IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 FAO.No. 281 of 2008() --------------------- AS.23/2002 of SUB COURT,NEYYATTINKARA OS.935/1999 of ADDL.MUNSIFF COURT,NEYYATTINKARA .................... APPELLANTS (S): RESPONDENTS/PLAINTIFFS: -------------------------------------------------------- 1. S.MOHANAN, AGED 40 YEARS, MUZHAGIL VEEDU, CHEMBOOR DESOM, KEEZHAROOR VILLAGE. 2. VIJI, AGED 30 YEARS, W/O.S.MOHANAN, MUZHAGIL VEEDU, CHEMBOOR DESOM, KEEZHAROOR VILLAGE 3. SUCI, AGED 31 YEARS, W/O.JAYACHANDRAN, MUZHAGIL VEEDU, CHEMBOOR DESOM, KEEZHAROOR VILLAGE BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): APPELLANTS/DEFENDANTS: -------------------------------------------------- 1. K.OMANA, AJITH BHAVAN, CHEMBOOR, KEEZHAROOR VILLAGE. 2. AJITHA, D/O.(LATE)THANKAPPAN, AJITH BHAVAN, CHEMBOOR, KEEZHAROOR VILLAGE. 3. ANITHA, D/O.(LATE)THANKAPPAN, AJITH BHAVAN, CHEMBOOR, KEEZHAROOR VILLAGE. 4. ANILA, D/O.(LATE)THANKAPPAN, AJITH BHAVAN, CHEMBOOR, KEEZHAROOR VILLAGE. 5. ABITHA, D/O.(LATE) THANKAPPAN, AJITH BHAVAN, CHAMBOOR, KEEZHAROOR VILLAGE. 6. AJITH KUMAR, S/O.(LATE)THANKAPPAN, AJITH BHAVAN, CHAMBOOR, KEEZHAROOR VILLAGE. ADV. SRI.G.SUDHEER FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== F.A.O. NO. 281 OF 2008 =========================== Dated this the 18th day of February,2009 JUDGMENT Defendants in O.S.935/1999 on the file of First Additional Munsiff, Neyyattinkkara are the appellants. Plaintiffs are the respondents. Respondents instituted the suit seeking a decree for mandatory injunction to demolish a portion of the building constructed by defendants in their property contending that that building was constructed in violation of the Building Rules. Learned Munsiff as per judgment dated 15.11.2001 dismissed the suit accepting the case of the appellants proved by the evidence of PW3, Secretary of Panchayat that Building Rules are not made applicable to the Panchayat. The judgment was challenged before Sub Court, Neyyattinkara in A.S.23/2002. Learned Sub Judge as per the impugned judgment FAO 281/2008 2 remanded the suit to the trial court for fresh disposal with a direction to grant opportunity to both sides to adduce evidence including taking out a Commission. The order of remand is challenged in this appeal. 2. Learned counsel appearing for appellants and respondents were heard. 3. On going through the impugned judgment it is absolutely clear that the appeal was not disposed on merit. The suit was for a mandatory injunction alleging that the construction made by the defendants is in violation of Kerala Building Rules. The trial court accepting the evidence of PW3 found that Kerala Building Rules are not made applicable to Aryancode Panchayat. Ext.A7 letter issued by the Panchayat also showed that the Building Rules are not made applicable. It is on that basis the suit was dismissed. Learned Sub Judge in the appeal did not find that the Kerala Building Rules are made applicable to the Panchayat FAO 281/2008 3 and therefore the findings of the learned Munsiff is not correct. On the other hand, what was found by the learned Sub Judge was that “just because the plaintiffs had pleaded that defendants had violated the Building Rules which is not adopted by the Panchayat the defendants had no authority to construct the building against the provisions of the Kerala Panchayat Act”. It is not mentioned which is the said provision of the Panchayat Act which disentitle the defendants from constructing the building. Therefore the order of remand is unsustainable. Learned counsel appearing for appellants pointed out that though there is a direction to appoint a Commission in I.A.2274/2001 filed earlier later it was dismissed for non remittance of the Commission batta, and first plaintiff when examined as PW1 admitted that plaintiffs and defendants are in possession of their respective properties and in reexamination he deposed that there is already a report submitted FAO 281/2008 4 by the Commissioner fixing the properties and therefore a remand to take a commission to identify the property is illegal. There is force in the submission. Unfortunately these aspects were not considered by the learned Sub Judge while remanding the suit. Appeal is allowed. Judgment in A.S.23/2002 is set aside. The Sub Judge, Neyyattinkara is directed to dispose A.S.23/2002 on merits expeditiously. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006