IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 FAO.No. 175 of 2008 ---------------------------- AGAINST THE ORDER DATED 07/03/2008 IN IA NO.313/08 IN AS.NO.55/2006 OF SUB COURT, QUILANDY. OS.7/2004 OF MUNSIFF - MAGISTRATE COURT, PERAMBARA. .................... APPELLANTS/RESPONDENTS 1 & 2 IN A.S. 55/2006 SUB COURT,KOYILANDY/ DEFENDANTS 1 & 2 IN O.S. 7/2004 - MUNSIFF COURT PERAMBRA: --------------------------------------------------------------------------------------------------------------- 1. VADAKKEL THIRUMANGALATH NARAYANAN NAMBIAR, S/O.KALLIANI AMMA, AGED 57 YEARS, AGRICULTURIST, RESIDING AT AYYAPPANCHALIL, ERAVATTOOR AMSOM, DESOM, POST PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. VADAKKEL THIRUMANGALATH SAROJINI AMMA, D/O.KALLIANI AMMA, AGED 56 YEARS, HOUSE WIFE, RESIDING AT PARACHALIL, CHERUVANNUR AMSOM, DESOM, POST PERAMBRA, KOYILANDY TALUK, KOZHIKODE., KERALA STATE. BY ADV. SRI.B.KRISHNAN. RESPONDENTS/ APPELLANTS 1 & 2 AND 3RD RESPONDENT IN A.S. 55/06 - SUB COURT KOYILANDY/ PLAINTIFFS AND 3RD DEFENDANT IN O.S. 7/2004 - MUNSIFF COURT, PERAMBRA: ---------------------------------------------------------------------------------------------------------------------- 1. VADAKKEL THIRUMANGALATH VANAJA AMMA, D/O.KALLIANI AMMA 50 YEARS, HOUSE WIFE, RESIDING AT PALANCHERI, KOORACHUNDU VILLAGE, ATHIYODI DESOM AND POST, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. VADAKKEL THIRUMANGALATH VALSALA AMMA, D/O KALLIANI AMMA, AGED 46 YEARS, HOUSE WIFE, RESIDING AT “ARADHANA”, MENHANNIAM AMSOM, DESOM, POST PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. F.A.O. NO. 175/2008: 3. VADAKKEL THIRUMANGALAM SARADA AMMA, D/O.KALLIANI AMMA, AGED 53 YEARS, HOUSE WIFE, RESIDING AT AYYAPPANCHALIL, 'SREEJA NIVAS', ERAVATTOOR AMSOM DESOM, POST PERAMBRA, KOYILANDY TALUK, KOZHIKODE DISTRICT, KERALA STATE. R1 & R2 BY ADV. SRI.K.P.SUDHEER, ADV. SRI.V.C.MADHAVANKUTTY. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. NO. 175/2008: ORDER ON I.A. NO. 2889/2008 IN F.A.O. NO. 175/2008 DISMISSED 13/11/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.S. TO JUDGE. prv. M.N.KRISHNAN, J ===================== FAO No.175 OF 2008 ===================== Dated this the 13th day of November 2008 JUDGMENT This appeal is preferred against the judgment of the Sub Court, Koyilandy in A.S.No.55 of 2006. The said appeal was preferred against the judgment and decree of the Munsiff-Magistrate Court, Perambra in O.S.No.7 of 2004. 2. The suit was one for injunction simplicitor and the trial court on a consideration of the materials found that the plaintiffs have not succeeded in proving possession over the disputed property and therefore dismissed the suit. It is against that decision the appeal was filed. The substantial questions of law formulated in the appeal memorandum are as follows: (1)Whether the Lower Appellate Court was justified in remitting the case to the Trial Court without finding that the judgment of the Trial Court is erroneous in the context of the judgment reported in 1988(2) KLT 957. (2)Whether the Lower Appellate Court should have heard the appeal along with the petition for leave to amend in the context of the judgment reported in 1990(1) KLT 716. (3)Whether the Lower Appellate Court was justified in remitting the case to the Trial Court for considering relief of mandatory injunction when it will have no effect on the plaintiffs' case whose possession is found against by the Trial Court. FAO 175/2008 -:2:- Points 1 to 3. 3.During the pendency of the appeal, I.A.No.313 of 2008 was filed for amendment of the plaint whereby plaintiffs wanted to incorporate a prayer of mandatory injunction on the ground that defendants had constructed a stone wall in the plaint schedule property and though the same was brought to the notice of the court, the petitioners did not take any step for amending the plaint and so at that stage they wanted to move an application for amendment by incorporating a prayer for mandatory injunction. The long and short of the whole matter depends upon the finding on the question of possession of the property by the plaintiffs. If the plaintiffs are able to establish that they were in possession of the property on the date of institution of the suit and if there has been a subsequent encroachment by construction of a wall, the hands of the court are wide enough to give a direction to put back the plaintiffs into their original possession by issuance of a mandatory injunction even with or without prayer. But the crucial question to be adjudicated in the matter is regarding possession of the plaintiffs over the plaint schedule property as contended by them on the date of institution of the suit. The other is only a subsequent development and the moulding of such a relief depends only when it is established that the plaintiffs are able to get the main relief. So FAO 175/2008 -:3:- the appropriate method for deciding the issue was to consider the amendment application along with the appeal and if the court was convinced about the plaintiffs' possession then certainly it should have entertained the amendment application then passed an order and if additional particulars are necessary to remand the matter for adjudication. But, unfortunately in this case without considering the pivotal issue the court had put the cart before the horse and proceeded to decide the matter that it requires a remand since the amendment application is allowed. Such procedure done by the court below is erroneous which requires correction. The proper remedy for the plaintiffs is to address the case in appeal and if the court finds that the judgment of the trial court requires reversal then necessarily subsequent prayer also has to be entertained. Therefore, the judgment of the Sub Judge, Quilandy is set aside and the learned Sub Judge is directed to consider the appeal afresh and he must also restore the application for amendment, hear them jointly, consider the question of possession and along with it also the prayer for amendment and pass appropriate orders or directions as the case may be. Appeal is disposed of accordingly. If the records are already transmitted to the Munsiff's Court let it be recalled and the matter be disposed of. The Sub Judge shall try to dispose of FAO 175/2008 -:4:- the matter as expeditiously as possible, at any rate, within 3 months from the date of first appearance of the parties which is fixed as 18.12.2008. FAO is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-