Partly allowed

Mohanan v. Visalakshi

Kerala HC12 Oct 2021FAO (RO)/1/2021

Case brief

AI extract

What is this about?

This order disposed of an appeal against a remand by the first appellate court. The High Court set aside that remand, holding it impermissible to require a plaintiff to prove title if the suit lacks a claim for declaration and that mixed questions cannot be preliminary. An open remand was ordered.

What did the court decide?

The first appellate court's remand order was set aside; an open remand to the trial court was directed.

Mohanan Vs Visalakshi — Property and Title | Kerala HC (2021)

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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 P.SOMARAJAN

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TUESDAY, THE 12^TH DAY OF OCTOBER 2021 / 20TH ASWINA, 1943

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FAO (RO) NO. 1 OF 2021

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AGAINST THE JUDGMENT AND DECREE DATED 8/12/2020 IN AS 93/2020 OF

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ADDITIONAL DISTRICT COURT, THRISSUR

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AGAINST JUDGMENT AND DECREE DATED 28/07/2020 IN OS 167/2015 OF I

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ADDITIONAL SUB COURT, THRISSUR

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APPELLANTS/RESPONDENTS/DEFENDANTS 1 & 2:

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1 MOHANAN, AGED 55 YEARS, S/O.RAVUNNY, VADAKKETHIL (H), VIRUPPAKKA, VAZHANI P.O., THRISSUR DISTRICT - 680 589.

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2 SUMA, AGED 45 YEARS, D/O.RAVUNNY, VADAKKETHIL (H), VIRUPPAKKA, VAZHANI P.O., THRISSUR DISTRICT - 680 589.

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BY ADV K.P.SREEKUMAR

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RESPONDENT/APPELLANT/PLAINTIFF:

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VISALAKSHI, AGED 75, D/O.KURUMUNDATH NARAYANAN, VIRUPPAKKA VILLAGE AND DESOM, THALAPPILLY TALUK - 680 589.

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BY ADV SRI.G.SREEKUMAR (CHELUR)

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO) NO. 1 OF 2021 2

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JUDGMENT

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The question of maintainability of the suit

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for fixation of boundary without a substantial

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prayer for declaration of title taken as a preliminary issue by the trial court and answered against the plaintiff and dismissed the suit, which was in the first appellate stage set aside and remanded on the reason that it is upon the defendants to prove the title over the property when the title of plaintiff is disputed.

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first appellate court for a remand of the case,

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cannot be sustained. It is against the basic

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principle that the person who claims title and

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right over the property must prove it and not the person who denies the title. Further, it is

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not permissible to take up an issue involving mixed question of law and fact as a preliminary issue when evidence is required for its

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FAO (RO) NO. 1 OF 2021 3

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adjudication. Hence, a remand of the matter to the trial court cannot be avoided, but not for the reason raised in the first appellate stage. There will be an open remand to the trial court for deciding all questions untramelled by any of the observations made in the impugned order. The parties may be permitted to incorporate substantial prayers and to raise additional pleadings, if so required.

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The appeal will stand dismissed accordingly. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

Mohanan v. Visalakshi

Case brief

What is this about?

What did the court decide?

Mohanan v. Visalakshi

Case brief

What is this about?

What did the court decide?

What the court decided

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