Remanded

Suma Christal v. Upendran

Kerala HC12 Mar 2024RSA/1336/2013

Case brief

AI extract

What is this about?

The High Court set aside judgments in a suit for declaration of title and injunction, remanding the matter to the trial court. The appellate court was held to have erred by adjudicating title without the trial court framing an issue on title and by allowing amendment of the plaint schedule without giving defendants an opportunity to file additional written statements.

What did the court decide?

Judgments set aside; suit and counterclaim remanded to trial court for fresh disposal within six months with proper issues and opportunity to defendants.

Suma Christal Vs Upendran — Property and Title | Kerala HC (2024)

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R.S.A.No.1336/2013

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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TUESDAY, THE 12^TH DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 RSA NO. 1336 OF 2013

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AGAINST THE JUDGMENT DATED 21.06.2013 IN AS NO.63 OF 2012 OF II ADDITIONAL DISTRICT COURT,THIRUVANANTHAPURAM ARISING OUT OF THE JUDGMENT DATED 07.02.2012 IN OS NO.373 OF 2008 OF II ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANTS/RESPONDENTS 2 & 3/DEFENDANTS 2 & 3:

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1 SUMA CHRISTAL, AGED 49 YEARS SUMA COTTAGE, PADINJAM MURI, MENAMTHOTTAMPADI, KIZHAKKUMBHAGHAM VILLAGE, CHIRAYINKEEZHU TALUK, (REPRESENTED BY THE POWER OF ATTORNEY HOLDER, THE 2ND APPELLANT HEREIN).

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2 DASAYYAN AGED 66 YEARS SANDAS TRADERS AND SANDAS CONSTRUCTION, NEAR ORIENTAL INSURANCE COMPANY, ULLOOR, THIRUVANANTHAPURAM.

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BY ADVS. SMT.MAJIDA.S SRI.AJIKHAN.M SRI.REJI.A.RASHEED

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RESPONDENT:

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1 UPENDRAN AGED 48 YEARS S/O.PONNAPPAN, RESIDING AT UPENDRA VILASOM, VAYAKKATHUMURI, ATTIPRA VILLAGE, KULATHOOR P.O., THIRUVANANTHAPURAM, PIN 685583.

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R.S.A.No.1336/2013

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2 JOHN ESO AGED 54 YEARS S/O.PALLIPPURATHUVARKEY, PADINJAM MURI, MENAMTHOTTAMPADI, KIZHAKKUM BHAGHAM VILLAGE, CHIRAYINKEEZHU TALUK, 695504.

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BY ADVS. SRI.GOVIND PADMANAABHAN SRI.S.HARIKRISHNAN SRI.MOHAN GEORGE SRI.RAM MOHAN.G. SRI.G.P.SHINOD

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

R.S.A.No.1336/2013

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J U D G M E N T

Dated this the 12^th day of March, 2024

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This appeal has been preferred challenging the decree and judgment of the II Additional District Court, Thiruvananthapuram (for short 'the appellate court') in A.S.No.63/2012 dated 21.6.2013.

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The appellants are defendants Nos. 2 and 3 in O.S.No.373/2008 before the II Additional Munsiff's Court, Thiruvananthapuram (for short 'the trial court') and the respondents are the plaintiff and the defendant No.1, respectively. The appellant No.2 died during the pendency of this appeal. The appellant No.1, who is the daughter of the appellant No.2, has been recorded as her legal heir.

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In this judgment, I refer to the status of the parties as plaintiff and defendants.

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The original plaintiff, namely Upendran, instituted the suit initially seeking relief of permanent prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property or demolishing the boundary wall that

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R.S.A.No.1336/2013

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separates the plaint schedule property from the property of the defendants. The defendant No.1 remained ex-parte. The defendant Nos. 2 and 3 entered appearance and filed written statement disputing the plaint averments. Defendant No.2 raised a counterclaim seeking declaration over the B-scheduled property shown in the counterclaim, which includes the plaint scheduled property and also for a mandatory and prohibitory injunction. Thereafter, the plaintiff amended the suit further, seeking a declaration of title over the plaint scheduled property. The trial court raised the following issues:

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i. Whether the plaintiff has got possession over the plaint schedule property?

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ii. Whether the plaintiff is entitled to get a decree of prohibitory injunction as prayed for?

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iii. Whether the 2^nd defendant has absolute title & possession over counterclaim 'B' schedule property?

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iv. Whether the 2^nd defendant is entitled to get a decree of declaration as prayed for?

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v. Is the prayer for mandatory injunction allowable?

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vi. Whether the 2^nd defendant is entitled to get a decree of prohibitory injunction as prayed for?

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vii. Reliefs and costs.

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R.S.A.No.1336/2013

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The parties went on trial. On the side of the plaintiff, PW1 to PW3 were examined and Exts. A1 to A6, C1, C1(a), C2, C2(a) and X1 to X3 were marked. On the side of the defendants, DW1 was examined and Exts. B1 to B6 were marked. After the trial, the trial court dismissed the suit and decreed the counterclaim in part, declaring the title of defendant No.2 over the B-schedule property. The plaintiff challenged the judgment of the trial court before the appellate court in AS.No.63/2012. There was no representation for the contesting defendants before the appellate court. The plaintiff/appellant alone was heard. The appellate court set aside the judgment of the trial court and allowed the appeal. The plaintiff's title and possession over the plaint schedule property were declared. The permanent injunction sought was also granted. The counterclaim was dismissed. It is challenging the said judgment and decree, the defendant Nos. 2 and 3 are before us.

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I have heard Smt. Majida S., the learned counsel for the appellants and Sri. G.P. Shinod, the learned counsel for the respondents.

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As stated already, the suit was initially instituted for

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an injunction simplicitor. However, in the pleadings, the plaintiff pleaded that he has title and possession over the entire plaint schedule property. The contesting defendant Nos. 2 and 3 in the written statement denied the plaintiff's title and possession over the plaint schedule property and also set up a rival title by way of counterclaim. After defendants Nos. 2 and 3 set up such a rival title, the plaintiff amended the suit, seeking a declaration of title and possession over the plaint schedule property. However, it appears that the trial court did not frame any issue on title. The proceedings paper does not show that there was a posting for filing additional written statements, and that defendant Nos. 2 and 3 had actually filed additional written statements. However, the learned counsel for the respondent/plaintiff made available to me a copy of the additional written statement filed by defendant Nos. 2 and 3 at the trial court. At any rate, no issue on title was framed by the trial court. A reading of the trial court judgment would show that the trial court did not consider the question of the title of the plaintiff over the plaint schedule property. In other words, the trial court considered the plaintiff's possession alone over the plaint schedule property.

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R.S.A.No.1336/2013

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The trial court dismissed the suit mainly on the ground that the plaintiff failed to prove his possession over the plaint schedule property. To arrive at the said finding, the trial court took note of the difference in the old survey number of the plaint schedule property shown in the title deeds (Exts. A1 and A2) and in the schedule of the plaint. The trial court also found that the plaintiff could not prove the cause of action. At the appellate stage, the plaintiff/appellant filed an application (IA.No.2883/2012) to amend the old survey number shown in the plaint schedule. The appellate court considered the amendment application along with the appeal, and it was allowed. However, no opportunity was given to the contesting defendants to file an additional written statement.

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Since the trial court did not frame any issue regarding the title of the plaintiff over the plaint schedule property and it did not adjudicate the title of the plaintiff over the plaint schedule property, I am of the view that the appellate court ought not to have considered the question of title. Instead, the appellate court ought to have remanded the matter to the trial court with a direction to frame the issue of title and adjudicate the issue of

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R.S.A.No.1336/2013

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title over the plaint schedule property. That apart, since the dismissal of the suit by the trial court was mainly on the ground of difference in the old survey number of the plaint schedule property, the appellate court, while allowing the amendment application, ought to have granted an opportunity to the defendant Nos. 2 and 3 to file additional written statement. For these reasons, the impugned judgment of the appellate court and the judgment of the trial court is liable to be set aside, and the suit, as well as the counterclaim, is to be remanded to the trial court for fresh consideration.

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In the result, the appeal is allowed as follows:

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a) The judgment and decree of the trial court, as well as the appellate court, are hereby set aside. However, the order passed by the appellate court allowing the amendment application is upheld.

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b) O.S. No.373/2008, as well as the counterclaim claim, are remanded to the trial court for fresh disposal.

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c) The trial court shall frame proper issues regarding the title of the plaintiff over the plaint schedule property. The trial court shall also give opportunity to file additional written

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R.S.A.No.1336/2013

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statements, if any, to the defendant Nos. 2 and 3.

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d) Thereafter, the trial court shall give both sides an opportunity to adduce further evidence, if any, and shall dispose of the suit as well as the counterclaim on merits in accordance with law.

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e) Since the suit is of the year 2008, the trial court shall dispose of the case as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment.

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f) The parties shall appear before the trial court on 30.3.2024.

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sd/-

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DR. KAUSER EDAPPAGATH

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JUDGE

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Suma Christal v. Upendran

Case brief

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Suma Christal v. Upendran

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