IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 FAO.No. 23 of 2008() -------------------- AS.146/2007 of SUB COURT, PERUMBAVOOR OS.50/2004 of MUNSIFF COURT, KOLENCHERRRY .................... APPELLANT/IST RESPONDENT/PLAINTIFF ----------------------------------- DAVID, AGED 71 YEARS, SON OF LATE PATHROSE, THOPPIL HOUSE, KOKKAPPILLY P.O.-682 305, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SRI.THOMAS P.MAKIL SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE RESPONDENTS: APPELLANTS & RESPONDENTS NOS.2 TO 4/DEFENDANTS ----------------------------------------------------------- 1. GEORGE, AGED 44 YEARS, SON OF POULOSE, VEMPILLY MATTOM HOUSE, VARIKOLI P.O.-682 308, CHEMMANADU KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. SASI, AGED 48 YEARS, SON OF KUTTAPPAN, PLAKKIL HOUSE, KOKKAPPILLY P.O.-682 305, KOKKAPPILLY KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 3. OUSEPH, AGED 52 YEARS, SON OF PHILIPOSE, THOPPIL HOUSE, VATTAPPARA P.O.-685 619, CHATHURANGAPARA VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 4. THAMPI, AGED 44 YEARS, SON OF PHILIPOSE, THOPPIL HOUSE, VATTAPPARA P.O.-685 619, CHATHURANGAPARA VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. FAO.No. 23 of 2008() 5. RAJU, AGED 42 YEARS, SON OF PHILIPOSE, THOPPIL HOUSE, VATTAPPARA P.O.-685 619, CHATHURANGAPARA VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.T.N.ARUNKUMAR (PERUMBAVOOR) FOR R2 SRI.T.K.SAJEEV FOR R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 23 of 2008() ORDER ON I.A.NO.403/2008 IN F.A.O.NO.23/2008 DISMISSED. SD/-P.R.RAMAN, JUDGE SD/-T.R.RAMACHANDRAN NAIR, JUDGE 27/08/2008 \\TRUE COPY// P.A to Judge P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No.23 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of August, 2008. JUDGMENT Ramachandran Nair, J. The appeal arises from the judgment in A.S.No.146/2007 of the Subordinate Judge's Court, Perumbavoor. The plaintiff in the suit is the appellant herein. The suit is one seeking a decree of permanent prohibitory injunction restraining the defendants and their men from travelling through or taking vehicles through plaint A schedule property, to the property situated on the northern side of plaint A schedule property. The suit was decreed by the learned Munsiff. As per the impugned judgment, the matter was remanded back for fresh disposal after giving the appellants an opportunity to adduce fresh evidence. Defendants 4 and 5 in the suit were the appellants before the court below. 2. We have heard learned counsel for the parties. 3. Learned counsel for the appellant submitted that the reasons stated by the court below to remand the matter to the trial court for fresh disposal are not correct. It is pointed out that defendants 4 and 5 were given sufficient opportunity by the trial court to adduce evidence and they did not FAO 23/2008 -2- adduce evidence on their own in spite of that and therefore, the direction made by the court below to grant a fresh opportunity, is not warranted. It is pointed out that before the appellate court, no grounds have been raised in support of the plea raised in the arguments that the defendants did not get sufficient opportunity. Learned counsel for the respondents submitted that the direction issued granting a further opportunity to defendants 4 and 5 to adduce evidence, cannot be said to be incorrect in the facts and circumstances of the case. 4. The crucial finding is in para 9 of the judgment which reads as follows: “From the record, it appears that the defendants were not examined to prove their case that they have an easement right over the plaint schedule property. “ In that view of the matter, it was thought by the appellate court that the appellants should be given an opportunity to substantiate their case by adducing oral evidence. No finding has been rendered by the court below regarding the question whether the appellants were denied opportunity to adduce evidence. Without examining the said question, the court below concluded that the contention of the plaintiff that the defendants had sufficient opportunity to adduce their evidence, cannot be accepted. We FAO 23/2008 -3- find that the conclusion thus arrived at is not supported by any reasoning at all. Without entering a finding on that aspect, the direction now issued cannot be sustained. 5. Therefore, we allow the appeal and set aside the judgment. The judgment and decree of the trial court are restored. The court below will re-hear the appeal afresh in the light of the observations made as above. The appeal is allowed as above. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/