IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 7TH JULY 2009 / 16TH ASHADHA 1931 FAO.No. 9 of 2004() ------------------- AS.55/2001 of SUB COURT,KATTAPPANA OS.91/1999 of MUNSIFF COURT, IDUKKI .................... APPELLANTS/RESPONDENTS/DEFENDANTS:- ----------------------------------------------------- 1. JOSEPH AGED 70, S/O. THOMAS, MUNDIYANKAL HOUSE, KARIMBAN KARA, UPPUTHODE VILLAGE, UDUMBANCHOLA TALUK. 2. LIBISTON AGED 35 YEARS, MUNDIYAMKAL HOUSE, KARIMBAN KARA, UPPUTHODE VILLAGE, UDUMBANCHOLA TALUK. 3. MATHEW, AGED 47 YEARS, MUNDIYAMKAL HOUSE KARIMBAN KARA, UPPUTHODE VILLAGE, UDUMBANCHOLA TALUK. BY ADV. MR. N.L.KRISHNAMOORTHY MR. K.LAKSHMINARAYANAN RESPONDENT/APPELLANT/PLAINTIFF:- -------------------------------------------- THOMAS S/O. MATHEW KUZHIKUTHIYANI HOUSE, KARIMBAN KARA, UPPUTHODU VILLAGE, UDUMBANCHOLA TALUK. ADV. MR. S.M.PRASANTH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: F.A.O. NO. 9/2004 : 2 : ORDER ON I.A. NO. 95/2004 IN F.A.O. NO. 9/2004 DISMISSED 07.07.2009 sd/- V. RAMKUMAR, JUDGE. V. RAMKUMAR , J. ========================== F.A.O. No. 9 of 2004 ========================== Dated this the 7th day of July, 2009. JUDGMENT Defendants 1 to 3 in O.S. No. 91 of 1999 on the file of the Munsiff's Court, Idukki are the appellants in this appeal filed under Order XLIII Rule I(u) C.P.C. The challenge is against the order of remand passed by the Sub Court, Kattappana in A.S. No. 55 of 2001. The following are the questions of law supplied subsequently by means of a verified petition as necessitated by the decision in Narayanan v. Kumaran – 2004 (4) SCC 26:- 1.When the suit is merely for injunction without a prayer for declaration whether the question of title or the origin of right on the pathway arises for consideration? 2.Whether the points for which the remand is made really arise for consideration in the suit? 3.When admittedly the appellants are using 'C' schedule property as the pathway which is the access to their residence, has not the Lower Appellate Court gone wrong in casting the burden on the appellants? 4.Whether there are any circumstances coming under Order XLI Rule 23 and 23A which would warrant a remand? F.A.O. No. 9/2004 : 2 : 2. The aforesaid suit filed by the respondent herein was one for a perpetual injunction restraining the defendants from putting up a gate at the northern end of the plaint C schedule road which joints the Murikkassery- Karimban road. 3. The case of the plaintiff can be summarised as follows:- The residential property of the plaintiff is situated to the north of the Murikkassery-Karimban road. The petitioner has two other plots of land situated to the south of the said Murikkassery-Karimban road. They are the plaint A and B schedule properties. The plaint A schedule property is at a distance of about 25 metres from the said road. The plaint B schedule property is further to the south of the plaint A schedule property and situated at a distance of about 50 metres. The plaint B schedule property was obtained by the petitioner about 33 years prior to the institution of the suit. Both plaint A and B schedule F.A.O. No. 9/2004 : 3 : properties are non-patta lands which have been fully cultivated by the plaintiff who is appropriating the income therefrom by keeping exclusive possession and enjoyment of the same. There was an old pathway about 3 feet wide starting from Murikkassery-Karimban public road and proceeding southwards. About 10 years prior to the institution of the suit, the said pathway was widened to a motorable road having a width of about 10 feet. The said road was constructed by utilising the portions of the plaint A and B schedule properties. Likewise, the defendants and other property owners on either side of the road had also contributed portions of their properties for the formation of the road. The plaint C schedule is the road, thus, formed. It is by way of dedication that the plaint C schedule road was formed. Except the plaint C schedule road, there is no motorable road to the plaint A and B schedule properties. The defendants are also using the plaint C schedule road for having access to their house. The properties are comprised F.A.O. No. 9/2004 : 4 : in Survey No. 1/1 of Upputhode village. On 16.04.1999, at about 10 a.m., the defendants came to the plaint C schedule road with some workers for digging ditches for the construction of concrete pillars for installing a gate at the northern end of the plaint C schedule road. Even though the said attempt was foiled by the timely intervention of the plaintiff, the plaintiff apprehends that the defendants will translate their intention into action. Hence the suit. 4. The suit was resisted by defendants 1 to 3 contending inter alia as follows:- The suit is not maintainable. The plaintiff has to prove the extent of A and B schedule properties. The plaint C schedule road is lying at a lower level than the plaint A schedule property and there is no entrance from the said road either to the plaint A schedule property or to the plaint B schedule property. No portion of the plaint A and B schedule properties has been used for the construction of the plaint C schedule road. The plaintiff is not having F.A.O. No. 9/2004 : 5 : possession of the entire plaint A schedule property. In the year 1988, the 2nd defendant had purchased 14.50 cents of property from the plaintiff for the construction of a motorable road for the use of the 2nd defendant. The plaint C schedule property was, thus, constructed by utilising the portions of the said 14 ½ cents of land. The remaining extent of the said property is still under the possession of the 2nd defendant. The plaint B schedule property is situated about 10 s away from the plaint A schedule property. The plaint C schedule road at the place of the plaint B schedule property has been constructed entirely through the property of the 3rd defendant. The plaint allegation that there was a three feet wide pathway in existence and the same was widened to form the plaint C schedule road is absolutely false. Prior to the construction of the plaint C schedule road, a way starting from the public road and passing along the eastern side of the property of Alukkal Joseph was being used for having access to the F.A.O. No. 9/2004 : 6 : property of the 2nd defendant. The said pathway is even now in existence and it is being used by the plaintiff also. The plaint C schedule road has been constructed in the year 1990 and the plaintiff has never used the said road. It is a private road over which the plaintiff has no right. The plea of dedication as pleaded in the plaint is absolutely false. 5. On the side of the plaintiff, three witnesses were examined as PWs 1 to 3 of whom PW1 is the plaintiff himself. PW2 is a neighbour and PW3 is an assignee from the plaintiff. On the side of the defendants, four witnesses were examined as DWs 1 to 4 of whom DW1 is the 2nd defendant. DW2 is a neighbour and DW3 is a witness to Ext.B2 agreement for sale and DW4 is the Advocate Commissioner who submitted Ext.C2 report dated 29.11.2000. 6. The learned Munsiff, after trial, as per judgment and decree dated 28.02.2001 dismissed the suit holding that the case of the plaintiff was one of dedication and the F.A.O. No. 9/2004 : 7 : plaintiff had miserably failed to prove the said case. On appeal preferred by the plaintiff as A.S. No. 55 of 2001 before the Sub Court, Kattappana, the learned Subordinate Judge as per the impugned judgment dated 03.07.2003 set aside the judgment and decree passed by the trial court and remanded the case to the trial court after holding that even though two Advocate Commissioners had been deputed by the trial court, there was not even a sketch or plan enabling the court to decide the case satisfactorily. The lower appellate court was also of the view that the case of the plaintiff was really not dedication, but the formation of the plaint C schedule road by contributing portions of property by the adjoining owners and that there was no evidence before court to show that a portion of the plaintiff’s property was sold to the 2nd defendant for the specific purpose of constructing the plaint C schedule road as contended by the defendants. It is the said order of remand which is assailed in this appeal by the defendants. F.A.O. No. 9/2004 : 8 : 7. I heard the counsel appearing on either side. 8. Adv. Shri. K. Lakshminarayan, the learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- It was after a careful analysis of the pleadings and evidence that the trial court came to the conclusion that the plaintiff has miserably failed to establish the dedication set up by him. The suit was only for injunction simplicitor without any prayer for declaration. The plaintiff examined as PW1 has admitted that he had sold 14 ½ cents of his property to the 2nd defendant. The plaintiff has further admitted that there is direct access from the plaint A schedule property to the public road on the north. Hence the observation in paragraph 15 of the judgment of the lower appellate court that the plaint A schedule property is 25 feet to the south of the public road leaving a gap in between the road and the said property, was not justified. Ext.C2 report of the Advocate Commissioner does not F.A.O. No. 9/2004 : 9 : probabalise such a conclusion. It is true that there was no sketch or plan prepared by the Advocate Commissioner. But then, that is hardly a reason for remanding the case to the trial court. As observed by this Court in Sundaresan Nair v. Dr. Krishnankutty Nair – 2007 (2) KHC 414 as far as possible, appellate court should avoid a remand unless it is absolutely essential to protect the interests of justice and a remand for incorporating a prayer for declaration in that case was also held unnecessary and erroneous. The apex court has also observed in India Army & Police Equipment v. Kanodia Brothers - 1968 KLT SN 19 that in a case where there has already been a trial on evidence before the court of first instance, the appellate power of remand should not be exercised merely because the appellate court is of the view that the parties who could lead better evidence have failed to do so. 9. I am afraid that I cannot agree with the above submissions. This is a case arising from Idukki where the F.A.O. No. 9/2004 : 10 : legal profession has not attained that much experience or acumen as could be expected from their counterparts in the urban courts. When this Court deals with a case arising from Idukki, this aspect of the matter cannot be lost sight of and the pleadings have to be approached with some amount of latitude. 10. Even I was finding it difficult to get an idea about the lie of the plaint A and B schedule properties and that of the plaint C schedule road. It appears that the Murikkassery-Karimban road which is a public road runs east-west and the land to the south of the said road is proceeding at a gradient. The plaintiff is residing in a property situated to the north of the said road. The plaintiff has two plots of land namely the plaint A and B schedule properties situated to the south of the said road. Even in the plaint, it is pleaded that the plaint A schedule property is situated at a distance of 25 s from the Karimban – Murikkassery public road. Therefore, the appellate court F.A.O. No. 9/2004 : 11 : was fully justified in assuming that in between the public road and the plaint A schedule property, there is another property. Hence, even if the plaintiff has admitted that he has direct access from the plaint A schedule property to the public road, when no portion of the plaint A schedule property actually touches the public road the alleged access, if any, could only be through the property of somebody else. For a better comprehension of the lie of the land and the topography of the geographical locations of the respective properties, it was necessary that the Commissioner who was deputed by the trial court should have submitted a plan. Without such a plan, the lower appellate court was fully justified in observing that it is not possible to decide the case in a satisfactory manner. I fully endorse the said view taken by the lower appellate court. Except pleading that a portion of the property of the plaintiff was purchased by the defendants and they constructed the plaint C schedule road for their exclusive F.A.O. No. 9/2004 : 12 : use, the document of sale, if any, was not produced before court. Merely because the plaintiff examined as PW1 has admitted that he had given a portion of his property to the defendant, it cannot be said that that is conclusive proof of transfer and that too for the purpose of constructing the plaint C schedule road. It is well settled that title cannot pass by admission. 11. The specific case of the plaintiff is that there was another pathway in the place of the plaint C schedule road and the said pathway was widened into an existing road by the adjoining owners including the plaintiff contributing portions of their properties free of cost to make the present road. If the said contention of the plaintiff as pleaded in the plaint is true, then it is not a case of dedication, as rightly observed by the lower appellate court. When the materials before the court were not complete so as to enable the court to pronounce a satisfactory judgment, the court below was fully justified in remanding the case to the trial court so F.A.O. No. 9/2004 : 13 : as to enable the plaintiff to take out a Commission who will have to submit a detailed plan showing the lie of the properties and incorporating matters which are relevant for the resolution of the controversy between the parties. Merely because the appellate court has all the powers of the trial court in view of Section 107 C.P.C., this is not a fit case where the appellate court should take additional evidence, including the appointment of a Commission and decide the matter. The trial court which is more proximate to the property in question will be in a better position to issue a Commission and dispose of the suit satisfactorily so that the parties may also get an opportunity of a forum of appeal before the lower appellate court. I, therefore, do not find any good ground to interfere with the conclusions reached by the lower appellate court as also the remit made by that court. On the facts and circumstances of the case, I do not find that the questions of law formulated by the appellant arise for consideration in this appeal. On the contrary, I am F.A.O. No. 9/2004 : 14 : satisfied that no substantial question of law arises in this appeal which is accordingly dismissed upholding the remand order passed by the appellate court. The parties shall appear before the trial court on 03.08.2009 without any further notice. Dated this the 7th day of July, 2009. V. RAMKUMAR, JUDGE. rv F.A.O. No. 9/2004 : 15 :