The High Court held that the lower appellate court erred in granting a decree for recovery of possession without remittal. The matter is remitted to the trial court for fresh disposal including inquiry into title and evidence.
Second Appeal allowed; Judgment and decree of lower appellate and trial courts set aside; Suit remitted to trial court for fresh disposal.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 2ND DAY OF FEBRUARY 2017/13TH MAGHA, 1938
RSA.No. 410 of 2015 ()
AS 254/2014 of II ADDITIONAL DISTRICT COURT-II, THIRUVANANTHAPURAM
OS 60/2006 of ADDITIONAL MUNSIFF’S COURT-II, NEYYATTINKARA
APPELLANT/RESPONDENT/DEFENDANT:
R.OMANA, D/O.RUGMINI, PULIYOORKONATHU MEKKUMKARA PUTHEN VEEDU, ANAVOOR, ANAVOOR P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.
BY ADVS.SRI.L.MOHANAN SMT.LIGEY ANTONY
RESPONDENT/APPELLANT/PLAINTIFF:
B.UDAYACHANDRAN, S/O.BHASKARA PILLAI, PULIYOORKONATHU VEEDU, ANAVOOR, ANAVOOR P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM-695124.
R1 BY ADV. SRI.R.GOPAN(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
DSV/6/2/17
B. KEMAL PASHA, J.
................................................................ R.S.A. No. 410 of 2015
............................................................... Dated this the 2nd day of February, 2017
J U D G M E N T
The defendant in O.S.No.60/2006 of the Addl. Munsiff's Court-II, Neyyattinkara is the appellant herein. Originally, the said suit was filed for putting up of boundaries separating plaint A schedule and plaint B schedule properties, and one for perpetual injunction. Later, on getting Ext.C1 Commissioner's report and Ext.C1(a) plan appended with it, the plaint was amended by incorporating a further relief of recovery of possession based on title in respect of plaint 'C' schedule item.
hearing either side, passed a decree declaring the right, title
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and possession of the plaintiff in respect of plaint A schedule shown by the Commissioner as ABCDEFI - KLMNOPQ plot as per Ext.C1(a) plan. The trial court allowed the plaintiff to put up boundary on the boundary lines shown by the Commissioner excluding the pathway shown in it. The plaintiff was also allowed to put up boundaries on the southern and northern side of the pathway shown in the plaint. A decree of perpetual injunction restraining the defendant from trespassing into the plaint A schedule shown by the Commissioner in Ext.C1(a) plan was also granted.
“1) The plaintiff is allowed to put up boundaries in ABCDEFGHI – RLOP lines, in Ext.C1(a) plan, after preserving right of way specifically noted in dotted lines in Ext.C1(a) plan.
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2) The plaintiff is allowed to recover possession of ONMLKQPRL plot in Ext.C1(a) plan after preserving the above right of way.
3) Defendant and his men are restrained by a permanent prohibitory injunction, from trespassing upon plaint A schedule property, excluding RLOP plot and the way portion shown in doted line in Ext.C1(a) plan and from doing any act of mischief therein.”
Aggrieved by the said judgment and decree passed by the lower appellate court, the defendant has come up in appeal.
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entitled to is only seven cents, it committed a mistake in plotting out the property in the judgment and decree. At the same time, the learned counsel for the defendant has pointed out that the whole approach made by the trial court as well as the lower appellate court in deciding the question involved in the suit was not on the correct line. It has been argued that in order to succeed in a suit for recovery of possession based on title, it is the duty of the plaintiff to establish his title and he cannot harp upon the deficiency on the part of the defendant to prove the title of the defendant over the property of the defendant. On going through the trial court judgment, it seems that the trial court has also mainly considered the question regarding the deficiency of title of the defendant. At the same time, the trial court has considered the question of title of the plaintiff also. The trial court ought to have given more emphasis to the question of the title of the plaintiff over the plaint A schedule property in order to grant a decree. A threadbare examination of the
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title of the plaintiff ought to have been made by the trial court. Of course, the trial court has noted that the plaintiff has proved his title over the property through Ext.A4 Will which was proved by the plaintiff through the examination of the plaintiff as PW1 as well as examination of PW2, who was one of the attestors of the Will. Over and above it, in Ext.A4 the survey number shown is the old survey number. It has to be proved that the property being claimed by the plaintiff as A schedule should be in conformity with the old survey number as contained in Ext.A4.
learned counsel for the plaintiff that the trial court after making observations regarding the entitlement of the plaintiff over his properties, has incorrectly noted the description of the property in the judgment. As rightly pointed out by the learned counsel for the defendant, the defendant could not challenge the said observations of the trial court even though he was aggrieved by the said observations, since the
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judgment was not against him.
incorrectness in the judgment of the trial court, the plaintiff filed I.A. under Section 152 of the Code of Civil Procedure,1908 before the trial court. The said IA was mercilessly dismissed. Aggrieved by it, the plaintiff has approached this Court under Article 227 of the Constitution of India. This Court disposed of the matter by directing the plaintiff to pursue appropriate remedies before appropriate forum. Subsequent to that, the plaintiff had approached the appellate court.
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decree for recovery of possession. The lower appellate court has also mainly considered the question as to whether the defendant has title over the B schedule property or not. For granting recovery of possession, the lower appellate court has mainly considered the alleged deficiency in the title of the defendant over the nine cents of property. The whole approach made by the lower appellate court seems to be incorrect. The lower appellate court, in all fairness, ought to have remitted the matter for fresh consideration to the trial court.
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In the result, this Second Appeal is allowed and the judgment and decree passed by the trial court as well as the lower appellate court are set aside. The suit is remitted to the trial court for fresh disposal as described above. The parties shall appear before the trial court on 25.02.2017. The trial court shall make every endeavour to dispose of the suit, as expeditiously as possible, at any rate, within a period of six months from the date of receipt of the records.
All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy //
P.S. to Judge.
3 issues framed by the court
Whether the lower appellate court was justified in passing a decree for recovery of possession without remitting the matter to the trial court for fresh inquiry into title.
Whether the trial court and lower appellate court erred in considering the defendant's deficiency in title instead of strictly establishing the plaintiff's title for possession.
Whether the matter requires remittal to the trial court for fresh consideration of title and entitlement to relief.
2 provisions across 2 enactments
R.Omana
B.Udayachandran
B.Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
