IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 5TH JUNE 2007 / 15TH JYAISHTA 1929 CMA.No. 51 of 2003() -------------------- AS.249/2001 of V ADDL. DISTRICT COURT, ERNAKULAM OS.573/1996 of II ADDL.M.C., ERNAKULAM .................... APPELLANTS: 1ST RESPONDENT/PLAINTIFF: --------------- 1. LOUIS ANTHONIKKUTTY, AGED 78, S/O. LATE LOUIS, KAVALAPARAMBIL HOUSE, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. ADDL. 2. NEBU @ CHACKOCHAN, S/O. LATE LOUIS ANTHONYKKUTTY, AGED 36, RESIDING AT KAVALA PRAMBIL, KONTHURUTHY, THEVARA, ERNAKULAM. ADDL. 3. LOUIS ANTHONY, S/O.LATE LOUIS ANTHONIKUTTY, AGED 44, RESIDING AT KAVALA PARAMBIL, KONTHURUTHY, THEVARA, ERNAKULAM, PRESENTLY WORKING AT U.S.A. (ADDL. APPELLANTS 2 AND 3 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT VIDE ORDERS DT. 7.2.2005 IN I.A.No.361/2005) BY ADV. SRI.C.K.ARAVINDAKSHA MENON. SRI.K.C.CHARLES SRI.A.BALAGOPALAN RESPONDENTS: APPELLANTS 1 TO 6 & RSPTS.2 TO6 IN AS/DFDTS. 2TO12 IN OS.NO.573/96 ----------------- 1. ELIAMMA, W/O. K.G.GEOREGE, ATTUPURATH, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 2. DR.GEORGE ALIAS MAMACHAN, S/O. GEORGE, K.G.CLINIC, EAST OF KALOOR BUS STAND, KOCHI-17. C.M.A.No.51/2003 2 3. SEBASTIAN, S/O. GEORGE, KAVALAPARAMBIL, CHATTUKADU, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 4. LOUIS, S/O. GEORGE, ATTUPURETH, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 5. JOHNY, S/O. GEORGE, ATTUPURATH, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DIST. 6. SASH GEORGE, SON OF GEORGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, SEBASTIAN, S/O. GEORGE, KAVALAPARAMBIL, CHETTUKATTU, KONTHURUTHY, ELAMKULAM VILLAGE, KANAYANNUR TALUK. 7. MARY PHILOMINA K.G. ALIAS OMANA, D/O. GEOREGE, ATTUPURATH, KONTHURUTHY, NOW RESIDING AT MATTAPPILLIL HOUSE, OLAMATTAM, THODUPUZHA-685 584. 8. ANNIE, D/O. GEORGE, ATTUPURATH, KONTHURUTHY, NOW RESIDING AT "ANITHOTTAM", SOUTH PIPE LINE ROAD, 35/2076, PALARIVATTOM-682 025, ERNAKULAM. 9. THRESSIAMMA, D/O. GEORGE, ATTUPURATH, KONTHURUTHY, NOW RESIDING AT KALBOR HOUSE, MANAKKAPPADY, KARUMALLOOR P.O., PIN-683 511, NORTH PARAVUR. 10. GRACY, D/O. GEORGE, ATTUPURATH, KONTHURUTHY, NOW RESIDING AT NEDUMPURATH PALATHINGAL, POONITHURA P.O., NEAR GANDHI SQUARE-682 317. 11. LISSY, RESIDING AT MUTHIRAPPARAMBIL, D/O. GEORGE, ATTUPURATH, KONTHURUTHY, NOW RESIDING AT MUTHIRAPARAMBIL, ANGAMALY-683 572. BY ADV. SRI.K.DIVAKARAN NAIR THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 05/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No.51 of 2003 ------------------------------- Dated this the 5th June, 2007. J U D G M E N T The plaintiff in O.S.No.573/1996, on the file of the II Additional Munsiff's Court, Ernakulam, is the appellant, in this Civil Miscellaneous Appeal. This appeal is filed challenging an order of remand passed by the lower appellate court. Plaintiff filed the suit for declaration of his title and injunction. The admitted case of the plaintiff is that originally the property was a Government land. According to plaintiff, he is the son of one Louis. It was averred that the properties were got assigned by Lonan, the brother of his father and Louis, his father, under Ext.A2, which is described as a receipt issued for ground value. It is admitted by the plaintiff that Lonan had wife and children. It is also admitted by him that his father had other children, other than the plaintiff. In the plaint itself, it is admitted that after the death of Louis, properties were inherited by the plaintiff, his mother and brother. But he claimed exclusive title and possession over the property. The first defendant is another brother of Louis and Lonan. He contented that plaintiff did not get any title or right over C.M.A.No.51/2003 2 the property, but it was seen in his possession. Though plaintiff claimed absolute title and possession, Trial Court decreed the suit holding that plaintiff is a co-owner. 2. Challenging that decree and judgment, defendants filed A.S.No.249/2001, before the V Additional District Court, Ernakulam. After considering the pleadings and evidence in the matter, the learned District Judge held that since the plaintiff is claiming exclusive title, he ought to have impleaded other co-owners. On account of the non-joinder of parties, the suit was remanded back to Trial Court, setting aside the decree and judgment, giving an opportunity to plaintiff to implead other co-owners. Before the lower appellate court, defendants 3 to 7 filed a petition for accepting additional evidence. The lower appellate court gave permission and remanded the matter, with liberty to both sides to adduce further evidence before Trial Court. Challenging that remand order, this C.M.A. is filed. 3. Though no substantial questions of law were framed in the appeal memorandum, subsequently appellant filed I.A.No.1804/2007, in which he has raised the following questions of law:- C.M.A.No.51/2003 3 “ a. Whether in the facts and circumstances of the case, the Lower Appellate Court is justified in remanding the case to the Trial Court when the respondents have not taken out ground in the Appeal Memorandum to the effect that they were not given ample opportunity to adduce evidence. b. Whether in the facts and circumstances of the case, the Lower Appellate Court below is justified in holding that the suit is bad for non-joinder of necessary parties when the defendants have not pleaded non joinder and when the Trial Court granted a decree in favour of the appellants only as co owners of the suit property. c. Whether the Lower Appellate Court is justified in observing that the documentary evidence produced by the respondents before that Court are relevant, without even going into the contents of the same, and without considering the same in accordance with Order 41 Rule 27 of the Code of Civil Procedure. 4. Before the Lower Appellate Court, appellant relied on the decision reported in Sanjiva Chetty v. Kumme Mahabala Bhat (S.A.No.44/1997). The Lower Appellate Court distinguished the decision and took a view that since plaintiff has claimed exclusive title, he had to implead other co-owners. It is further made clear that co- owner alone can maintain a suit, provided, he admits the right of other co-owners. If a co-owner files a suit claiming exclusive title and possession, and denies the title of other co-owners, then other co- owners are to be on the party. So, plaintiff can either opt to maintain C.M.A.No.51/2003 4 the suit as a co-owner for and on behalf of other co-owners, or to claim exclusive title, in which case, he will have to implead the other co-owners. The Lower Appellate Court, while remanding the case, was not justified in directing the plaintiff to opt either of the choices. If he claims exclusive title, he may have to implead other co-owners. It is also open to him to admit the right of others, and amend the pleadings. What should be the next course opened to the plaintiff is a matter to be decided by him, not by the court. So, the direction issued by the Lower Appellate Court that plaintiff shall implead other co-owners alone is vacated. But the remand order is sustained. It is open to both sides to amend the pleadings and adduce further evidence, if so adviced. In the result, this Civil Miscellaneous Appeal is dismissed, subject to the above observations. K.PADMANABHAN NAIR, JUDGE nj. K.PADMANABHAN NAIR, J. ------------------------------- C.M.A.No. 51 of 2003 J U D G M E N T Dated: 5th June, 2007. -------------------------------