IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 11TH AUGUST 2009 / 20TH SRAVANA 1931 FAO.No. 1 of 2009() ------------------- AS.200/2007 of SUB COURT, PERUMBAVOOR OS.262/2006 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS(S)/RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. GEORGE, AGED 69, S/O.ISSAC, KILITHATTIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK. 2. MARIYAM, AGED 67, W/O.GEORGE, KILITHATTIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK. 3. VARGHESE, AGED 36, S/O.GEORGE, KILITHATTIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK. 4. ISSAC, AGED 33 YEARS, S/O.GEORGE, KILITHATTIL HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK. 5. N.M.VARGHESE @ GEORGE, AGED 60, S/O.VARKEY, NEETUMKARA HOUSE, THACHALAPURAM KARA, KIZHAKKAMBALAM VILLAGE. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): APPELLANTS/PLAINTIFFS: -------------------------------------------------------------- 1. BABU, AGED 36, S/O.VARGHESE, NEETTUMKARA HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE. 2. VARGHESE, AGED 71, S/O.UTHUP, NEETTUMKARA HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE. 3. KURIAKOSE, AGED 67, S/O.UTHUP, NEETTUMKARA HOUSE, POYYAKKUNNAM KARA, KIZHAKKAMBALAM VILLAGE. ADV. SRI.GEORGE SEBASTIAN FOR R1 & 2 SRI.BYJU KURIAKOSE FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 1 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of August, 2009. JUDGMENT Bhavadasan, J, Aggrieved by the order of remand made by the appellate court, the respondents before the appellate court have come up in appeal. Parties and facts are hereinafter referred to as they were available in the original suit. 2. O.S. 262 of 2006 was a suit instituted for a permanent prohibitory injunction against the defendants- appellants. The plaintiffs claimed to be in absolute possession and enjoyment of the plaint schedule properties, which they got it as per partition deed No.2360/67 marked as Ext.A2. On the eastern side of the property lies the Periyar Valley Canal and canal bund road. Plaintiffs would claim that there is a way starting from the canal bund to the northern side of the plaintiffs' property for their exclusive use. Except the FAO.1/2009. 2 plaintiffs, no one else has a right to use the same. The property belong to the plaintiffs and defendants are lying well separated. The allegation of the plaintiffs was that on 29.7.2006 the defendants tried to cut open a way through the northern side of the plaint schedule property and the said act was done when the plaintiffs were preparing to put up a boundary wall. Pointing out that the defendants may again commit such trespass, the suit was laid. 3. Out of the five defendants, defendants 1 to 4 apart from filing written statement preferred a counter claim also. The fifth defendant was set ex-parte. The contesting defendants pointed out that the plaint description of the properties is incorrect. They say that there is a way starting from the eastern canal bund and ends in the property of the plaintiffs. 4. The dispute is that it is the exclusive way for the plaintiffs. The canal bund is on the western side of the canal. It is FAO.1/2009. 3 a motorable bund. But it runs south-eastern corner of the property of the third defendant. The disputed way, according to the defendants, was laid after the construction of the canal. From the canal bund to the southern boundary of the property of the defendants there is a way having a length of 50 metres and width of 3 metre. Defendants' predecessors have been enjoying a right of way through the way for more than 35 years. Suffice it to say, the defendants pointed out that the plaintiffs are not entitled to any relief. 5. The defendants also filed a counter claim saying that the plaint B schedule property, which is the way in question is being used by the defendants as of right. They wanted a declaration of their prescriptive right to use the same. 6. For the purpose of the suit and the counter claim, the court below had P.Ws.1 to 3 examined and Exts. A1 to A3 marked on the side of the plaintiffs and D.Ws. 1 and 2 examined and FAO.1/2009. 4 Exts.B1 to B10 marked on the side of the defendants. Ext. C1 is the Commission report and Ext.C1(a) is the rough sketch. 7. On a consideration of the materials before it, the court below came to the conclusion that the plaintiffs are not entitled to the reliefs prayed for by them. But the counter claim was allowed and a declaration and prohibitory injunction was granted in favour of defendants 1 to 4. 8. Aggrieved by the decree, the plaintiffs went up in appeal as A.S. 200 of 1007 before the Sub Court, Perumbavoor. The first appellate court by judgment dated 7.4.2008 remanded the case to the trial court for a fresh consideration. The operative portion reads as follows: “The decree and judgment of the lower court is set aside. The matter is remanded back to the lower court for fresh disposal after affording both sides an opportunity to adduce fresh evidence. The respondents shall take steps to identify both properties by survey FAO.1/2009. 5 demarcation and to decide the dispute. There shall be no order as to costs.” It is the said order that is assailed in this appeal. 9. Both sides reiterated the contentions raised by them in the court below. The appellate court has found that the available records were insufficient and also that the complaint of the plaintiffs in the suit that they were not given sufficient opportunity to adduce evidence needs to be considered. It is also found that in the absence of a proper sketch and report the issue involved in the suit could not be resolved. The appellate court felt that a proper sketch ought to have been obtained by the court and Ext.C1(a) rough sketch produced was insufficient in the case. 10. The appellate court has given cogent reasons for remanding the case. Probably it may not be correct to direct that fresh evidence shall be taken. It will be only proper to say that further evidence shall be adduced by both sides. One fails to FAO.1/2009. 6 understand how the appellants can have any grievance against the remand order. None of the issues raised by the first appellate court have been decided and the questions have been left open to be decided by the trial court. So also both the parties have been given opportunity to adduce further evidence. It has also mentioned that the respondents will take steps to identify the properties by survey demarcation etc. Whether that direction was proper or not does not arise for consideration in this proceedings before this court. 11. We fail to see any judicial or legal error in the order of remand passed by the court below especially none of the rights of the parties are affected. 12. Faced with the above situation, counsel appearing on either side prayed that there may be a direction to the trial court to dispose of the suit within a time to be stipulated by this court. Being a suit of the year 2006, the court below shall make every endeavour to dispose of the suit as expeditiously as possible at any FAO.1/2009. 7 rate within six months from the date of communication of this order. There will be no order as to costs. The parties shall appear before the court below on 14.9.2009. P.R. Raman, Judge P. Bhavadasan, Judge sb.