Allowed

Appukuttan Nair v. Sadasivan Nair

Kerala HC1 Apr 2022FAO (RO)/41/2020

Case brief

AI extract

What is this about?

In an appeal against a first appellate court order remanding a boundary suit due to missing defendant property schedules, the High Court held that such schedules are not mandatory under CPC. The court distinguished a prior decision where an observation on this point was merely obiter dicta and allowed the appeal, setting aside the remand order.

What did the court decide?

The order of remand is set aside. The parties are directed to appear before the first appellate court on 23/05/2022. The first appellate court is directed to dispose of the appeal within three months.

Appukuttan Nair Vs Sadasivan Nair — Property and Title | Kerala HC (2022)

¶1

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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FRIDAY, THE 1ST DAY OF APRIL 2022 / 11TH CHAITHRA, 1944

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FAO (RO) NO. 41 OF 2020

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AGAINST THE JUDGMENT AND DECREE DATED 17/11/2020 IN AS 293/2016 OF
ADDITIONAL DISTRICT COURT, NEYYATTINKARA

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AGAINST THE JUDGMENT AND DECREE DATED 28/03/2014 IN OS 987/2011 OF
PRINCIPAL MUNSIFF COURT, NEYYATTINKARA

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APPELLANT/RESPONDENT:

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APPUKUTTAN NAIR,
AGED 75 YEARS,
S/O.MADHAVAN PILLAI, LEKSHMI VILASOM, KANJAMPAZHINJI
DESOM, THIRUPPURAM VILLAGE - 695 133.
BY ADVS.
V.G.ARUN (K/795/2004)
SMT.V.JAYA RAGI
SRI.R.HARIKRISHNAN (KAMBISSERIL)
SRI.NEERAJ NARAYAN

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RESPONDENT/APPELLANT:

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1SADASIVAN NAIR, AGED 52 YEARS, S/O.SUKUMARAN NAIR, PARU
NIVAS, KANJAMPAZHINJI DESOM,
THIRUPPURAM VILLAGE - 695 133.

¶12

2SREKANDAN NAIR, AGED 46 YEARS, S/O.SUKUMARAN NAIR,
PAYYATTUVILAKATHU VEEDU, KANJAMPAZHINJI DESOM,
THIRUPPURAM VILLAGE - 695 133.

¶13

3 RADHAKRISHNAN NAIR, AGED 44 YEARS, S/O.SUKUMARAN NAIR, PAYATTUVILAKATHU VEEDU, KANJAMPAZHINJI DESOM, THIRUPPURAM VILLAGE - 695 133.

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4 SANTHAKUMARI, AGED 45 YEARS, W/O.VENUGOPALAN NAIR, HARISREE, KANJAMPAZHINJI DESOM, THIRUPURAM VILLAGE - 695 133.

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5 VISHNU GOPAL, AGED 24, S/O.VEBUGOPALAN NAIR, HARISREE, KANJAMPAZHINJI DESOM, THIRUPURAM VILLAGE - 695 133.

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6 JISHNU GOPAL, AGED 22, S/O.VENUGOPALAN NAIR, HARISREE, KANJAMPAZHINJI DESOM, THIRUPURAM VILLAGE - 695 133. BY ADVS. SRI.ABDUL RAOOF PALLIPATH SRI.K.R.AVINASH (KUNNATH) SRI.E.MOHAMMED SHAFI SHRI. RAJ CAROLIN V.

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 01.04.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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FAO (RO) NO. 41 OF 2020 2

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JUDGMENT

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An order of remand was passed in a suit for

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fixation of boundary by the first appellate court
after setting aside the decree and judgment of the
trial court on the simple reason that the property of
the defendants was not scheduled in the plaint. The
first appellate court has committed a grave error in
the exercise of jurisdiction. In a suit for fixation
of boundary, it is not at all necessary to schedule
the property of the defendants firstly, on the ground
that the extent, survey number and other details
showing the property of the defendants may not be
available to the plaintiff. Secondly, for fixing the
boundary of the plaintiff's property, it is not at
all necessary to schedule the property of the
defendants. It is really not a ground of attack or a
valid reason to set aside the judgment and decree of
the trial court. The first appellate court has
committed a grave mistake by applying a proposition
that in a suit for fixation of boundary, the
description of properties of both the parties

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FAO (RO) NO. 41 OF 2020 3

¶23

(plaintiff and defendants) should be included in the
plaint as separate schedules by relying on a decision
rendered by this Court in Nandakumara Varma and
another v. Usha Varma and Another (2015 (1) KLJ 73)
by extracting paragraph 6 of the said judgment, which
is extracted below for reference:

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 “6.In a suit for fixation of
boundary, it is not the boundary of the
plaintiff alone that is fixed. It is the
boundary between the property of the
plaintiff and the defendant that is fixed.
This necessitates description of the
properties of both parties in separate
schedules in the plaint and the plaintiff
making a prayer for fixation of the
boundaries between the properties.”

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2. It is only a casual observation made by this

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Court and no adjudication was rendered on that point.
Hence, it would constitute only an obiter dicta and
not a ratio decidendi and it will not have any
binding precedent. There is no provision anywhere in
the C.P.C. mandating incorporation of property of the
defendants as plaint schedule. But, for the sake of
convenience, the plaintiff may incorporate the
property of the defendants also as a schedule to the
plaint. That does not mean that in order to maintain

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FAO (RO) NO. 41 OF 2020 4

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a suit on immovable property and even in the case of
fixation of disputed boundary, the plaintiff has to
schedule the property of the defendants as a separate
schedule to the plaint. No such mandate can be
gathered from any provisions in the law in force.

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3. Yet another grave mistake in the exercise of
its jurisdiction has also been committed by the first
appellate court. The first appellate court did not
understand the jurisdiction vested with it while
ordering remand. It can be exercised in accordance
with the mandate under Rule 23, 23 A and 24 of Order
XLI C.P.C. Without adhering to the abovesaid
provisions, the first appellate court has adopted an
easy walk over by ordering reverse driving, that too,
without any sufficient reason and without attending
the dispute involved. Hence, the said practice is
highly deprecated. The jurisdiction to be exercised
by the first appellate court while ordering remand
has been settled and summarised by this court in
Gopalakrishnan and Another v. Ponnappan and Others
(2021 (5) KHC 548). Very recently, the very same
legal position has been settled by the Apex Court in

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FAO (RO) NO. 41 OF 2020 5

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Nadakerappa Since Deceased by Lrs. & Ors. v. Pillamma
Since Deceased by Lrs. & Ors. (2022 LiveLaw (SC)
332). Earlier, the Apex Court in Bhairab Chandra
Nandan v. Ranadhir Chandra Dutta (1988 KHC 882) had
settled the legal position pertaining to the
jurisdiction vested with the first appellate court
while ordering remand. All these legal position
settled has been overlooked by the first appellate
court. Hence, the order of remand is hereby set
aside. The parties shall appear before the first
appellate court on 23/05/2022. The first appellate
court shall dispose of the appeal within three months
thereafter in accordance with the law in force.

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The appeal is allowed accordingly. No costs.

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The Registry is directed to send a copy of this
judgment along with a copy of the impugned order to
the Director (Academics), Kerala Judicial Academy for
future guidance.

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Sd/-

¶35

P.SOMARAJAN JUDGE

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msp

Appukuttan Nair v. Sadasivan Nair

Case brief

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Appukuttan Nair v. Sadasivan Nair

Case brief

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