IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 FAO.No. 85 of 2004() -------------------- AS.127/2001 of SUB COURT,KATTAPPANA OS.28/2000 of MUNSIFF COURT, IDUKKI .................... APPELLANTS/RESPONDENTS 1,2 & 4/DEFENDANTS 1,2 & 4: ---------------------------------------------------------------------- 1. AIDED TEACHERS CO-OPERATIVE SOCIETY LTD. NO.K.336, KATTAPPANA P.O., KATTAPPANA VILLAGE, REPRESENTED BY ITS SECRETARY JOSEPH THOMAS. 2. P.M.JOSEPH, PRESIDENT, AIDED TEACHERS CO-OPERATIVE SOCIETY LTD NO.K.336, KATTAPPANA VILLAGE. 3. P.J.THOMAS, TEACHER, ST.MARY'S U.P. SCHOOL, MARYKULAM, AYYAPPANCOIL VILLAGE. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENTS/APPELLANT & RESPONDENTS 3 & 5/PLNTF.& DEFNTS.3 & 5 ----------------------------------------------------------------- 1. K.J.THOMAS @ BABU, S/O. JOSEPH, RESIDING AT KANAYAMPLACKAL, KATTAPPANA KARA, KATTAPPANA VILLAGE. 2. GEORGE THOMAS, TEACHER, ST.GEORGE'S HIGH SCHOOL, KATTAPPANA, KATTAPPANA VILLAGE. 3. K.J.FANCIS, TEACHER, ST.MARY'S U.P. SCHOOL, MARYKULAM P.O., AYYAPPANCOIL VILLAGE. ADV. SRI.T.I.ABDUL SALAM THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No. 85/04 ORDER ON IA No. 918/04 IN FAO No.85/04 DISMISSED 4.11.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- F.A.O. No. 85 OF 2004 --------------------- Dated this the 4th day of November, 2008 JUDGMENT This appeal is preferred against the judgment of the Subordinate Judge, Kattappana, in A.S. 127/01. The original suit O.S. 28/00 was filed before the Munsiff court, Idukki, for a permanent prohibitory injunction to restrain the defendants and their men from trespassing into the plaint schedule property and committing waste in the property. The plaint schedule property is described as 5 cents of property and its 'virivu' comprised in Sy. No.19/1 of Kattapana Village. 2. Respondents not heard. A perusal of the plaint would reveal that the definite case of the plaintiff is that he is the owner of the 5 cents of patta land and its 'virivu' and that he had purchased the property on 30.1.97 as per sale deed No.258/97 of the SRO, Kattapana. It is also contended that the plaint schedule property has well demarcated boundaries on all sides. So the sum and substance of the case of the plaintiff is that he is the owner in possession of 5 cents of property with the 'virivu' and an attempt is made by the FAO No.85/04 2 defendants to reduce the portion of the 'virivu' in his possession to their possession and therefore prays for an injunction. 3. On the other hand, the defendants would contend that the plaintiff has no right over the property which is described as 'virivu' and that it is a part and parcel of their property, which they had purchased by virtue of assignment deed and therefore the plaintiff is not entitled to the injunction prayed for. The trial court on consideration of the materials found that the plaintiff has not succeeded in proving that the 'virivu' is a part and parcel of the land claimed by him and therefore non-suited him. It is against that decision, the plaintiff has preferred an appeal before the Subordinate Judge, who by the judgment under challenge had set aside the judgment of the trial court and remanded the case back to the trial court. The following substantial question of law had been raised for consideration: (1) Has not the Lower Appellate Court erred in raising a point for consideration and arriving at a finding that the plaintiff has right of access through the portion of the property abutting the Public Road, in the absence of pleadings to that effect? (2) Has not the Lower Appellate Court erred in interpreting the legal principle laid down in the decision FAO No.85/04 3 reported in 1998 (1) KLT 701 and 1990 (2) KLT 490 in holding that the plaintiff has right of access to his property through every point in the road puramboke, especially, when it has come out in evidence that the defendants had already filed Exhibit B1 Application for assignment of land, which was pending consideration before the competent Authority? (3) Has not the Lower Appellate Court erred in appreciating the pleadings and evidence on record and in holding that the plaintiff has right of access through the road puramboke? (4) Whether an order of remand for the purpose of ascertaining the existence/happening of a subsequent event in a Suit for injunction simplicitor, when the alleged subsequent event gives rise a new and distinct cause of action, which enables the plaintiff to institute fresh suit, is legal or justifiable? (5) Has not the order of remand passed by the Lower Appellate Court is unwarranted and against the facts and circumstances, evidence on record as well as the law on point and liable to be set aside? 4. At the outset, I may like to point out that a civil litigation is to be decided on the pleadings of the parties. It is well settled principle that evidence cannot be permitted to be adduced on the subject which is not in the pleading and when there is no pleading, no civil court is expected to consider that question at all. But the learned Subordinate Judge had gone on a tangent and had discussed so many materials in this case. The learned Subordinate FAO No.85/04 4 Judge most probably by virtue of the admission of the parties, have arrived at a decision that the disputed property namely the 'virivu' is a puramboke land over which neither the plaintiff nor the defendants have any right and by virtue of the decision of this court, when there is a road and a puramboke abutting the road, a person is entitled to have access to the way through the puramboke land. Whether such a question is to be considered in a suit of this nature, is a point that is to be decided in this appeal. 5. When the plaintiff comes before the court with a contention that the property claimed by him is a part and parcel of his land and claims to be in his exclusive possession, the point to be determined is whether he has succeeded in proving that case. It is also a settled principle of law that a plaintiff cannot succeed on the weakness of a defendant's case or attempt to win the case by picking up holes in the defendant's case. What the Subordinate Judge has done is to arrive at a decision that it is a puramboke land and being a puramboke land nobody has got absolute right over the property and therefore the plaintiff is also entitled to the right and so the defendants cannot restrain the plaintiff from using that land. There is FAO No.85/04 5 no such case for the plaintiff atleast from the pleadings. To crown all these things, the learned Subordinate Judge dismissed the application for amendment which was filed on account of a pleading that there was a subsequent event whereby the defendants are constructing and blocking the entry to that place. The lower court in the judgment itself has observed that the Commissioner was able to see a kayyala even at the time of the inspection. But the Subordinate Judge would state that whether there is further construction is a matter to be noted. I am afraid the directions of the Subordinate judge is far beyond the scope of the suit and the points that arise for determination in the suit. Since the matter has to be heard by the Subordinate Judge on the materials available, I do not want to add further so as to cause prejudice to any of the parties. But I have no hesitation to hold that learned Subordinate Judge has totally travelled beyond the scope of the case to arrive at a decision which essentially is the substantial question of law that has to be entertained by this court in its jurisdiction. Therefore, the judgment by which the case is remanded is set aside and I direct the learned Subordinate Judge to hear the FAO No.85/04 6 appeal afresh in the light of the pleadings of the parties and the issues involved in the case and then dispose of the matter in accordance with law. The Registry is directed to transmit the records. The learned Subordinate Judge is directed to give notice to the counsel regarding the hearing of the case, fix the date of appearance and thereafter shall dispose of the matter in accordance with law. The appeal is disposed of accordingly. M.N.KRISHNAN, JUDGE vps FAO No.85/04 7