IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 12TH DECEMBER 2006 / 21ST AGRAHAYANA 1928 FAO.No. 313 of 2004() AS.148/2001 of PRL.SUB COURT, KOZHIKODE OS.759/1997 of PRL.M.C.II, KOZHIKODE APPELLANT/RESPONDENT/PLAINTIFF ----------------------------------------------- ARIKKAL PURAYIL ABOOBACKER, S/O. USMAN, RESIDING AT ARIKKAL PURAYIL HOUSE, P.O.MADAVOOR, KOZHIKODE. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT: APPELLANT/DEFENDANT -------------------------------- NATTIPPARA PURAYIL ABDULLA, S/O. KUNHAYAMMAD, RESIDING AT NATTIPPARA PURAYIL HOUSE, MADAVOOR AMSOM DESOM, KOZHIKODE TALUK ` BY ADV. SRI.V.GIRI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12/12/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.A.NOS.4432/2004 & 1520/2006 IN FAO.NO.313/2004 DISMISSED 12/12/2006 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// ahz/ K.T. SANKARAN, J. --------------------------------- F.A.O.NO. 313 OF 2004 --------------------------------- Dated this the 12th day of December,2006 JUDGMENT The plaintiff in O.S.No.759 of 1997, on the file of the Court of the Principal Munsiff of Kozhikode-II, challenges the order of remand in A.S.No.148 of 2001, Sub Court, Kozhikode. The suit was filed by the appellant for a declaration and consequential injunction. The trial court decreed the suit. On appeal by the defendant, the Appellate Court set aside the judgment of the trial court and remanded the suit for fresh disposal after affording an opportunity to the parties to produce documents and to adduce evidence. 2. Since there is another suit filed by the present defendant as O.S.No.477 of 1996 before the Munsiff's Court, Kozhikode, I am referring to the parties by their names in this judgment. Aboobacker, the plaintiff in O.S.No.759 of 1997, contended in the suit that the plaint A schedule property was purchased F.A.O. NO. 313 OF 2004 :: 2 :: by him as per Document No.1962/1980 and that he is in exclusive possession and enjoyment of the property. There is a pit dug by him in that property for taking water. A motor was installed in that pit for drawing water. Plaint B schedule property belongs to the defendant Abdulla. There is a well in the plaint B schedule property. Abdulla is taking water from that well and he has no right over the pit dug by the plaintiff Aboobacker. The suit was filed when the defendant Abdulla did not permit the plaintiff Aboobacker to construct a parapet wall and revetment to the pit. 3. The defendant Abdulla contended that there is a pucca well in the plaint A schedule property and it is not a pit as alleged by the plaintiff. The well belongs to the defendant and not to the plaintiff. The defendant is taking water from the well. The plaintiff blocked the way leading to the well situated in the plaint A schedule property. A counter claim was put forward contending that the plaintiff Aboobacker trespassed upon the property and obtained possession of F.A.O. NO. 313 OF 2004 :: 3 :: the well. In the counter claim a mandatory injunction directing the plaintiff Aboobacker to remove the motor was claimed. A prayer for recovery of possession of the well was also made in the counter claim. 4. The trial court held that there is a pucca well in the property of Aboobacker and it is not a pit as contended by him. A contention was raised by the defendant Abdulla that the well in question was not included in the title deed of the assignor of Aboobacker and that the well was specifically excluded from the title deed of the assignor. But no documents were produced by Abdulla before the trial court to substantiate this contention except photocopy of the Document No.2125/1972. The trial court did not rely on the photocopy of the document. It was held by the trial court that mere absence of mention of a well in the title deed of the plaintiff would not lead to the conclusion that the plaintiff did not get title to the well. It was also held by the trial court that in the absence of any evidence adduced by the defendant, the case of the plaintiff is to be accepted. At the same F.A.O. NO. 313 OF 2004 :: 4 :: time, the trial court held that it was not in a position to find whether the predecessor in interest of the plaintiff did get or did not get right over the well situated in the plaint A schedule property since the necessary documents are not available before Court. 5. The Appellate Court remanded the case to the trial court only for the reason that the defendant Abdulla could not produce originals of the documents before the trial court since he had already produced those documents in O.S.No.477 of 1996 filed by him. The Appellate Court held that those documents are relevant pieces of evidence and that for a full and effective adjudication of the dispute involved in the case, it is necessary to peruse those documents. An opportunity was afforded to both parties to produce the documents and also to adduce evidence as they wish. 6. The substantial question of law arising for consideration in this appeal is whether the Appellate Court was justified in setting aside the judgment of the trial court and in remanding the case to the trial F.A.O. NO. 313 OF 2004 :: 5 :: court only for the reason that certified copy of the documents were not produced before the trial court and that only photocopies were produced. 7. It is relevant to note here that O.S.No.477 of 1996 was filed by Abdulla before the same Munsiff's Court against Aboobacker for a prohibitory injunction. The subject matter involved in O.S.No.477 of 1996 is the same subject matter as that is involved in O.S.No.759 of 1997. It would appear that the pendency of O.S.No.477 of 1996 was not brought to the notice of the trial court and the pendency of O.S.No.759 of 1997 was also not brought to the notice of the trial court when O.S.No.477 of 1996 was taken up for trial. The result is that O.S.No.477 of 1996, filed by Abdulla, was dismissed by the judgment dated 28.9.1999 holding that Abdulla has no right over the well and that he cannot claim the reliefs prayed for by him in O.S.No.477 of 1996. A certified copy of the judgment in O.S.No.477 of 1996 was produced and marked as Ext.A4 in O.S.No.759 of 1997, but there is no discussion about that in the judgment of the trial court in O.S.No.759 F.A.O. NO. 313 OF 2004 :: 6 :: of 1997. The Appellate Court has also not considered the relevance of the judgment in O.S.No.477 of 1996. 8. The result is that the full facts are not brought to the notice of the Court and all the relevant documents are not produced before Court. A full, final and effective adjudication was made impossible by the lack of interest shown by both parties. Normally, in such a case a remand of the case to the trial court would be ideal. But the remand in the present case is made only for the reason that the defendant could not produce certified copy or registration copy of certain documents. That is not a ground for remand. Why the defendant could not produce the originals of the documents before the trial court is not explained. The fact that some of the documents are produced in another suit is not a ground for remand, particularly when that suit had already been decided before the disposal of the present suit. There was no impediment for the defendant Abdulla in producing those documents before the trial court since O.S.No.477 of 1996 was disposed of on 28.9.1999 and the present suit, namely, F.A.O. NO. 313 OF 2004 :: 7 :: O.S.No.759 of 1997 was taken up for trial only in November, 2000. Therefore, I am not inclined to accept the reasons stated by the Appellate Court to remand the case to the trial court. 9. At the same time, the fact remains that the two suits were being prosecuted by the parties in the same Court. Though Ext.A4 judgment in O.S.No.477 of 1996 was produced by the plaintiff Aboobacker, there is no discussion of the same in the trial court judgment. The pleadings of the parties also do not refer to the decision in O.S.No.477 of 1996. Instead of remanding the matter to the trial court, the Appellate Court itself could allow both parties to produce documents to support their contentions in the peculiar facts and circumstances of the case. If any evidence is necessary touching upon those documents and the contentions in support of the same, the Appellate Court could very well allow the parties to adduce evidence. For the aforesaid reasons, I am inclined to set aside the judgment of the Appellate Court. The F.A.O. NO. 313 OF 2004 :: 8 :: Appellate Court shall consider the appeal afresh. Sufficient opportunity shall be provided to both parties to produce documents. Documents shall be produced by the parties within two months from the date fixed for appearance before the Appellate Court. Both parties shall be at liberty to amend their pleadings. If it is found that oral evidence is also required on the basis of the documentary evidence, the parties are free to adduce such evidence. The Appellate Court shall dispose of the appeal within a period of six months. Parties shall appear before the lower Appellate Court on 15.1.2007. Send back the records to the Appellate Court. (K.T.SANKARAN) Judge ahz/