IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 6TH FEBRUARY 2008 / 17TH MAGHA 1929 CMA.No. 179 of 2002() -------------------------------- AS.29/2001 of SUB COURT, TIRUR OS.367/1998 of MUNSIFF COURT, TIRUR .................... APPELLANTS: RESPONDENTS/PLAINTIFFS --------------------------------------------------------- 1. PULLANNOOR BALAKRISHNAN NAIR'S WIFE - BHANUMATHI AMMA, 60 YEARS IRIMBILIYAM AMSOM DESOM IN TIRUR TALUK. 2. SANTHAKUMARI, 41 YEARS D/O. LATE BALAKRISHNAN NAIR, DO. DO. 3. MADHUSOODANAN, 35 YEARS, S/O. LATE BALAKRISHNAN NAIR, DO. DO. 4. BEENA, 32 YEARS, D/O. LATE BALAKRISHNAN NAIR, DO. DO. 5. SREEJA, 24 YEARS, D/O. LATE BALAKRISHNAN NAIR, DO. DO. 6. BINESH, 23 YEARS, S/O. LATE BALAKRISHNAN NAIR, DO. DO. BY ADV. SRI.V.R.KESAVA KAIMAL SRI.N.M.MADHU RESPONDENTS: APPELLANT/DEFENDANT --------------------------------------------------------- MOORKATHU SANKARAN NAIR, 64 YEARS, S/O. GOVINDAN NAIR, RESIDING AT IRIMBILIYAM AMSOM AND DESOM IN TIRUR TALUK. (DIED) ADDITIONAL RESPONDENTS IMPLEADED: -------------------------------------------------------- 2. SAUDAMINI, W/O. MOORKATHU SANKARAN NAIR, AGED 50 YEARS, RESIDING AT IRIMBILIYAM AMSOM DESOM IN TIRUR TALUK. 3. SANDHYA, D/O. MOORKATHU SANKARAN NAIR, AGED 20 YEARS, DO. DO. ADDITIONAL RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED 25.1.2008 IN I.A. NO.1603 OF 2003 BY ADV. SRI.T.KRISHNAN UNNI THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 06/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- C.M.A.No.179 of 2002 ------------------------------------------------- Dated, this the 6th day of February, 2008 JUDGMENT The plaintiffs in O.S.No.367/1998 on the file of the Munsiff Court, Tirur are the appellants. Appeal is filed challenging an order of remand passed by the lower appellate court by which it set aside the decree and judgment passed by the trial court and remanded the suit for fresh disposal. Appellants filed a suit for recovery of a building. In the plaint it was averred that the suit building was allotted to the share of Balakrishnan Nair who was the husband of the first appellant and father of the remaining appellants as per partition deed No.799/1995. It was averred that the building was let out to the deceased first respondent for a monthly rent of Rs.300 on 11.4.1976 and he was running a tea shop. It was also averred that the appellants issued a notice to the deceased first respondent terminating the lease. In the plaint there was an alternate prayer for recovery of the building on the strength of title also. 2. Deceased first respondent filed a written statement contending that the deceased first plaintiff had no title or possession over the building. The averment that the building was let out to deceased first respondent was also denied. It was contended that he constructed a small building in the year 1976 and was running a tea shop there. It was also contended that there arose disputes between the deceased first plaintiff and deceased first respondent and first CMA No.179/2002 2 defendant purchased the building paying Rs.90/- and since the consideration is less than Rs.100/- the sale deed was not registered. The averment that the property along with the building was allotted to the share of deceased first plaintiff in the partition deed No.799/1995 was denied. It was contended that there was no landlord and tenant relationship between the appellants and deceased first respondent. So he prayed for dismissal of the suit. 3. Trial court found that plaintiffs had succeeded in establishing their title and decreed the suit. Challenging the decree and judgment of the trial court deceased first respondent filed A.S.No.29/2001. The lower appellate court took a view that the appellants failed to prove tenancy right claimed by him. It also held that there was no material to prove that appellants/plaintiffs had established their title over the property. So the lower appellate court set aside the judgment and decree passed by the trial court and remanded the matter to trial court for fresh disposal in accordance with law. Challenging that remand order this appeal is filed. 4. At the time of admitting the appeal no substantial questions of law were framed. It is argued that there is sufficient evidence in the case and hence Order XLI Rule 24 of Civil Procedure Code might have been invoked in this case. The following substantial questions of law were framed - (1) Whether in the facts and circumstances of the case the appellate court was justified in remanding the case without deciding the case, if necessary by CMA No.179/2002 3 framing additional issue? (2) Whether in the facts and circumstances of the case the appellate court was justified in setting aside the findings of facts based on evidence? The appeal was heard. Lower appellate court did not give weight to the evidence of PW1 as he was only 35 years age in the year 2000 when he was examined. Learned counsel for the appellant has argued that apart from the evidence of PW1 there was other evidence. It is argued that the admission by the deceased first respondent himself will show that the property actually belonging to the appellants and he was a tenant of the building. Much reliance was placed on Exts.C1 and C2 plan and report. There was no prayer to identify the property allotted to the plaintiffs in the partition deed. Since the title of the appellants was disputed the burden was on the appellants/plaintiffs to prove their title. I am of the considered opinion that while remanding the matter the lower appellate court ought not to have entered into any finding regarding tenancy and that question ought to have been left open to be decided by the trial court. While sustaining the order of remand I set aside the finding of the lower appellate court that the appellants failed to prove tenancy right. The trial court is directed to reconsider that issue also afresh in accordance with law. I make it clear that it is open to both sides to amend the pleadings and adduce further evidence, if so advised. In the result, Civil Miscellaneous Appeal is disposed of with the following observations. The finding of the lower appellate court that appellants failed to CMA No.179/2002 4 prove the tenancy right and they failed to establish their title over the property is set aside. Trial court is directed to re-consider the tenancy right pleaded by the appellants on its merits. Parties shall appear before the trial court on 15.3.2008. Trial court shall make every endeavour to dispose of the suit as expeditiously as possible. C.M.P.No.5094/2002 in C.M.A.No.179/2002 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks CMA No.179/2002 5 K.PADMANABHAN NAIR, J. C.M.A.No.179 of 2002 JUDGMENT 6th February, 2008.