARS S/O.AKKOORAN, AGED 62 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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ANITHA, D/O.GOPALAN, AGED 23 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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SMITHA,AGED 20 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK.

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BY ADVS.SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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PADINHAREYIL GOPALAN S/O.S/O.KUNHIRAMAN, AGED 56 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK - 673 305.

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PADINHAREYIL JANAKI, W/O.PADINHAREYIL GOPALAN, AGED 52 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK - 673 305.

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PADINHAREYIL SUNIL, S/O.PADINHAREYIL GOPALAN, AGED 35 YEARS AYANIKKAD AMSOM, DESOM, KOYILANDY TALUK - 673 305.

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R BY ADV. SRI.B.KRISHNAN R BY ADV. SRI.R.PARTHASARATHY

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 12-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA J.

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- - - - -- - - - F.A.O.(R.O.) No.324 of 2013

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- - - - -- - - - Dated this the 12^th day of June, 2014

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JUDGMENT

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Aggrieved by the judgment and decree in O.S. No.81 of 2010 of the Munsiff's Court, Payyoli, the defendants in the suit preferred A.S. No.17 of 2012 before the Subordinate Judge's

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Court, Koyilandy. The lower appellate court has chosen to set aside the judgment and decree and to remit the matter to the trial court with some directions. In a way, it seems that it is altogether an open remand. The plaintiffs in the suit have come

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up in appeal challenging the remand order under Order 43 Rules 1(u) of the Code of Civil Procedure.

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It seems that the appellants have raised the following questions of law as questions, based on which the present

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F.A.O.(R.O.) No.324 of 2013

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appeal has been filed:

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(i) Whether the Lower Appellate Court in the instant case justified in remanding the case to the trial court to adjudge on the question of identity of the suit property, particularly when there was no dispute or pleading in the written statement disputing the identity of the property much less any issue framed by the trial court regarding the identity of the suit property?

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(ii) Is it proper or legal for the appellate court to remand a case to the trial court for de novo disposal in such a way to enable a party to improve his case and fill up the lacuna on his part? Is not such a remand contrary to order 41 Rules 23 and 23A of CPC?

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The suit is one for recovery of possession and damages alleging that the defendants have trespassed into a portion of the property of the plaintiffs. Both sides base their claims over the property on the basis of Ext.A1 Partition Deed dated 21.11.1961. Item No.1 property in Ext.A1 was alloted to Kunhiraman and item No.3 property in Ext.A1 was alloted to

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F.A.O.(R.O.) No.324 of 2013

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Gopalan. Item No.1 property allotted to Kunhiraman ultimately came into the possession of the plaintiffs. Out of item No.3 property, having an extent of 52.5 cents allotted to Gopalan, he sold 19.5 cents to one Changaran and Kunhichekkan. Further, out of the remaining extent, he sold out 4¾ cents to Kunhichekkan and Nanu. The said property ultimately came into the hands of the defendants. Therefore, the defendants derived title over 24.25 cents of property from the property allotted to Gopalan. The said 19.5 cents of property is lying at the immediate west of the properties of the plaintiffs.

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The claim of the plaintiffs is that their property is A schedule property in the plaint and the property of the defendants is situated at the western side of A schedule property and that the defendants have committed trespass into the 5.81 cents of property out of plaint A schedule property. They have sought for recovery of possession of that portion of

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F.A.O.(R.O.) No.324 of 2013

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the property, on which the defendants had allegedly committed trespass, by scheduling that portion of the property as B schedule property.

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The defendants have resisted the suit by filing a detailed written statement contending inter-alia that they have never committed any trespass into the portion of the properties of the plaintiffs. An alternative plea of adverse possession and limitation, has also been resorted to by the defendants.

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The trial court has raised issues and evidence was recorded. Prior to that a commission was issued and the commissioner filed Ext.C1 Report and Ext.C2 Plan.

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The trial court has found that the plaintiffs are entitled to recover the portion shown as item A1 in Ext.C2 Plan from

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the defendants and proceeded to pass judgment and decree accordingly.

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When the matter came up before the first appellate

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court, the first appellate court noticed that Ext.C2 Plan appended to Ext.C1 Report cannot be treated as a valid plan, properly prepared with proper measurements. Therefore, the lower appellate court was of the view that the properties of the parties should have been properly identified and located, so as to correctly note down the portion over which the trespass was allegedly made. The lower appellate court has also left open the plea taken up by the defendants relating to adverse possession and limitation. The lower appellate court has taken the view that together with the opportunity granted to the plaintiffs, to get the property identified properly, an opportunity should also be given to the defendants to establish their plea of adverse possession and limitation and therefore, the said issue was left open to be decided afresh by the trial court.

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Heard the learned senior counsel for the appellants, Shri.V.V. Asokan and the learned counsel for the respondents,

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F.A.O.(R.O.) No.324 of 2013

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Shri.B.Krishnan.

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Learned counsel for the respondents has argued that the zone of consideration in the present appeal is confined to the the matters covered under Order 43 Rules 1(u) of the Code of Civil Procedure and questions of law, if any, also have to be formulated. Regarding the question No.(i) raised by the learned senior counsel for the appellants, learned counsel for the respondents has argued that the question does not arise at all as there was a specific issue raised by the trial court regarding the identity of the property. The attention of this court has been drawn to Issue No.2 raised by the trial court as to “whether the plaint B schedule property is a part of A schedule property?”. As rightly pointed out by the learned counsel for the respondents, there was a specific issue framed by the trial court regarding the identity of the properties. Regarding the next question, it has been pointed out by the learned counsel for the

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respondents that the remand order passed by the appellate court is in fact one aiding the plaintiffs more than the defendants, thereby enabling the plaintiffs to have an opportunity to get a proper plan after locating and identifying the respective properties.

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It is true that Ext.C2 Plan has been prepared by the commissioner, may be, with the aid of some surveyors. At the same time, it does not show any scale by which the plan has been prepared, the offset measurements etc. It seems that the extent of property is calculated by merely taking the length and breadth measurements. It is also to be noted that even Ext.C2 Plan reveals that the properties are not lying as a correct rectangle or square in shape. Therefore, it may not be able to arrive at the correct measurement of the properties based on Ext.C2 Plan. On going through the impugned judgment, this court is of the view that the lower appellate court cannot be

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found fault with in remanding the matter to the trial court for considering the matter after obtaining a correct survey plan in respect of the properties after identifying and locating the properties. It is trite that the court is expected to pass only an executable decree. In this particular case, it may not be said that the trial court has passed an executable decree, enabling the plaintiffs to recover possession of item A1 shown in Ext.C2 Plan. There is no subsisting boundary at the red dotted portion, which is noted as the western boundary line of item A1 plot in Ext.C2 Plan. It cannot be said that such a portion has been correctly identified and located. Even if Ext.C2 Plan is appended with the decree, it cannot be executed. Therefore, the first appellate court has taken the view that the matter has to go back to the trial court for getting a proper plan prepared.

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It seems that the lower appellate court has taken the

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the view that no sufficient opportunity was granted to the

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F.A.O.(R.O.) No.324 of 2013

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defendants to substantiate their contentions with regard to adverse possession and limitation. Especially when the plaintiffs are getting an opportunity to get their property located and identified properly and to obtain a plan appended with the decree that may be passed, an opportunity could be granted to the defendants also to substantiate their contentions regarding the adverse possession and limitation, by adducing further evidence in the matter, if so advised.

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On hearing either sides, this court fully concur with the view taken by the first appellate court. The decision taken by the first appellate court only tends to resolve ultimately the matters in controversy in the suit. There cannot be any serious heart burn on the part of the appellants in the open remand made by the first appellate court in this particular case. In fact, as pointed out by the learned counsel for the respondents, it seems that the appellants are benefited to get the matters in

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controversy resolved properly. This appeal is, therefore, devoid of merits and is only to be dismissed, and I do so.

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In the result, this appeal is dismissed. No order as to costs.

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Sd/-

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B.KEMAL PASHA , JUDGE

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// TRUE COPY //

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PA to Judge

Iranhivalappil Paru v. Padinhareyil Gopalan

Case brief

What is this about?

What did the court decide?

Iranhivalappil Paru v. Padinhareyil Gopalan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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