IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 FAO.No. 326 of 2008() --------------------- AS.172/2004 of ADDL.DISTRICT COURT (ADHOC)-III, THALASSERY OS.449/1999 of MUNSIFF COURT, THALASSERY .................... APPELLANT/ APPELLANT/1ST DEFENDANT ----------------------------- K.P.DILEEP KUMAR KANNOTH PARAMBATH HOUSE, THIRUVANGAD AMSOM DESOM THROUGH POWER OF ATTORNEY HOLDER, C.V.RAJEENDRAN S/O.LATE GOPALAKRISHNAN,KUNHIPARAMBATH HOUSE P.O.ERANHOLI, THALASSERY. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS/RESPONDENTS/PLAINTIFFS & D2 --------------- 1. K.P.MANI, S/O.JANAKI AMMAA EDAKKAD AMSOM DESOM, NOW RESIDING AT PARAMBATH HOUSE, CHIRAKKARA, THIRUVANGAD AMSOM DESOM. 2. NILATHIYIL AMRITHA, D/O.NARAYANI AMMA THIRUVANGAD AMSOM DESOM. 3. T.K.RAJEEV, S/O. SREEDEVI BUILDING CONTRACTOR, NEAR KUNHAMPARAMBA U.P.SCHOOL CHIRAKKARA, THIRUVANGAD AMSOM DESOM. ADV. SRI.A.MOHAMED MUSTAQUE FOR R1 & 2 SRI.KAUSER EDAPPAGATH FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.5411/08. IN FAO 326/08 DISMISSED 26/2/2009 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ F.A.O.NO.326 OF 2008 ------------------------------------------ Dated 26th February 2009 JUDGMENT First defendant in O.S.449/1999 on the file of Munsiff court, Thalassery is the appellant. Respondents 1 and 2 are plaintiffs and third respondent, second defendant in the suit. Suit was filed for mandatory and prohibitory injunction contending that the appellant has constructed a building encroaching upon a portion of plaint A schedule property belonging to respondents 1 and 2 and appellant has no right to do so. Therefore, mandatory injunction to remove the construction made encroaching into the plaint A schedule property of respondents 1 and 2 and for a permanent prohibitory injunction restraining further construction encroaching into the property was sought. Appellant along with second respondent filed written statement denying any encroachment and contending that respondents 1 and 2 are not entitled to decree sought for. 2. Learned Munsiff based on the evidence of FAO 326/08 2 PW1, DW1 Exts.A1 to A11, B1 to B5 and C1 and C1(a) and CW1 found that respondents 1 and 2 are not entitled to the mandatory injunction sought for but are entitled to a decree for permanent prohibitory injunction restraining appellant and second respondent from making any obstruction to plaint A schedule property or constructing any wall therein or trespassing into plaint A schedule property. 3. Respondents 1 and 2 did not file appeal challenging rejection of the relief of mandatory injunction sought for. Appellant filed A.S.172/2004 before Additional District court, Thalassery challenging the decree for permanent prohibitory injunction granted against him. 4. Learned Additional District Judge on hearing the appeal found that in O.S.577/1994 on the file of Sub court, Thalassery a final decree was passed wherein respondents 1 and 2 and the assignors of the appellant were parties fixing their properties based on Ext.A3 settlement and evidence of CW1 with Exts.C1 and C1(a) establish that plaint A schedule property was not properly fixed by the Commissioner in accordance with Ext.A3. In such circumstances learned FAO 326/08 3 District Judge set aside the decree and remanded the suit for fresh disposal for proper identification. Order of remand is challenged in this appeal. Appeal was admitted on the following substantial questions of law. 1) Can in an appeal filed against the judgment granting the decree for prohibitory injunction and declining prayer for mandatory injunction, there be a remand of the entire matter, when there is no challenge against the dismissal of the prayer for mandatory injunction? 2) When there is failure on the part of the plaintiff in identifying the property and in proving their possession and alleged encroachment, whether the First Appellate Court was right in remanding the mater, a case where the plaintiffs did not even file an appeal? 2. Learned counsel appearing for appellant and respondents 1 and 2 were heard. 3. Learned counsel appearing for appellant submitted that though the appellate court is competent to remand the suit for fresh disposal based on the FAO 326/08 4 finding that the properties were not properly identified, when respondents 1 and 2 did not file an appeal challenging the dismissal of the claim for mandatory injunction and did not even file a cross objection challenging the findings based on which mandatory injunction was refused, appellate court was not justified in making an open remand inclusive of the relief for mandatory injunction. It was pointed out that mandatory injunction was not granted for two valid reasons. One is that there was delay in filing the suit as plaintiffs did not file the suit while construction is in progress or immediately after the construction was completed. Secondly it was found that if any portion of the building is to be demolished, it would affect the whole building as such and in such circumstances plaintiffs are not entitled to the decree for mandatory injunction. Learned counsel also pointed out that even the said findings of the trial court was not adverted to by the learned District Judge and when the appellant did not challenge that finding, there should not have been an open remand. 5. Learned counsel appearing for respondents 1 and 2 argued that the trial court did not FAO 326/08 5 grant a decree for mandatory injunction because the trial court then accepted the identification made by CW1 the Commissioner in Ext.C1 report and Ext.C1(a) plan and based on that identification it was found that the encroachment is negligible. It was argued that when appellate court found that there was no proper identification and for a proper resolution of the dispute between the parties identification of the properties is necessary, appellate court was justified in making an open remand. Learned counsel pointed out that Rule 33 of Order XLI of Code of Civil Procedure enables the appellate court, even without an appeal or cross objection by the respondent, to make an open remand and in such circumstances, there is no reason to interfere with the decree. 6. Rule 33 of Order XLI of Code of Civil Procedure makes it absolutely clear that the appellate court shall have the power to pass any decree and make any order which ought to have been passed or made by the trial court and that power may be exercised in favour of all or any of the respondents or parties notwithstanding the fact such respondents or parties have not filed any appeal or cross objection. FAO 326/08 6 Therefore, jurisdiction of the learned District Judge to remand the suit cannot be challenged. 7. But the question is when the findings of the trial court for refusing the mandatory injunction was not challenged by the plaintiffs before the first appellate court, either by filing a separate appeal or by a cross objection or at least by challenging that findings at the time of hearing the appeal the discretion exercised by the trial court, which was not challenged before appellate court could be reversed. Judgment of the learned District Judge shows that correctness of the discretion exercised by the trial court to deny the mandatory injunction was not considered by the learned District Judge at all. Learned Munsiff had given valid and proper reasons for not granting a mandatory injunction. As those reasons were not found to be unsustainable or illegal, first appellate court was not justified in directing the trial court to reconsider the question of mandatory injunction. To that extent the order of remand is to be modified. But remand of the suit for proper identification is justified on the facts and circumstances of the case. FAO 326/08 7 8. I find no reason to interfere with the order of remand. But it is made clear that the trial court is not to reconsider the question of mandatory injunction refused earlier and has to decide only the question whether plaintiff is entitled to the decree for permanent injunction. Appeal is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.