The High Court dismissed an appeal against a trial court order remanding a property suit. The lower court's order was criticized as not specific on relief but was upheld to allow measurement and incorporate possession relief without instituting a fresh suit. The appeal was dismissed.
Appeal dismissed. Parties directed to appear before trial court; no costs.
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 P.SOMARAJAN
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944 FAO (RO) NO. 202 OF 2016
AGAINST THE JUDGMENT DATED 19-7-2016 IN AS 19/2013 OF I ADDITIONAL DISTRICT COURT, PALAKKAD.
OS 169/2010 OF ADDITIONAL SUB COURT, PALAKKAD. APPELLANT/RESPONDENT/DEFENDANT :
VEERANKUTTY, S/O. KATTOYU ISMAIL, AGED 53 YEARS, NOCHUR, KUTHANOOR AMSOM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV SRI.A.SHAFEEK (KAYAMKULAM)
RESPONDENT/APPELLANT/PLAINTIFF :
VASAVAN, AGED 61 YEARS, S/O. VIJAYARAGHVA MENON, PARAKKALCHALLA, MUTHALAMADA AMSOM, CHITTUR TALUK,PALAKKAD DISTRICT 678 507.
BY ADVS. SRI.G.KEERTHIVAS SRI.P.R.VENKATESH
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
FAO(RO) No.202 of 2016 2
P.SOMARAJAN, J.
-----------------------------------------------FAO(RO) No.202 of 2016
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Dated this the 31st day of May, 2022.
J U D G M E N T
In a suit for injunction, the trial court dismissed the suit on
the ground that there is no sufficient evidence to show the identity of the boundary in dispute and also found that the entire property is lying inside the boundary structures around the property of the defendant. In appeal, it was set aside for the purpose of measuring out the property based on the old survey records and also for incorporating substantial relief of recovery of possession and other connected reliefs. The remand order was passed in the following lines :
“In the result, the appeal is allowed. The judgment and decree in O.S 169/2010 on the file of the Sub Court, Palakkad are set aside. The suit is remanded back to the court below for fresh trial to enable the appellant/plaintiff to take steps for measurement of the plaint schedule property as indicated above and to seek proper relief known
FAO(RO) No.202 of 2016 3
to law. The appellant/plaintiff shall take all necessary steps in that regard.
In the facts and circumstances of the case, there is no order as to costs.
Since the suit is being remanded for fresh trial to the court below, the entire court fee remitted by the appellant/plaintiff would be refunded.
Both parties are directed to appear before the court below on 20-08-2016. Office shall transmit the records to the court below forthwith.”
scope for measuring out the property or to locate the property or to fix the boundary.
Going by the facts and circumstances involved in the
case, I am of the view that such an order of remand was passed by the trial court for the purpose of enabling the plaintiff to incorporate a relief of recovery of possession and declaration of title as the case may be, so as to advance justice, instead of
FAO(RO) No.202 of 2016 4
instituting another suit for declaration and recovery. Hence, the order of remand deserves no interference. The appeal is dismissed. No costs.
The parties shall appear before the trial court on 15-06-2022, so as to proceed further in the matter
P. SOMARAJAN, JUDGE
amk
2 issues framed by the court
Whether the High Court should interfere with the trial court's order remanding the suit for fresh trial and measuring the property.
Whether the scribe's order for specific relief (measurement, possession, declaration) impacts the maintainability of the current appeal against a non-interference order.
VEERANKUTTY
VASAVAN
P. SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
