IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 FAO.No. 43 of 2009() -------------------- AS.129/2002 of SUB COURT,NEYYATTINKARA OS.299/1999 of I ADDL. MUNSIFF COURT,NEYYATTINKARA .................... APPELLANTS/RESPONDENTS 1,3 TO 6/DEFENDANTS 1,3 TO 6:- 1. AMRITHAYYAN ALIAS AMRITHARAJ S/O.P.T.GEORGE , SREEVILASATHU VEEDU, PAYANTHI, POOVAR DESOM,THIRUPURAM VILLAGE. 2. SUSEELA NAGAMMA,KALLUKUTHIVILAKATHU VEEDU, VENNIYOOR DESOM,THIRUVALLAM VILLAGE. 3. SUSEELA DEVAMMA, PARUTHIVILA VEEDU DO..DO... 4. SUSEELA SANTHAMMA, THEKKARIKU VEEDU KALLUKUTHIVILAKOM, DO...DO.. 5. SUSEELA AZHAKAMMAL, VADAKKARIKUKULATHI VEEDU, POZHUTHILKONAM, VENGANNOOR DESOM KOTTUKAL VILLAGE. BY ADV. MR. L.MOHANAN MS. LIGEY ANTONY RESPONDENTS/APPELLANTS/PLAINTIFFS:- 1. JAYA THAMPI, S/O. P.T.GEORGE THREE STAR NIVAS, SREEVILASATHU VEEDU PAYANTHI, POOVAR DESOM, THIRUPURAM VILLAGE. 2. BABY KUTTY, D/O.MERCY DO..DO.. ADV. MR. GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1 & R2 MR. A.R.DILEEP FOR R1 & R2 MS. SURYA SASI FOR R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- F.A.O. No. 43 of 2009 ------------------------------------------------------------ Dated this the 24th day of July, 2009. JUDGMENT Defendants 1 and 3 to 6 in O.S. No. 299 of 1999 on the file of the First Additional Munsiff's Court, Neyyattinkara are the appellants in this appeal filed under Order 43 Rule I (u) C.P.C. They are challenging the order of remand passed by the lower appellate court. 2. The facts leading to the impugned remand order can be summarised as follows:- The suit referred to above was filed by the two respondents herein who are husband and wife seeking partition of the plaint C and D schedule properties. The 1st plaintiff and defendant Nos. 1 and 3 to 6 are the children of one P.T. George who died in the year 1960. The 2nd defendant Susheela (who died pending the first appeal) is the wife of the said P.T George. The 2nd plaintiff is the husband of the 1st plaintiff, Jaya Thampi. The plaint has F.A.O. No. 43/2009 : 2 : four schedules. The plaint A schedule is the entire property admeasuring 1 acre 17 cents and 960 sq. links. The plaint B schedule has an extent of 16 cents which is a portion of the plaint A schedule and it has been alienated to strangers. The plaint C schedule which is also a portion of the plaint A schedule, has an extent of 92 cents over which the two plaintiffs and the 1st defendant alone have rights as per Exts.B1 to B5 documents. It is conceded that the two plaintiffs have 52 cents and the 1st defendant has 40 cents over the plaint C schedule property. The plaint D schedule which is the portion of the plaint A schedule, has an extent of 9.960 cents. 3. The suit was resisted by the appellants contending inter alia that there was another suit filed by an alienee of the plaint B schedule property for fixation of the boundary and that Ext.B3 sale deed purporting to sell 25 cents had actually covered only 15 cents. F.A.O. No. 43/2009 : 3 : 4. The trial court had issued a commission. The Advocate Commissioner deputed by the trial court filed Exts.C1 report and C2 plan as per which even though Ext.B3 sale deed showed 25 cents, the actual extent available at site was only 13.37 cents. The said report and plan were objected to by the plaintiffs contending that the entire 25 cents covered by Ext.B3 are available at site. On 14.12.2001, the trial court passed a preliminary decree in the following lines. 1. The plaint D schedule property shall be divided into 3 equal shares and the first plaintiff be allotted with 1/6th of 2/3 share over the said property. 2. The second defendant shall be allotted with 1/3 share over the plaint D schedule property. 3. The first defendant and the defendants 3 to 6 shall be allotted with 1/6 share each of 2/3 share of the plaint D schedule property. The family house shall be allotted to the share of the second defendant, after valuing it. 4. The graveyard shown in Ekt.C2 plan shall be kept in common. 5. The plaint C schedule property shall be divided among the plaintiffs and the first defendant. 6. The plaintiffs and the first defendant are entitled to get allotment of 1/3 share each over Ext.B1 property. F.A.O. No. 43/2009 : 4 : 7. The second plaintiff and the first defendant shall be allotted with ½ share each over Ext.B2 property. 8. The first plaintiff and the first defendant are entitled to get 1/10 share each over Ext.B3 property, and the second plaintiff is entitled to get 8/10 shares over the said property marked by the commissioner as plot “LMNVWUL' in Ext.C2 plan. 9. The property covered by Ext.B4 shall be allotted in equal shares to the first plaintiff and the first defendant. 10.The property covered by Ext.B5 shall be allotted to the first defendant. 11.If the share of the plaintiffs as mentioned above over the plaint C schedule property comes to 52 cents on actual measurement at the final decree stage, the said extent of property, or if there is any deficiency in extent, the extent of property proportionate to their share shall be allotted to the plaintiffs along with the house constructed by them namely 'Three star' as a single plot, as far as possible. Similarly the share of the first defendant over the plaint C' schedule property, if on actual measurement comes to 40 cents or the proportionate extent of share available if there is deficiency in extent on measurement, shall be allotted to the first defendant along with his share over the plaint D schedule property as a single plot as far as possible. 12.The present possession of the properties and the buildings therein, as far as possible, to the extent of the respective shares, shall not be disturbed. 13.The defendants shall be allotted with the respective shares on payment of requisite court fee, if not already paid. 14.The costs of the suit shall come out of the estate. 15.The plaintiffs or other sharers who have paid court fee for separate allotment shall be at liberty to apply for a final decree by issuance of a commission or otherwise. Since the plaintiffs who were mainly aggrieved by the F.A.O. No. 43/2009 : 5 : identification of the plaint B schedule property by the Advocate Commissioner and the extent of the property covered by Ext.B3 as allotted by the Advocate Commissioner and taken in by clause 8 of the preliminary decree, the plaintiffs preferred an appeal before the Sub Court, Neyyattinkara as A.S. No. 129 of 2002. Pending the said appeal, the 2nd defendant who was the mother of the 1st plaintiff and defendants 1 and 3 to 6 died. Thereupon, the plaintiffs filed an application for amendment of the plaint so as to include the share of the mother also. Instead of passing a modified preliminary decree taking note of the death of the mother, the lower appellate court allowed the amendment application and set aside the preliminary decree and judgment passed by the trial court and remanded the case to the trial court after remitting Exts.C1 report and C2 plan to the same Commissioner with a direction to locate 25 cents of land covered by Ext.B3 sale deed. It is the said remand order which is assailed in this F.A.O. No. 43/2009 : 6 : appeal by defendants 1 and 3 to 6. 5. I heard both sides. The trial court after relegating the question of the actual extent of property covered under Ext.B3 and the actual extent available at site to the final decree proceedings, was not justified in couching clause 8 of the preliminary decree as above by specific reference to plot 'LMNVWUL' in Ext.C2 plan. In as much as the actual extent of the property covered by Ext.B3 sale deed was to be decided in the final decree proceedings, the lower appellate court also was not justified in setting aside the preliminary decree and judgment and remanding the case to the trial court for fresh disposal after issuing a fresh commission. The question as to the actual extent covered by Ext.B3 sale deed stood relegated to the final decree proceedings. This means that the said question will have to be decided by the final decree court notwithstanding Ext.C1 report and C2 plan. That is precisely why the trial court made the further direction that on deciding the actual F.A.O. No. 43/2009 : 7 : extent, the plaintiffs and 1st defendant would be entitled to proportionate increase or reduction as the case may be. The death of the 2nd defendant mother pending appeal did not justify an amendment of the plaint so as to include her share also. That was a matter to be adjusted by the trial court by passing a supplementary preliminary decree. 6. It is well settled that as far as possible an appellate court should avoid a remand unless a remand is absolutely essential. (Sundaresan Nair v. Dr. Krishnankutty Nair – 2007 (2) KHC 414) In a case where there has already been a trial on evidence before the court of the first instance, the appellate power of remand should not be exercised merely because the appellate court is of the view that the parties who could lead better evidence have failed to do so. (See India Army & Police Equipment v. Kanodia Brothers – 1968 KLT SN 19 (S.C), Sreenivasan v. Thilakan – 2003 (2) KLT 958 & Municipal Corporation, Hyderabad v. Sunder Sing – (2008) 8 SCC 485). F.A.O. No. 43/2009 : 8 : 7. Even the plaintiffs have no dispute regarding the share fixed by the trial court while passing the preliminary decree. The only dispute was regarding the actual extent covered by Ext.B3 sale deed and the available extent at the site. When that question was relegated to the final decree proceedings, the trial court also should not have made a reference to plot 'LMNBWULL' in Ext.C2 plan while passing the preliminary decree. The lower appellate court also should not have set aside the judgment and preliminary decree passed by the trial court for the purpose of deciding the question of extent covered by Ext.B3 sale deed which question stood relegated to the final decree proceedings. I, therefore, set aside the remand order passed by the lower appellate court. The dispute regarding the actual extent covered under Ext.B3 sale deed and the availability of the entire extent for actual division will have to be considered by the final decree court. If for the purpose of deciding the actual extent covered by Ext.B3 property, it becomes F.A.O. No. 43/2009 : 9 : necessary for the Final Decree Court to examine the question as to whether the location of the plaint B schedule property admeasuring 16 cents alienated to strangers has been correctly made, that question will also have to be decided by that court. 8. I am told that pursuant to the remand order, the matter was remitted to the very same Advocate Commissioner by the trial court on the original side. The same matter can be passed by the final decree court. 9. This appeal is accordingly disposed of setting aside the remand order passed by the lower appellate court and leaving it to the Final Decree Court to decide the question regarding the actual extent covered by Ext.B3 sale deed and the actual extent available for partition thereunder. The appeal filed before the lower appellate court shall stand dismissed. The trial court shall pass a revised preliminary decree taking note of the death of the 2nd defendant mother pending appeal and noting the resultant fluctuation in the F.A.O. No. 43/2009 : 10 : shares. Thereafter in the final decree proceedings the final decree court shall proceed to decide the question relegated to it by the trial court in the light of the observations as above. This appeal is accordingly allowed as above. No costs. Dated this the 24th day of July, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 43/2009 : 11 :