Kesavapillai Gopakumar vs Padmanabha Pillai Kumaraswamy @ Palani

S.S. Satheesachandran, J.—Appellant is the plaintiff in O.S. No. 396 of 1999 on the file of the IInd Additional Munsiff''s Court, Neyattinkara. He has filed this appeal challenging the order of remand passed in A.S. No. 10 of 2003 by the learned Sub Judge, Neyattinkara, by which, the decree passed in his favour in the suit was set aside and the case was remanded for fresh disposal. Short facts necessary for disposal of the appeal can be summed up thus:-

Plaintiff filed the above suit for declaration of title, injunction and fixation of boundary with an alternative relief for recovery of possession. Plaint schedule property having an extent of 15 cents obtained by plaintiff under Ext. A1 sale deed has a common boundary on its eastern side with the property of defendant. That property has well defined boundaries on other sides and on the west it has common boundary with another property of plaintiff having fifty cents, was his case. Since there was no clear cut boundary on the eastern side defendant made attempts to trespass upon the property was the case pleaded for declaration of title and prohibitory injunction against defendant and for fixation of the eastern boundary of the property. Plaintiff also sought for recovery of possession if any portion of the plaint property was found in possession of the defendant as an alternative relief. Defendant challenged the title claimed by plaintiff and also description of the plaint property. Separating the properties of plaintiff and defendant, there is a very old fencing was his case to contend that fixation of boundary was not required. On the pleadings of parties, necessary issues were raised by the court on which both sides adduced evidence. Relying on Exts. C1 and C1(a) report and plan prepared by a commissioner and accepting the case of plaintiff, the trial court declared his title and possession over the plaint schedule property. A decree of prohibitory injunction was also passed against defendant from trespassing upon the property. Plaintiff was also allowed to put up a boundary on the line fixed by commissioner in Ext. C1(a) plan. Aggrieved by the decision, defendant filed the appeal, A.S. No. 10 of 2003, and the learned Sub Judge, after hearing both sides and re-appreciating the materials tendered in the case set aside the decree and remanded the case for fresh disposal. Additional evidence produced by appellant (defendant) was received, and on its basis order of remand was passed.

I heard the counsel on both sides. Learned counsel for appellant/plaintiff vehemently urged that reception of additional evidence produced in the appeal by defendant was improper and setting aside of the decree acting upon such additional evidence holding that the property has not been properly identified cannot be sustained. After looking into the judgments rendered by the trial court and also the appellate court, I find that the challenge canvassed to assail the order of remand passed by the learned Sub Judge in appeal cannot be accepted. Identification of plaint property by the commissioner, examined as DW 1, was solely based on Ext. A1 title deed of plaintiff and Ext. A3 the deed over the property of defendant situate on its eastern side. Going through the description over the properties given under those documents, it is seen, identification of one acre three cents of land, in which properties of plaintiff and defendant formed part thereof, could not have been made by advocate commissioner on the above deeds alone. Properties of plaintiff and defendant formed part of the property covered by a previous decree passed by the court and it is so stated in Ext. A3 title deed of defendant as well. When the case came up in the list, defendant had applied for removal of the case seeking an opportunity to produce the decree referred to above, but, that was declined. He produced that decree with the plan appended in his appeal. Learned Sub Judge found that it was a relevant material for a fair and proper adjudication of the suit in as much as for identifying the plaint property over which the plaintiff canvassed for declaratory and other reliefs. I do not find any impropriety, leave alone any illegality, in the view taken by the court below for setting aside the decree of trial court and remanding the case for fresh disposal where it is demonstrated that identification of plaint property under Ext. C1(a) plan cannot be acted upon. I do take note the plan in the decree produced as additional evidence is not prepared on survey measurements and further it does not contain details of all side measurements of the properties which include plaint property and that of defendant. However, that decree with survey plan and other materials including Ext. A3 title deed would be of much assistance in identifying the plaint property. Out of the one acre three cents of property described under the above decree, admittedly, defendant obtained 38 cents on its eastern side, and the rest belonged to plaintiff. Suit filed by plaintiff is confined to 15 cents adjoining to the property of defendant situate on its eastern side. Property comprising 50 cents situate on the western side of plaint property, admittedly, belongs to plaintiff. When that be so, plaintiff can produce the title deed to that property also with other records referred to above to locate and identify the plaint property, to sustain the reliefs canvassed in his suit. Ext. C1(a) plan prepared by the commissioner which was based solely on Exts. A1 and A3 was rightly found to be not acceptable by the learned Sub Judge, to fix the identity of plaint property. Decree passed by the trial court based on Ext. C1(a) plan was thereupon interfered with and the case was remanded for identification of the property with reference to the decree and plan produced by the defendant in appeal. Proper identification of plaint property with reference to such decree and other materials referred to above, is called for in the case to sustain the reliefs canvassed by the plaintiff in the suit, more so for fixing the eastern boundary of the property separating it from that of defendant. That being so, I find challenges against the order of remand canvassed by plaintiff are only to be turned down.

Parties are directed to appear before the court below on 18.12.2013. Learned Munsiff shall take note of the observations made above, and afford opportunity to plaintiff to take out a fresh commission to identify the plaint property and both parties, to lead further evidence in the case. There will be a direction to the learned Munsiff to expedite the trial of the case for its disposal at an early date, at any rate, within eight months from the date of receipt of a copy of this judgment.

Subject to the above observations/directions, the appeal is dismissed. Both parties to suffer their respective costs.