IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 FAO.No. 301 of 2008() ------------------------- (AGAINST THE JUDGMENT IN A.S.57/04 ON THE FILE OF THE SUB COURT, KATTAPPANA ARISING OUT OF THE JUDGMENT AND DECREE IN O.S.121/00 ON THE FILE OF THE MUNSIFF'S COURT PEERMADE) APPELLANT/RESPONDENT/PLAINTIFF:- -------------------------------------------------- C.NADARAJAN, S/O. CHELLAKKANNU NADAR, SRIVIDHYA HOUSE, KOLAHALAMEDU UNIT, VEDIKUSHY, VENGAMON VILLAGE, PEERMADE TALUK. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S)/APPELLANT/DEFENDANT: -------------------------------------------------- 1. M.MASAN MUTHU, S/O. MARK, NEAR K.L.D. BOARD, KOLAHALAMEDU UNIT, VEDIKUSHY KARA, VENGAMON VILLAGE, PEERMADE TALUK. 2. T.DHARMARAJ, S/O. THANKARAJ SHARAN NIVAS, NEAR K.L.D. BOARD, KOLAHALAMEDU UNIT, VEDIKUSHY KARA, VENGAMON VILLAGE, PEERMADE TALUK. ADV. SRI.A.C.DEVASIA FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 301 OF 2008 = = = = = = = = = = = = = = = Dated this the 23rd day of October, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, Kattappana in A.S.57/04. It was an appeal preferred against the judgment and decree of the Munsiff court, Peermade in O.S.121/00. The plaintiff has instituted a suit claiming ownership and possession of the property over one hectare of non-patta land in Sy.No.989 Vagamon village. According to him he had purchased the property in 1981 and he is in enjoyment of the plaint schedule property. 2. On the other hand the defendants would contend that the plaintiff does not have possession over one hectare of land and the document of purchase relied upon by the plaintiff does not cover an extent of one hectare and further the junction of Kerala Livestock Development Board is necessary to the proceedings. The trial court on an exhaustive consideration of the materials held in favour of F.A.O. 249 OF 2009 -:2:- the plaintiff which was challenged in appeal and the appellate court by its judgment held that the suit is bad for non joinder of Kerala Livestock Development Board as a party and that identity of the property is also necessary. In paragraph 17 of the judgment the appellate court observed that the plaintiff has established his possession over the said property at least prima facie. I am not going into the details in this case for the reason I find that the order of remand suffers from legal infirmity. In a suit for injunction the point that arises for consideration is whether the plaintiff was in possession of the property as claimed by him on the date of the suit or not. The persons who are not parties to the suit are not bound by a decree granted by a court. Therefore in a simple suit for injunction the finding of the appellate court that the case is bad for non joinder of necessary parties is really out of context. If the court is in a position to understand the disputed property and is able to arrive at a decision regarding the possession or non possession of the plaintiff over the said property then the result is to follow on the basis of the said findings. I am afraid that the learned Subordinate Judge has missed that point and had deviated F.A.O. 249 OF 2009 -:3:- from the scope of a suit for injunction in this matter. Therefore the order or remand is set aside and the matter is send back to the appellate court to dispose of the matter after hearing both parties on the question of possession of the plaintiff on the date of the suit. The Court is equally powerful to hold that if the said judgment is passed it will not be binding on K.L.D.C as well. Therefore the order of remand is set aside and the learned Subordinate Judge is directed to restore the case back to file and hear both the parties and then dispose of the matter in accordance with law on merits. Parties are directed to appear before the Subordinate Judge, Kattappana on 16.12.2009. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-