IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 FAO.No. 141 of 2010() --------------------- AS.37/2009 of PRL.SUB COURT,IRINJALAKUDA OS.291/2006 of PRL.MUNSIFF'S COURT, IRINJALAKUDA .................... APPELLANTS/RESPONDENTS/DEFENDANTS ------------------- 1. JOSE, AGED 70, S/O.THOTTIAN KOCHAPPAN, ALOOR VILLAGE, PERUKUNN DESOM, MUKUNDAPURAM TALUK. 2. THOMAS, S/O.THOTTIAN PAILAN, ALOOR VILLAGE, PERUKUNN DESOM, MUKUNDAPURAM TALUK. 3. ROSSY, W/O.THOTTIAN VARGHESE, ALOOR VILLAGE, PERUKUNN DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT/APPELLANT/PLAINTIFF --------------------- ANTONY, S/O.VALATHIPARAMBIL KUNJUVAREED, ALOOR VILLAGE, PERUKUNN DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.BHARATHAN THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------- F.A.O. NO.141 OF 2010 ------------------------------- DATED THIS THE 29TH DAY OF NOVEMBER, 2010 JUDGMENT Defendants in OS.No.291/2001 on the file of the Principal Munsiff's Court, Irinjalakuda are the appellants. The order of remand passed by the Principal Sub Court, Irinjalakuda in A.S.No.37/2009 is under challenge. 2. The respondent herein as plaintiff filed the suit for perpetual prohibitory injunction. Admittedly, the plaint A schedule property belongs to the plaintiff. It is the plaintiff's case that plaint B schedule is the way provided to plaint A schedule and other items of properties in the partition deed. The parties are near relatives. The property was partitioned in the year 1966. The plaintiff's mother and the defendants' predecessors are parties to the partition deed. It is also the plaintiff's case that B schedule is the way ear-marked for ingress and egress to plaint A schedule property and that it starts from the Panchayat road towards east and -2- FAO.No.141/2010 leads to the plaintiff's property and the property of the defendants on the east of the plaint A schedule property. 3. The defendants denied the plaint averments and contended that the way mentioned in the partition deed ends on the property of the 3rd defendant. According to them, access to plaint A schedule property is possible through the flanges in the properties lying on the south, east and north of the plaint A schedule property and that the plaintiff as well as the predecessors have been using the flanges for access to plaint A schedule property. In short, the contention is that the way mentioned in the partition deed does not reach plaint A schedule property. The defendants also filed counter claim seeking a decree of prohibitory injunction restraining the plaintiff and his men from trespassing into the defendants' property or for making a way through their properties 4. The trial court as well as the Appellate Court read the relevant provisions in the partition deed. The trial court having analysed the evidence and considered the contentions raised by -3- FAO.No.141/2010 both sides, held that the plaintiff has not succeeded in proving that the 2 kole wide way provided by Ext.A1 extends to plaint A schedule property and that the plaintiff is not entitled to the relief claimed in the plaint. The trial court also considered the counter claim on merits and found that the counter claimants are entitled to get a decree of injunction as prayed for. Accordingly, the trial court dismissed the suit and allowed the counter claim. 5. The plaintiff preferred the appeal. The Lower Appellate Court read and interpreted the provision regarding the way in Ext.A1 partition deed and found that as per the recitals in Ext.A1, B schedule pathway starts from the Panchayat road on the western side of the entire property and reached the paddy field on the east. The paddy field is known as “Mundakan Padam”. On the basis of the recitals in Ext.A1, the plaintiff contended before the Appellate Court that the terms in Ext.A1 clearly proved that the said document is in the nature of express grant. After considering the nature of the contentions of both the parties, the Appellate -4- FAO.No.141/2010 Court found that the identity of the pathway is clearly proved. Ext.A1 shows that the disputed pathway runs from west to the eastern side where the paddy field is situated. The Lower Appellate Court also discussed the evidence on the basis of the Commissioner's report and the oral evidence tendered by the parties as well. The partition deed produced as Ext.A1 is not disputed by either side. Three items, i.e. item Nos. 1, 2 and 3 of D schedule in Ext.A1 are allotted to the plaintiff's mother. It has come out in evidence that item No.3 is paddy field lying on the east of the plaint schedule property. Defendants are also having paddy fields on the eastern side of plaint A schedule property. After reading Ext.A1 partition deed, the Appellate Court found that both parties are having right to use the plaint B schedule pathway to reach Mudakan Padam from the Panchayat road. The findings entered by the Lower Appellate Court are in reversal of the findings entered by the trial court. The Appellate Court observed that on reading the provisions of the way in Ext.A1 as a whole, it can be seen that all -5- FAO.No.141/2010 the parties are entitled to use the way which starts from the Panchayat way on the western side which reaches the Mundakan Padam on the eastern side. The Appellate Court also noted the fact that the defendants have admitted in paragraph 6 of the written statement that the defendants are going to the Mundakan Padam on the eastern side using the beaten track seen by the Commissioner. The Appellate Court held that the trial court went in error in interpreting Ext.A1 partition deed. The Appellate Court also noted that there is mistake in the description of plaint A schedule property. The western boundary is shown only as C schedule parambu. There is no indication in the plaint shedule that the B schedule way is there on the western side. According to the defendants, the way ends on the northern boundary of the property of the 3rd defendant. In the circumstances, the plaintiff sought for amendment of the plaint. It is also admitted by the plaintiff that during the pendency of the appeal the way was destroyed by the defendants by making a ditch. This fact was reported by the -6- FAO.No.141/2010 Commissioner in his report dated 4/6/2009. Therefore, it has become necessary to amend the plaint seeking the relief of mandatory injunction to restore the way, which is alleged to have been blocked by the respondents as noted by the Commissioner. For all these reasons, the Lower Appellate Court found fit to remand the case for fresh consideration. Since the judgment and decree passed by the trial court in the suit are set aside, the Lower Appellate Court also set aside the decree passed by the trial court in the counter claim. 6. After hearing the parties at length, I find that the reasons stated by the Lower Appellate Court for re-consideration of the suit and the counter claim are justified in all respects. The reasons stated for remand, which I have discussed in the preceding paragraphs, would show that the Appellate Court had considered the controversy in the right perspective and ordered fresh trial. The Appellate Court also issued directions to afford opportunity to the parties to adduce additional evidence. Since the relief claimed in -7- FAO.No.141/2010 the suit and the counter claim are inter-related, the entire suit as well as the counter claim shall have to be re-tried and a decision has to be arrived at afresh. Since the Lower Appellate Court has directed the trial court to give opportunity to the plaintiff to amend the plaint and also permitted the parties to adduce additional evidence, the parties are at liberty to raise all the contentions including maintainability of the counter claim. The trial court has to consider all the issues and contentions afresh untrammelled by any of the findings and conclusions arrived at by the trial court and the Lower Appellate Court in the respective judgments. The discussion made above is only for the limited purpose of examining the legality of the remand order. Therefore, the trial court shall decide all the questions afresh, after affording opportunity to both sides. In the result, the appeal fails and accordingly dismissed. The suit shall be decided afresh by the trial court within a period of 9 months from the date of appearance of the parties. The -8- FAO.No.141/2010 Interlocutory Applications pressed pending suit shall be considered on merits. The parties shall appear before the court below on 21st December, 2010. Sd/- HARUN-UL-RASHID, Judge. kcv. True Copy P.S. to Judge