J. Somarajan vs Mayadas

B. Kemal Pasha, J.—Challenging the common judgment and decree dated 06.08.2008 in A.S. Nos. 4/2006, 5/2006 and 13/2006 of the District Court, Kollam, the respondents have come up in appeal.

The first appellate court, after hearing the parties in extenso, has made certain observations and remitted all the cases to the trial court, after setting aside the judgments and decrees passed by the trial court, thereby directing the trial court to determine all the issues afresh in accordance with law and in the light of the observations made by the first appellate court. It is seriously aggrieved by the observations made by the first appellate court on certain issues and by complaining that those observations have limited the scope of the suit filed by the appellants herein, and also their defence in the other two suits, the present appeals have been filed.

Heard the learned counsel for the appellants Sri. Sreelal N. Warrier and the learned Senior counsel for the respondents Sri. K.K. Chandran Pillai.

In fact, this Court has heard both sides in extenso. Cautiously, this Court is not making any observations with regard to all the evidence and materials brought by both sides to the notice of this Court. The main grievance expressed by the learned counsel for the appellants with regard to the common judgment and decree passed by the first appellate court is that the observations made by the lower appellate court as against the appellants are not in conformity with the evidence in the cases, both oral and documentary. It seems that the trial court has, in fact, made certain observations with regard to Ext. A2. Similarly, it seems that the first appellate court has also made certain observations, which may militate against the claims as well as the defence of the appellants.

It seems that the appellants had filed O.S. 1179/1998. The defendants in O.S. 1179/1998 have filed O.S. 1182/1999. The mother and sister of the plaintiffs in O.S. 1182/1999 as plaintiffs initially filed O.S. 1050/2000. On the death of the mother, the plaintiffs in O.S. 1182/1999 were also impleaded as additional plaintiffs in O.S. 1050/2000.

O.S. 1179/1998 is one filed for perpetual injunction as well as mandatory injunction. The mandatory injunction was for the removal of the portion of a compound wall and perpetual injunction is in the form of a prohibitory injunction restraining the defendants from obstructing the pathway leading to the plaint schedule item. O.S. 1182/1999 and O.S. 1050/2000 are for a declaration that Ext. A3 is void and also for cancellation of the certificate of registration in respect of the Society formed and registered by the defendants in the said suits.

It seems that all the parties are relatives. The dispute seems to be in respect of the alignment of a pathway and the lie of pathway leading to the plaint schedule property in O.S. 1179/1998 as well as the right being claimed by some of the plaintiffs in O.S. 1179/1998 over the plaint schedule property based on Ext. A3. It seems that the lower appellate court was of the view that further evidence is required in the matter. After making certain observations, the lower appellate court has chosen to remit the matter to the trial court for fresh consideration, subject to the observations made by the first appellate court.

On hearing either side, this Court is of the view that this is a matter which ought to have been settled among the parties being relatives for their continued better relationship. The dispute centers around a small portion of land and the pathway leading to it. The alignment of the pathway provided to the two cents of the property set apart as Yogeeswaralayam is also in question. From the Commissioner''s report, it seems that there is no specified pathway as on the date of suits. It seems that the first appellate court has also taken the view that fresh findings have to be entered on all the issues raised by the trial court. At the same time, a interdict was made by the first appellate court that such decisions should be subject to the observations made by the first appellate court. It seems that the appellants are seriously aggrieved in the observations made by the first appellate court.

The learned Senior counsel has pointed out that the trial court has made findings against the validity of Ext. A2 which, in fact, militates against the appellants. It seems that that fact was not adverted to by the lower appellate court. According to the learned counsel for the appellants, even without filing an appeal under Order XLI Rule 22 read with Rule 33 C.P.C., the said aspect can be adverted to by the lower appellate court. On hearing either side, this Court is of the view that the real grievance of the appellants at present is the interdict imposed by the lower appellate court on the part of the trial court in deciding the issues afresh ''subject to the observations made by the lower appellate court''. On hearing either side and considering the fact that the parties are relatives, this Court is of the view that an open remand can be made instead of the restrictions imposed by the lower appellate court. Whatever it is, when the identity of the pathway leading to the Yogeeswaralayam and its alignment is in question, the disputes can be resolved ultimately, only on further evidence in the matter. It cannot be said that the remand order passed by the lower appellate court as such is not correct. At the same time, when such a remand was made, the lower appellate court could have granted an open remand instead of such restrictions on the trial court in deciding the issues afresh. Therefore, this Court is of the view that the remand order passed by the lower appellate court is liable to be modified.

In the result, all these appeals are allowed in part and the impugned judgment and decree are modified as follows:-

The trial court shall permit the parties to adduce fresh/further evidence, if so advised. The trial court shall appreciate the evidence and consider all the issues raised and enter findings on it quite untrammelled by any of the observations made by the trial court in the earlier judgment as well as any of the observations made by the first appellate court in the impugned judgment. The trial court as well as the parties shall make all earnest efforts to have a peaceable solution in the matter by way of a full and final settlement by having recourse to any of the modalities prescribed under Order 89 C.P.C. including mediation. It is made clear that the entire observations made by the lower appellate court are set aside. The parties shall appear before the trial court on 24.11.2014.