IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 FAO.No. 382 of 2010() ------------------------------ AS.2/2009 OF SUB COURT, PERUMBAVOOR OS.467/1998 OF MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/4TH RESPONDENT/4TH DEFENDANT ---------------------------------------------------------------------- JONACHAN, AGED 48 S/O.OUSEPH, OVUMGAMALY HOUSE, PULLUVAZHY KARA, RAYAMANGALAM VILLAGE, KUNNATHUNADU TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR), SRI.GEORGE VARGHESE KIZHAKKAMBALAM. RESPONDENTS/APPELLANTS AND RESPONDENTS 1 TO 3/PLAINTIFFS & DEFENDANTS 1 TO 3: -------------------------------------------------------------------------------------------------------- 1. VARKEY, AGED 73 YERAS, S/O.PAILY, KALAMMALY HOUSE, RAYAMANGALM KARA, RAYAMAGALAM VILLAGE, KUNNATHUNADU TALUK. 2. DEVASSY, AGED 56, S/O.CHACKO, NANGELIMALIL HOUSE, PULLUVAZHY KARA, PULLUVAZHY VILLAGE, KUNNATHUNADU TALUK. 3. MARY, AGED 50, W/O.KURIAKOSE, PADIKKAKUDY HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK. 4. BIJU, AGED 35, S/O.KURIAKOSE, PADIKKAKUDY HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK. 5. BAIJU, AGED 33, S/O.KURIAKOSE, PADIKKAKUDY HOUSE, NEDUNGAPRA KARA, VENGOOR VILLAGE, KUNNATHUNADU TALUK. R1 & R2 BY ADV. SRI.P.CHANDRASEKHAR. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - F.A.O.No. 382 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of December , 2011 J U D G M E N T The 4th defendant in O.S.467 of 1998 before the Munsiff's Court, Perumbavoor is the appellant. The order under challenge is the order of remand in A.S.No.2 of 2009 dated 13.10.2010 by the lower appellate court, namely Sub Court, Perumbavoor. 2. As discernible from the records the original plaintiff and original defendants had assigned their share to respective additional plaintiff and additional defendant. Initially issues relate to the right of quasi easement over the property owned and possessed by predecessor in interest of the 4th defendant. The plaint pathway was shown as C schedule. 3. The trial court after an elaborate consideration of the case found that the rights were not established and accordingly dismissed the suit. The matter was carried in appeal as A.S.No.2 of 2009. At the appellate stage the -:2:- F.A.O.No. 382 of 2010 plaintiff moved an application as I.A.No.368 of 2009 to amend the plaint deleting the prayer for declaration of quasi easement right and to incorporate a claim for easement by prescription and also for a mandatory injunction. It appears that the lower appellate court allowed the amendment application and thereafter simply remanded the matter for fresh consideration. 4. Both the plaintiffs and defendants have come up in appeal against the said order. According to the plaintiff who has filed cross objection in this appeal there were enough material on record to establish the plea of prescriptive right of easement and it was quite unnecessary for the lower appellate court to have remand the matter to trial court for fresh consideration. The defendant who has come up in appeal before this Court on the other hand says that the amendment ought not to have been allowed. The defendant would also contend that it was unnecessary to remand the case as there were materials already on record -:3:- F.A.O.No. 382 of 2010 on the basis of which decision could have been arrived at. 5. Since both the parties are of the opinion that the remand is unnecessary as there are materials already available to decide the issue that may arise for consideration even after amendment, the remand order has to be interfered with. It is significant to notice that lower appellate court has not considered the merits of the case at all, the court simply allowed the amendment application and remand the matter to the trial court in accordance with law. In the light of the stand taken by the plaintiffs and defendant before this Court a remand is quite unnecessary. Accordingly this appeal is allowed, the impugned judgment is set aside and the lower appellate court is directed to decide the matter on merits on the available materials considering rival contentions. If the defendant seeks to file additional written statement in view of the amendment to the plaint, the lower appellate court may receive the same and dispose of the appeal in accordance with law. -:4:- F.A.O.No. 382 of 2010 No order as to costs. Send a copy of this judgment to lower appellate court. P.BHAVADASAN, JUDGE kkj