IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 FAO.No. 129 of 2009() --------------------- AS.38/2007 of SUB COURT,KOCHI OS.122/1999 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANTS/RESPONDENTS/DEFENDANTS:- -------------------------------------------------- 1. SAVITHRI AGED 60, W/O. ARAVINDAKSHAN RETD. POST MISTRESS, COCHIN UNIVERSITY.P.O., SOUTH KALAMSSERY, RESIDING AT 119 M, CHIRATTAPURAKKAL CHANGAMPUZHA NAGAR, KALAMASSERY, KOCHI-35,NOW RESIDING AT 119 M, CHIRATTAPURAKKAL NIRAVTHU HOUSE KK LANE, EAST TOLL, EDAPPALLY, KOCHI-25. 2. C.S.SAJEEV KUMAR, AGED 18 YEARS, S/LO. LATE ARAVINDAKSHAN AND SMT. SAVITHIRI, COCHIN UNIVERSITY.P.O., SOUTH KALAMASSERY, NOW RESIDING AT 119 M, CHIRATTAPURAKKAL NIRAVTHU HOUSE KK LANE, EAST TOLL, EDAPPALLY, KOCHI-25. BY ADV. MR. K.V.JAYACHANDRAN MR. RAJU V.MATHEW RESPONDENT/APPELLANT/PLAINTIFF:- ------------------------------------------ VARGHESE AGED 34 YEARS, S/O. KANAKKASSERY MATHEW, REP. HIS MOTHER AND POWER HOLDER, MRS. GRACY MATHAI RESIDING AT KANAKKASSERY HOUSE, EDAVANAKKAD P.O. THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ------------------------------------------------------------- F.A.O. No. 129 of 2009 ------------------------------------------------------------ Dated this the 11th day of August, 2009. JUDGMENT Defendants 1 and 3 in O.S. No. 122 of 1999 on the file of the Additional Munsiff's Court, Kochi are the appellants in this appeal. The said suit instituted by the respondent herein was one for a permanent prohibitory injunction against trespass and for a mandatory injunction to surrender vacant possession of the plaint B schedule property. The appellants resisted the suit by filing a written statement. 2. On the side of the plaintiff, three witnesses were examined as PWs 1 to 3 of whom PW2 is the Advocate Commissioner and Exts. A1 to A10 were got marked. On the side of the defendants, two witnesses were examined as DWs 1 & 2 of whom DW1 is the first defendant and Exts. B1 to B7 were got marked. The Advocate Commissioner who was deputed by the trial court submitted Exts.C1 series, C2 F.A.O. No. 129/2009 : 2 : and C3 series of report and sketch. 3. The learned Munsiff, after trial, as per judgment and decree dated 07.12.2006 dismissed the suit holding that the apprehension of trespass by the plaintiff was not well founded and that the plaint does not include a prayer for recovery of possession on the strength of title and that the suit was not coming under the purview of Section 6 of the Specific Relief Act. On appeal by the plaintiff as A.S. No. 38 of 2007 before the Sub Court, Kochi, the learned Subordinate Judge 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 proper identification of the properties on the basis of re-survey records and after consequential amendment, if any, of the pleadings, if so advised. It is the said remand order which is assailed in this appeal. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- F.A.O. No. 129/2009 : 3 : A)When the suit is not disposed on a preliminary point and the respondent did not advance any argument challenging the finding of the trial court whether the lower appellate court properly exercised the jurisdiction vested in it? B) When the first appellate court found “hence it is evident that none of the aforesaid findings for rejection of the reliefs by the court below are now under challenge” and when the respondent never advanced any argument against the findings of the trial court except the prayer for an opportunity for taking steps for measurement and demarcation of the properties on the basis of resurvey records and for amendment of the plaint for recovery of possession whether the lower appellate court is justified in setting aside the decree and judgment of the trial court and remanding the case? C) When the suit is filed within 6 months under the provisions of Section 6 of the Specific Relief Act, the decree and judgment of the trial was not appealable. Therefore whether the lower appellate court is justified in entertaining the appeal and whether the first appeal is maintainable? D)Whether the lower appellate court properly interpret Ext.A3 in finding that Ext.A3 no way recited that part of aforesaid pathway is part and parcel of said assigned land? 5. I heard the learned counsel for the appellants who contended that since the suit was one filed under Section 6 of the Specific Relief Act as observed by both the courts below, the F.A.O. No. 129/2009 : 4 : remedy of the plaintiff was not an appeal before the lower appellate court and that there was no necessity for identification of the suit properties with reference to the re-survey plan. 6. I cannot agree with the above submission that the suit was one filed under Section 6 of the Specific Relief Act. There is no whisper in the plaint that the suit is filed under Section 6 of the Specific Relief Act. It was actually a contention raised by the appellants and inferred to be so by the lower appellate court. The trial court has specifically held that the suit is not one filed under Section 6 of the Specific Relief Act. The lower appellate court, after a careful re-appraisal of the oral and documentary evidence, came to the conclusion that this was a case where the plaintiff was non-suited without a proper identification of the property and the remand was only to enable the plaintiff to get the properties identified with reference to re-survey records. The lower appellate court has also observed that the trial court shall proceed to dispose of the suit untramelled by the observations in the impugned judgment. I do not think that the lower appellate court has exercised the power of remand illegally. That court F.A.O. No. 129/2009 : 5 : having found that there was no sufficient material to decide the question, was fully justified in making the remit to the trial court. It is an open remand and the appellants are entitled to raise all the defences available to them before the trial court. I, therefore, do not find any question of law, much less, any substantial question of law justifying interference. This appeal is accordingly dismissed in limine. Dated this the 11th day of August, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 129/2009 : 6 :