IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 FAO.No. 259 of 2005() --------------------------- AS.87/2003 of SUB COURT, NEYYATTINKARA .................... APPELLANT/1ST RESPONDENT/PLAINTIFF : ---------------------------------------------------- 1. EMILY NADATHY DELSY NADATHY, RESIDING AT DARPPAVILAKAM ROADARIKU PUTHEN VEEDU, EDAVAL DESOM, HAVING ALSO UDIYARATHALA VILAKATHU PUTHEN VEEDU, PULLACHAKONAM, CHEMPOOR DESOM, KEEZHAROOR VILLAGE. * 2. VARJALOSE, S/O.DELSY NADATHI, AGED 60, PALARAVILAKOM, GILBERT HOUSE, CHEMPOOR DESOM, KEEZHAROOR VILLAGE, OTTASEKHARAMANGALAM. * 3. JOHN WILFRED, S/O.DELSY NADATHI, AGED 54 OF DO- DO- * 4. VICTORIA, D/O.DELSY NADATHI, AGED 58 OF DO-DO- * 5. RASALAMMA, D/O.DELSY NADATHI, AGED 56 OF DO-DO BY ADV. SRI.L.MOHANAN SMT.LIGEY ANTONY SRI.M.V.KIRAN MOHAN * ADDL. APPELLANTS 2 TO 5 ARE IMPLEADED AS PER ORDER DATED 06.11.2008 IN I.A.NO.1337 OF 2007 RESPONDENTS/APPELLANTS/DEFANDANTS 4 & 17 : --------------------------------------------------------------- 1. KADAKSHAM ASSARI, RESIDING AT UTHIYARATHATTU VILAKATHU PUTHEN VEEDU, PULLACHAKONAM, CHEMBOORU DESOM, KEEZHAROOR VILLAGE FAO.No. 259 of 2005 2. GILBERT, S/O. SELVANOSS, RESIDING AT NIRMALA BHAVAN OF -DO- -DO-. ADV. SRI.G.S.REGHUNATH - R1,R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO.No. 259 of 2005 ORDER ON I.A.NO.3478 OF 2005 IN F.A.O.NO.259 OF 2005 DISMISSED 06.11.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J ----------------------- F.A.O.No. 259 OF 2005 --------------------------------- Dated this the 6th day of November, 2008 JUDGMENT This appeal is preferred against the judgment of the Subordinate Judge, Neyyattinkara in A.S. No. 87/03. The said appeal was preferred against the passing of final decree in I.A. 1399/2001 in O.S. 1046/1989. The suit is one for partition. In the final decree application the trial Court accepted the Commissioner's plan and report and passed a final decree and also opined that the objection raised by the other side are false and baseless. It is against that decision, the appeal was preferred. The appellate judge, after elaborately considering the matters, passed a judgment whereby he remanded the case back to the Trial Court. It is against that decision, the first plaintiff has come up with this F.A.O. 2. The learned counsel for the appellant very strongly contends before me supported by decisions that appellate court does not have the power to remand a case against the provisions under Order XLI Rule 23 and 23A and much less to interfere with the decision rendered by the Trial Court in such matters. The Apex F.A.O.No. 259 OF 2005 -2- Court held in very many decisions that unless there is substantial question of law involved in an 'FAO' it cannot be entertained. It has to be remembered that the Apex Court has always reminded that the dictum and principles laid down in a particular decision has to be extended to other cases only upon the facts and circumstances of the case which comes up for consideration before that court. With this in mind, let me consider this case. The suit is one for partition and a preliminary decree has been passed by the Trial Court with respect to 4 acres 86 cents of property in 'A' schedule and also for redemption of the 'E' schedule. When the matter was taken up before the appellate Court, the appellate Court reversed the finding with respect to property of 'E' schedule and thereby confirmed the preliminary decree with respect to the division of 4 acres 86 cents of 'A' schedule in the decree. A perusal of the Trial Court judgment in the preliminary decree would reveal that large extent is involved and during pre-litigation stage predecessors and others have transferred the property and those properties are ordered to be excluded and that is why ultimately it enters into a finding regarding extent of the property to be divided. The appellate court on an elaborate consideration found that the Trial F.A.O.No. 259 OF 2005 -3- Court has not fixed the property to be divided but has blindly accepted the commissioner's report and passed a final decree. There is some force in the said contention. When out of a large extent only a portion of property is ordered to be divided first of all it has to ascertain that property before actually effecting it by metes and bounds. At the same time it does not mean that the entire matter has to be reopened to find out the whole thing or retrial is necessary which will have a nugatory effect. But at the same time, the court should be definite specific and confident about the property that is ordered to be divided. It is for that purpose, the appellate court has directed the court below to consider and pass a revised decree after considering the objections. Unfortunately, due to the non co-operation to a limited extent by the respondents in this FAO, the objections were not highlighted. The Commissioner was not examined and so naturally the Trial Court accepted the Commissioner's report and passed a final decree. But now in order to put the matters straight I permit both the parties to substantiate their contentions even by permitting the Commissioner to be examined in the case and in case of necessity, to call for additional report from the Commissioner and then dispose of the matter in F.A.O.No. 259 OF 2005 -4- accordance with law. So I do not want to interfere with the said decision rendered by the Appellate court. But at the same time, it has to be stated that on the basis of the final decree passed by the Trial Court, execution has taken place and the plaintiff has been put in possession of the property by deputing a Amin from the court for delivery. That delivery is also recorded. So till the final disposal of the case, let that position continue and the possession of the property be not disturbed. When ultimately the court feels that some interference or modification here and there is necessary it may pass appropriate orders if any rectification is called for. With these observations the appeal is disposed of. M.N. KRISHNAN, JUDGE vkm