IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 FAO.No. 51 of 2006() -------------------- AS.262/2003 of DISTRICT COURT, KOTTAYAM OS.943/2000 of PRL.M.C., KOTTAYAM .................... APPELLANTS/RESPONDENTS/DEFENDANTS 1. MARIAMMA JOHN, D/O.JOHN, KOVUKUNNEL HOUSE, SOUTH PAMPADY P.O., PAMPADY KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 2. JOB JOSEPH @ JOBY @ MONY, S/O.K.V.JOSEPH, KOVUKUNNEL HOUSE, SOUTH PAMPADY P.O., PAMPADY KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENT(S): APPELLANTS/PLAINTIFFS 1. ALPHONSE AUGUSTINE, S/O.AUGUSTHY, AZHAMCHIRAKALATHIL HOUSE, SOUTH PAMPADY P.O., PAMPADY KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 2. JOSEPHKUNJU AUGUSTHY, S/O.AUGUSTHY, AZHAMCHIRAKALATHIL HOUSE, SOUTH PAMPADY P.O., PAMPADY KARA, PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = F.A.O.No.51 of 2006 = = = = = = = = = = = = = = Dated this the 17 th day of August, 2009 JUDGMENT The defendants in O.S.No.943 of 2000 on the file of the Principal Munsiff's Court, Kottayam are appellants in this appeal filed under Order XLIII Rule 1(u) C.P.C. They are challenging the remand order dated 18.5.2005 passed by the lower appellate court in A.S.No.262 of 2003. 2. Eventhough no substantial question of law has been formulated in the memorandum of appeal, the learned counsel appearing for the appellants/defendants submits that the following substantial question of law arises for consideration in this appeal:- Whether the lower appellate court was justified in exercising the power of remand under Order XLI Rule 23 C.P.C in the light of the decision in Sundaresan Nair and other v. Dr.S.Krishnan Kutty Nair and another (2007(2) KHC) and F.A.O.No.51 of 2006 2 Municipal Corporation, Hyderabad v. Sunder Singh) (2008(8) SCC 485) to the effect that the appellate court should, as far as possible, avoid the remand of the case to the trial court? The respondents/plaintiffs in the suit have remained ex parte in this appeal. 3. The suit O.S.No.943 of 2000 referred to above was one for a permanent prohibitory injunction restraining the defendants from committing any act of waste in the plaint schedule Item No.4 described as a road and from reducing its width. The two plaintiffs are brothers and the two defendants are an aged woman and her nephew. Plaint schedule Item No.1 admeasuring 63.10 Ares is the property belonging to the 1st plaintiff. Plaint Schedule Item No.2 admeasuring 53.50 Ares is the property belonging to the 2nd plaintiff. Plaint Schedule Item No.3 is the property belonging to the 1st defendant. Plaint Schedule Item No.4 is F.A.O.No.51 of 2006 3 the property described as the road in respect of which relief was claimed. The plaintiffs based their claim to use the plaint schedule item No.4 strip of land on dedication. 4. The suit was resisted by the appellants contending inter alia, that the plaint schedule Item No.4 was not a road and there was no dedication for the same for the purpose of user of the road at any point of time. 5. The trial court framed the following issues for trial:- 1. Whether there is a road as described in plaint item No.4? 2.Whether the plaintiffs have easementary right over plaint item No.4? 3.Whether the injunction prayed for allowable? 4. Reliefs and costs. 6. The trial court deputed an Advocate Commissioner who filed Ext.C1 series and C2 series reports and sketches. F.A.O.No.51 of 2006 4 Plaint Schedule Item No.4 is described as a road running east-west starting from the Vazhoor-Changanacherry road and ending in the property of the 2nd plaintiff which is the plaint schedule item No.2 after cutting across the property of the defendants and the property of the 1st plaintiff. 7. On the side of the plaintiff 5 witnesses were examined as PWs 1 to 5 and Exhibits A1 to A6 were got marked. On the side of the defendants two witnesses were examined as DW1 and DW2 and Exhibits B1 to B5 were got marked. 8. The learned Munsiff, after trial, as per judgment and decree dated 7.10.2003 dismissed the suit holding, inter alia, that eventhough the plaint proceeded on the basis that the right claimed was one of dedication, from the nature of the evidence adduced, it can be spelt out that the case subsequently made out was one for easement by F.A.O.No.51 of 2006 5 prescription and that the plaintiffs had not succeeded in proving that they had exercised any right of user over the strip of land for more than the statutory period so as to prove an easement by prescription. Aggrieved by the judgment and decree passed by the trial court, the plaintiff filed an appeal before the District Court, Kottayam as A.S.No.262 of 2003. The learned District Judge as per judgment dated 18.5.2005 has set aside the judgment and decree passed by the trial court and has remanded the case to the trial court for fresh disposal after allowing I.A.No.170 of 2005 filed by the plaintiffs before the lower appellate court for amending the plaint, so as to incorporate a specific plea regarding easement by prescription. It is the said remand order which is assailed in this appeal by the defendants. 9. The learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- F.A.O.No.51 of 2006 6 The suit was laid on the basis that the right of the plaintiffs to use the plaint Schedule Item No.4 road by way of dedication. There was no plea regarding easement by prescription. Still the trial court framed issue No.2 in such a way as to include an easementary right. Evidence was also let in by the plaintiffs in support of their subsequent claim of easement by prescription. Both sides knew that evidence was let in by the plaintiffs to make out a case of easement by prescription although without any plea in the plaint. When the parties went to trial with the full knowledge about the case involved, the plaintiffs were not entitled to turn around and take a different contention upon dismissal of the claim. The lower appellate court was not justified in allowing the amendment of the plaint and remanding the case to the trial court when the plaintiffs had ample opportunity to put F.A.O.No.51 of 2006 7 forward their contention during trial. The order of remand passed by the lower appellate court is not in conformity with Order 41 Rule 23 and the decisions referred to above. 10. I am afraid that I cannot agree with the above submissions. It is true that the suit was laid on the basis of dedication alone. There was no plea in the plaint that the plaintiffs have perfected a right of easement by way of prescription through the plaint Schedule Item No.4 for the beneficial enjoyment of plaint Schedule Item Nos.1 and 2. In the absence of a plea of easement by prescription, no evidence could have been let in to substantiate a contention belatedly raised during the trial that the plaintiffs have perfected right over plaint Schedule Item No.4 by way of prescriptive easement. Prescriptive easement is a precarious and special right claimed by a person over the property of another and a person making such a claim has F.A.O.No.51 of 2006 8 to specifically plead the ingredients of such easement. (See Ibrahimkutty v.Abdul Rahumankunju (1992(2) KLT 775). No doubt, the trial court framed issue No.2 as extracted earlier. But that was not an issue with regard to the easement by prescription. An issue as to whether the plaintiffs have easementary right over the plaint schedule Item No.4 is so vague that no easement by prescription can be spelt out over such an issue. Moreover, the trial court had no authority to frame an issue which was not covered by the pleadings. At the stage of trial, the evidence which was being let in by the plaintiffs was to make out an easement by prescription which was never pleaded nor an issue cast by the court. It is well settled that no amount of evidence can be looked into to find out a case which is never pleaded. (See Ram Sarup Gupta (dead) by L.Rs v. Vishnu Narain Inter Collegiate and others (AIR 1987 SC 1242). Therefore, the plaintiffs were really taken by F.A.O.No.51 of 2006 9 surprise by the trial court which held that the plaintiffs have failed to establish an easement by prescription when the fact remains that such a case was never pleaded nor an issue framed. Under these circumstances, the lower appellate court was fully justified in allowing I.A.No.170 of 2005 permitting the plaintiffs to amend the plaint by specifically incorporating a plea of easement by prescription. It is only if such a case is pleaded that the court can frame an issue to permit the parties to adduce evidence in support of or against the said plea. This was a fit case where after allowing I.A.No.170/2005, the lower appellate court was justified in remanding the case for trial and for fresh disposal. Merely because the plaint is allowed to be amended it does not mean that the amended plaint claim is established. The appellants will have an opportunity to file additional written statement and will have the further F.A.O.No.51 of 2006 10 opportunity to oppose the further evidence, if any, let in by the plaintiffs or to adduce rebuttal evidence and get the plaintiffs non-suited. Therefore, this appeal is dismissed, without prejudice to the right of the appellants to raise all the defences available to them before the trial court. There shall be no order as to costs. Dated this the 17th day of August, 2009. V. RAMKUMAR, JUDGE sj