Allowed

Manjusha v. K.Sadhashivan Pillai

Kerala HC6 Aug 2019FAO (RO)/97/2018

Case brief

AI extract

What is this about?

This appeal challenges an appellate court order remanding a partition suit to the trial court due to lack of specific findings on property nature. The High Court upheld the remand, clarifying that appellate observations were not findings on merits and do not bind the trial court.

What did the court decide?

Appellant's appeal against the order of remand is allowed; the parties are directed to ensure expedited trial.

Manjusha Vs K.Sadhashivan Pillai — Partition | Kerala HC (2019)

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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 SATHISH NINAN

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TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941

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FAO (RO).No.97 OF 2018

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AGAINST THE ORDER IN AS 7/2014 DATED 31-01-2018 OF PRINCIPAL SUB COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE IN OS 161/2010 DATED 23-11-2011 OF MUNSIFF COURT, VAIKOM

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APPELLANT/1ST RESPONDENT/ PLAINTIFF:

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MANJUSHA

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AGED 42 YEARS, W/O. RAJU V.S., RESIDING AT SARASWATHI MANDIR, SOUTH ADUVASSERY P.O., PIN-683578, CHENGAMANADU (VIA) ERNAKULAM.

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BY ADV. SRI.M.G.JEEVAN

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RESPONDENTS / APPELLANT/ RESPONDENTS 2 TO 4 / DEFENDANTS 1 TO 4:

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1 K.SADHASHIVAN PILLAI AGED 66 YEARS, S/O. DEVAKIYAMMA & KESAVA PILLAI, MALIAKKAL HOUSE, KULASEKHARAMANGALAM, VAIKOM, KOTTAYAM DISTRICT, PIN-686608.

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2 SOMASEKHARA PILLAI

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AGED 64 YEARS, S/O. DEVAKIYAMMA & KESAVA PILLAI, P.B.NO.76953, SO LAMA, ABU DHABI, UAE, NOW RESIDING AT SANDAM, AROOR P.O., PIN-688534.

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3 MALINI AGED 61 YEARS, D/O. DEVAKIYAMMA & KESAVA PILLAI, MALIAKKAL HOUSE, KULASEKHARAMANGALAM, VAIKOM, KOTTAYAM DISTRICT, PIN-686608.

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4 SUNILA KUMARI AGED 31 YEARS, W/O DINESH GOPAL, PULIMPARAMBIL HOUSE, CHARAMANGALAM KARA, KANJIKUZHY VILLAGE, ALAPPUZHA DISTRICT, PIN-688525.

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BY ADVS.

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SRI.B.PREMNATH (E)

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DR.V.N.SANKARJEE

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FAO (RO).No.97 OF 2018

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SRI.S.SIDHARDHAN SRI.V.N.MADHUSUDANAN SMT.R.UDAYA JYOTHI SRI.M.M.VINOD SMT.M.SUSEELA SRI.SUDHAKARAN V.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 06.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO).No.97 OF 2018

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JUDGMENT

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Order of remand by the appellate court is under challenge by the plaintiff in the suit.

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The suit is one for partition in respect of various items of properties. The claim for partition was on the contention that the property belongs to a Marumakkathayam tharwad. The trial court granted a decree in respect of plaint A schedule and part of B schedule. The claim regarding other items were negatived. The 1^st defendant carried the decree in appeal. The appellate court, as per the impugned order, set aside the decree and judgment of the trial court and remitted the matter for disposal denovo.

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The learned counsel on either sides were heard on

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the following substantial question of law.

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“1. Did not the lower appellate court err in having made observations regarding the nature and character of the property after having entered a finding that the suit needs to be disposed of afresh by the trial court.”

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The lower appellate court, taking note of the fact

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that the trial court did not enter a specific finding

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FAO (RO).No.97 OF 2018

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regarding the nature and character of the property, formed an opinion that the matter needs to be remitted. That apart, before the lower appellate court, a document was produced as Ext.B2 under Order XLI, Rule 27 CPC as I.A.No.465/2017. In view thereof, the order of remand cannot be faulted.

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However, it is seen that the appellate court, while making the order of remand, have made some observations regarding the character of the properties, with reference to Ext.A1 partition deed. This, the learned counsel for the appellant apprehends, would disable the trial court from considering the entire issues afresh. I notice that the said observations were made by the appellate court only in the course of discussion to consider whether a remit is necessary or not. They are not findings entered into on the merits.

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It is only appropriate that the trial court considers the entire matter denovo , untrammeled by any of the findings or observations in the impugned judgments. It will be open for both sides to adduce further evidence, if

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FAO (RO).No.97 OF 2018

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sought for. Needles to say that the documents produced along with I.A.No.465/2017 before the appellate court shall be forwarded to the Munsiff court for further proceedings.

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Considering the fact that the suit is of the year 2010, I am sure that every endeavour would be made by the trial court to have the proceedings expedited.

Sd/-

SATHISH NINAN

JUDGE

rsr

Manjusha v. K.Sadhashivan Pillai

Case brief

What is this about?

What did the court decide?

Manjusha v. K.Sadhashivan Pillai

Case brief

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