IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 FAO.No. 204 of 2009() ---------------------------------- AS.10/2005 of SUB COURT, HOSDRUG. O.S. NO.513/1999 OF MUNSIFF'S COURT, HOSDRUG .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------- H.D.RAGHAVENDRA, S/O.DARAPPA, RESIDING NEAR LAKSHIYA WOOD INDUSTRIES, BALLA VILLAGE, HOSDURG TALUK, P.O.BALLA. BY ADV. MR.M.GOPIKRISHNAN NAMBIAR RESPONDENT(S): APPELLANT/DEFENDANT -------------------------- KULAPPURATH LAXMIKUTTY, W/O.K.K.BHASKARAN, RETIRED TEACHER, RESIDING AT BALLA VILLAGE, HOSDURG TALUK, P.O.BALLA, KASARAGOD DISTRICT. R1 BY ADV. MR.KODOTH SREEDHARAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 03/02/2010, ALONG WITH FAO. NO.205 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... F.A.O.Nos.204 & 205 OF 2009 ............................................. Dated this the 3rd day of February, 2010. J U D G M E N T F.A.O.No.204/2009 is preferred against the order of remand passed in A.S.No.10/2005 and F.A.O.No.205/2009 is filed against the order of remand passed in A.S.No.9/2005 of the Subordinate Judge's Court, Hosdurg. Both these appeals were preferred against the judgments and decree in O.S.Nos.513/1999 and 600/1999 of Munsiff Court, Hosdurg. O.S.Nos.513/1999 was a suit for injunction with respect to the plaint schedule property and O.S.No.600/1999 is another suit wherein the relief prayed for is with respect to the exclusive possession and enjoyment of item No.1 property and using item No.2 as access to item No.1. The plaintiff in O.S.No.513/1999 is an assignee of the property from the share holder in O.S.No.4/1976 of the Munsiff Court, Hosdurg. The brief reference to the facts would reveal that the predecessor of plaintiff in O.S.No.513/1999 was allotted plot No.2 in the final decree and the plaintiff in O.S.No.600/1999 was allotted Plot No.2C in the final decree. Plot 2 A is the : 2 : F.A.O.Nos.204 & 205 OF 2009 access provided to Plots 2C and 2D. The crux of the matter with respect to the suit for injunction is that though only plot 2 B is allotted to the plaintiff's predecessor in O.S.No.513/1999, at the time of delivery, excess property has been delivered and by virtue of the same, the plaintiff is in possession and therefore the plaintiff is entitled to the injunction prayed for. So really the question that is raised before the court is with respect to the excess delivery of the property. The learned subordinate judge who heard the matter felt that there is some mistake in the original final decree and, therefore, had permitted the party to amend and seek relief with respect to the rectification of mistakes etc in the suit. At the outset, it may have to be stated that when there is some mistake in the decree, if the same has to be rectified all the parties to the original litigation should be dragged into another litigation. In this case, the court is only concerned with the act of possession over the disputed property on the date of the suit. If the plaintiff is able to establish that he is in possession of the property, then he is entitled to the relief and even if possession is wrongful, the : 3 : F.A.O.Nos.204 & 205 OF 2009 remedy available for the other is to resort to some other legal methods. Therefore the scope of the suit has to be understood and it need not have to be widened and Order 41 Rule 23 need not be made use of in this way so as to travel beyond the scope of the suit. 2. Therefore after application of mind and hearing the counsel for both sides, I set aside the order of remand and direct the learned subordinate judge to hear the appeal afresh regarding the issue involved in the case namely possessory aspect. But I make it clear that if the plaintiff feels that such prayer may not be of any help, and more detailed declaratory relief or something is necessary, even at the appellate stage the courts can permit the plaintiff to withdraw the suit with liberty to file a fresh suit. But the same may be decided in an application made by the parties and after hearing them, dispose it of in accordance with law. It is true that substantial justice has to be done to the parties and at the same time the court has to realise the scope of the suit. It may be left open to the parties , if ultimately necessary, by resorting to fresh legal proceedings : 4 : F.A.O.Nos.204 & 205 OF 2009 for the reason that more comprehensive suit may have to be filed in that regard. 3. Therefore FAo's are allowed. Order of remand is set aside and the learned subordinate judge is directed to decide these appeals afresh as ordered by me in the previous paragraphs. I make it clear that I have not expressed any opinion on the merit of the case at this stage. The parties are directed to appear before the court below on 02.03.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE cl : 5 : F.A.O.Nos.204 & 205 OF 2009