IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 FAO.No. 9 of 2006() ------------------- AS.145/2000 of III ADDL. DISTRICT COURT, KOLLAM OS.167/1995 of MUN-MAGI COURT, SASTHAMCOTTA .................... APPELLANT/RESPONDENT/PLAINTIFF ----------------------------- SARADAMMA SYAMALA AMMA, SANDHYALAYAM, VADAKKAN MYNAGAPPALLY MURI, (EDAVANASSERI II WARD), MYNAGAPPALLY VILLAGE, KUNNATHOOR TALUK. BY ADV. SRI.K.SUBASH CHANDRA BOSE SRI.K.J.JOMSON RESPONDENT(S): APPELLANT/DEFENTANT ---------------------------------- NEELAKANTASANAN OMANAKUTTAN, SHEEJA BHAVAN, NORTH MYNAGAPPALLY MURI, (EDAVANASSERRY II WARD), MYNAGAPPALLY VILLAGE, KOLLAM. ADV. SRI.B.KRISHNA MANI SRI.RAHUL VENUGOPAL THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 10/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * F.A.O. No. 9 of 2006 * * * * * * * * * * * * * * * * * * Dated: 10th day of July 2009 JUDGMENT The plaintiff in O.S. No. 167 of 1995 on the file of the Munsiff's Court, Sasthamcotta is the appellant in this appeal filed under XLIII Rule (1) (u) C.P.C. The said suit was one for declaration of title , recovery of possession, fixation of boundary and consequential injunction. 2. The case of the plaintiff can be summarised a sfollows:- The plaintiff is in exclusive possession and enjoyment of the plaint schedule property inherited from her mother Sarada Amma who got the same under Ext.A1 partition deed dated 27-2- 1952. The defendant is in possession of the property situated on the western side of the plaint schedule property. While so, with a view to grab a portion of the plaint schedule property, the defendant encroached into the same. Eventhough at the F.A.O. No. 9 of 2006 -:2:- intervention of mediators an amicable settlement was attempted the same fizzled out. On 10-6-1995 the defendant encroached into the plaint schedule property and destroyed the western boundary. Hence, the suit. 3. The suit was resisted by the respondent/defendant contending inter alia as follows:- This defendant is residing along with his family in 6 ½ cents of property situated on the western side of the plaint schedule property. He is in possession and enjoyment of the said property. He has no objection in fixing the boundary after measuring the same through the Taluk Surveyor. This defendant is not in possession of any property in excess of the extent mentioned in his document of title. The alleged trespass is not true. 4. By means of an additional written statement, the defendant put forward a counter claim scheduling three cents of property comprised in three different survey numbers of F.A.O. No. 9 of 2006 -:3:- Kunnathu Village and contended as follows:- If any part of the property comprised in the survey number shown by the plaintiff is found in possession of this defendant, the plaintiff has not right to evict this defendant and the rights, if any, of the plaintiff over the said portion is lost by adverse possession and limitation since this defendant has been in long open, continuous and hostile possession of the same. A decree for declaration and injunction in respect of the three cents scheduled to the additional written statement may be passed. 5. On the side of the plaintiff/appellant two witnesses were examined as P.Ws 1 and 2 and Exts.A1 to A4 were got marked. On the side of the defendant also two witnesses were examined as Dws 1 and 2 and Exts. B1 to B5 were got marked. Three Advocate Commissions were issued by the trial Court. The advocate Commissioners submitted Exts. C1, C2 and C3 mahazers and C1(a), C2(a) and C3 (a) plans with the assistance of the Taluk Surveyor. F.A.O. No. 9 of 2006 -:4:- 6. The learned Munsiff, after trial, as per judgment and decree dated 7-4-2000 decreed the suit with certain directions. It was aggrieved by the said decree that the defendant filed A.S. 145 of 2000 before the District Court, Kollam. As per the impugned judgment dated 21-12-2005, the learned Addl. District Judge has set aside the judgment and decree passed by the trial court and has has remanded the case to the trial Court for fresh disposal with a direction to obtain a fresh plan and report at the instance of the plaintiff. Hence, this appeal. 7. As insisted by the Apex court in Narayanan v. Kumaran – (2004) 4 SCC 26 the memorandum of Appeal has formulated the following substantial questions of law. i) Whether the lower appellate court is justified in remanding the case for deciding a dispute, which is beyond the pleading and prayers of the parties to the suit ? ii) Whether the lower appellate court is justified in remanding the case for conducting survey on the basis of old survey records and title deeds in a case in which the parties F.A.O. No. 9 of 2006 -:5:- have no objection against the re-survey plan ? iii) Whether it is legally permissible to conduct survey on the basis of the old survey plan without challenging the re- survey proceedings accordance with law after the re-survey plan was recognised and approved by the authorites ? iv) Whether Order II Rule 2 hits the claim of the apapellant in the light of the relinquishment of the counter claim ? v) Whether the waiver or relinquishment of the counter claim by the defendant operate as constructive resjudicata against the other claim of the defendant in the same suit ? 8. This is a case in which the trial court had deputed as many as three Advocate Commissioners all of whom had filed reports after inspecting the property with the aid of the Taluk Surveyor. That apart, there was Ext.A4 re-survey plan which had become final as early as in 1985 and in respect of which either side had no dispute whatsoever. Under these circumstances, the lower appellate court was not justified in remitting the matter to the trial court with a direction to issue a fresh commission at the F.A.O. No. 9 of 2006 -:6:- instance of the plaintiff. The lower appellate court has virtually abdicated its duty. As a final court of facts it should have disposed of the case on the strength of the evidence already adduced. 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 have adduced better evidence have failed to do so. (See India Army and Police Equipment v. Canadian Brothers – 1968 KLT (SN) 19 (SC) ). As far as possible, the appellate court should avoid a remand unless it is absolutely essential. (See Sundaresan Nair v. Dr. Krishnankutty Nair - 2007 (2) KHC 414). The questions of law formulated in the memorandum of appeal are accordingly answered in favour of the appellant. The impugned judgment is set aside and the matter is remitted to the lower appellate court for fresh disposal of A.S. 145 of 2000 on merits on the evidence already on record. The lower appellate court shall take into F.A.O. No. 9 of 2006 -:7:- consideration the fact that the suit is an old one of the year 1995 and shall make every endeavour to dispose of the same expeditiously and at any rate within eight months of receipt of a copy of this judgment. Dated, this the 11th day of July, 2009. V. RAMKUMAR, (JUDGE) ani.