IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 FAO.No. 8 of 2011() ---------------------------- AS.129/2005 of ADDL. DISTRICT & SESSIONS COURT (ADHOC), KOLLAM OS.280/2002 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANTS / RESPONDENTS 1 & 2 IN AS/DEFENDANTS 1 & 2 IN OS. ------------------------------------------------------------------------------------------------------ 1. GOPALAN, AGED 63 YEARS, THARAYIL PUTHEN VEEDU, VADAKKUMTHALA KIZHAKKUM MURI, VADAKKUMTHALA VILLAGE, 2. VIJAYAMMA, AGED 53 YEARS, THARAYIL PUTHEN VEEDU, VADAKKUMTHALA KIZHAKKUM MURI, VADAKKUMTHALA VILLAGE BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) RESPONDENT(S): APPELLANTS & 3RD RESPONDENT IN AS/PLAINTIFFS AND -------------------------- 3RD DEFENDANTS IN OS. 1. SUMANANDAN,AGED 70 YEARS, THATTARAIYATHU VEEDU FROM KOLLANTE MEKKATHIL,VADAKKUMTHALA KIZHAKKUM MURI, VADAKKUMTHALA VILLAGE-690536 2. SREEDEVI,AGED 64 YEARS,THATTARAIYATHU VEEDU, FROM METTAPURATHU VEEDU, MARAYATHU CHERRI KILIKKOLLOOR VILLAGE-691004 3. HARINDRANATH, AGED 42 YEARS, HARI MANDIRATHU,POREDAM POST- 691534 CHADAYAMANGALAM. R1 BY ADVS. SRI.RAJA VIJAYARAGHAVAN, SRI.M.T.SURESHKUMAR. R2 BY ADV. SRI.V.V.RAJA THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss HARUN-UL-RASHID,J. ------------------------------- F.A.O. NO. 8 OF 2011 ------------------------------- DATED THIS THE 30TH DAY OF JUNE, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “1) When S.15 of the Easement Act requires 20 years of uninterrupted, open, peaceful user as of right of a pathway for conferring right over the same, as not the Lower Appellate Court gone wrong in holding that the right of easement by prescription over the counter claim written statement D schedule pathway has not been established by the defendant for 100 years? 2) When Ext.B3 document of the year l1955 specifically mentions about the pathway and further when Ext.X1 to X4 reports of the Tahsidar and Village Officer with sketch specifically prove the existence of the counter claim written statement D schedule pathway and when Ext.X2(a) sketch of the Village Officer along with Ext.X2 report specifically points out the location of the written statement counter claim D schedule pathway upon which specific right of easement if claimed, has not the lower appellate court gone wrong in observing that there is no proof f the pathway and that there is no evidence for the existence of the pathway and that the pathway requires fresh identification and in making such finding and remanding the case, has -2- F.A.O.NO.8/2011 not the lower appellate court acted illegally and erroneously?” 3) Has not the lower appellate court acted against established principles of and evidence and misinterpreted the documents and evidence in law thereby rendering the impugned appellate court judgment perverse? 2. Defendants 1 and 2 in O.S.No. 280/2002 on the file of the Munsiff's Court, Karunagappally are the appellants. This appeal is directed against the order of remand passed in A.S.No.129/2005 on the file of the Additional District & Sessions Judge (Adhoc), Kollam. The trial court dismissed the suit and allowed the counter claim. The trial court passed a decree declaring that the defendants have got easement right by prescription over the written statement D schedule pathway and passed a decree of mandatory injunction to remove the obstruction, which have caused in the written statement schedule pathway within one month, failing which the defendants will be at liberty to get those obstruction removed through the process of the court. -3- F.A.O.NO.8/2011 3. The case of the plaintiffs is that they are the owners of the plaint schedule property and that the defendants are the owners of the property situated on the northern side of the plaint schedule property. The suit was filed alleging that the defendants threatened the plaintiffs that they would construct a new pathway through the plaint schedule property. The prayer in the suit is to restrain the defendants by an order of permanent prohibitory injunction from proceeding with such illegal act. The defendants denied the plaint allegations and prayed for dismissal of the suit. They have also filed a counter claim. They claimed prescriptive easement right over written statement D schedule property and sought for a declaration of easement right by prescription over the said property. According to the defendants, the plaintiffs have constructed compound wall obstructing the user of the written statement D schedule pathway and therefore they further prayed for a decree of mandatory injunction to demolish and remove the compound wall constructed by the plaintiffs. The trial court after -4- F.A.O.NO.8/2011 considering the contentions of the parties and oral and documentary evidence tendered by them, concluded that the pathway is in existence in the plaint schedule property and that the plaintiffs have blocked the pathway by constructing compound wall. On the basis of the findings the court below held that the written statement D schedule pathway was running through the plaint schedule property that after obtaining an order of ad-interim injunction, the plaintiffs have obstructed the pathway. The trial court dismissed the suit and decreed the counter claim. 4. The Appellate Court, after considering the evidence on record, took the view that the plaint schedule property and the property of the respondents are not clearly identified. According to the learned Judge, without clear identification of the property and lie of the pathway, the prayer for easement cannot be sustained. For the purpose of proper identification of the property, the Appellate Court held that the matter requires re-consideration and therefore the judgment and decree of the court below are set -5- F.A.O.NO.8/2011 aside and the matter was remanded for fresh disposal after giving both sides an opportunity to adduce further evidence regarding the identify of the property and existence of easement right. 5. The order of remand is open remand and the matter was directed to be considered afresh, after considering the evidence on record and the additional evidence if any adduced by the parties. In the light of the fact that the matter was directed to be considered afresh, the observations and findings recorded by the Appellate Court regarding the existence of the pathway and other findings are likely to prejudice the parties. This Court fully agree with the view of the Appellate Court that the remand is necessary for the reason that the plaint schedule property and the property of the respondents are not clearly identified and that the proper identification of the property is necessary for proper disposal of the case. In such circumstances the order of remand passed by the Lower Appellate Court does not call for any interference. At the same time, the observations and findings of the Lower Appellate -6- F.A.O.NO.8/2011 Court will cause prejudice to the parties. Therefore, the trial court shall decide the suit afresh untrammelled by any of the observations and findings recorded in the order of remand passed by the Appellate Court. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge.