IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD FEBRUARY 2010 / 4TH PHALGUNA 1931 FAO.No. 199 of 2006() ---------------------------- AS.20/2000 of PRL.SUB COURT,TRIVANDRUM OS.1653/1996 of PRL.M.C.,TRIVANDRUM ................................. APPELLANTS: -------------------- 1. INDIRA, W/O. LATE RAJACHANDRAN, PRESENTLY RESIDING AT BIJI NIVAS, MAVELIPURAM, KAKKANADAU P.O., COCHIN-30, FROM CANARA BANK BUILDING, KATTAYIKONAM (VIA) POTENCODE, THIRUVANANTHAPURAM. 2. BIJI, D/O. INDIRA, CANARA BANK BUILDING, PANACHAVILA, KATTAYIKONAM, POTHENCODE, THIRUVANANTHAPURAM. 3. BINOY, S/O. RAJACHANDRAN, DO. DO. 4. BIJOY, S/O. RAJACHANDRAN, DO. DO. (APPELLANTS 2,3 & 4 REPRESENTED BY POWER OF ATTORNEY HOLDER, THE 1ST APPELLANT HEREIN.) BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.S.SUJIN RESPONDENT(S): DEFENDANTS: -------------------------- 1. SIMILA, RESIDNG AT PANACHIVILA VEEDU, KATTAYIKONA (VIA), POTHENCODE, THIRUVANANTHAPURAM. 2. SATHEESAN, RESIDING AT DO. DO. (DIED) * 3. VIMALA, W/O.LATE SATHEESAN, RESIDING AT PANACHIVILA VEEDU, KATTAYIKONA (VIA), POTHENCODE, THIRUVANANTHAPURAM. FAO.199/06 4. DEEPA, D/O LATE SATHEESAN, DO. DO. 5. SEEBA, D/O. LATE SATHEESAN, DO. DO. 6. TARA, D/O. LATE SATHEESAN, DO. DO. * (R3 TO R6 IMPLEADED AS ADDL.RESPONDENTS AS THE LEGAL HEIRS OF DECEASED 2ND RESPOMNDET AS PER ORDER DATED 12.1.2010 IN I.A. NO.3752/06) ADV. SRI.T.K.ANANDA PADMANABHAN FOR R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. ------------------------------- F.A.O.No.199 OF 2006 --------------------------------------- Dated this the 23th day of February, 2010 J U D G M E N T This is an appeal preferred against the order of remand passed by the Principal Subordinate Judge, Trivandrum in A.S.20/2000. The appellate court set aside judgment and decree passed by the Principal Munsiff Court in O.S.1653/96 and remitted the case to be tried by the trial court. It is against that the plaintiff has come up in appeal. It is desirable to refer the the prayer in the plaint first. The prayer in the plaint is to grant a decree setting aside the document No.2708/96 marked as A9 then for recovery of possession of 465 Sq. links of property described in D schedule and there is further prayer for injunction etc. The trial court after consideration of the entire materials had granted a decree in favour of the plaintiff setting aside the document Ext.A9. The plaintiff was also allowed to recover 465 Sq.links of property from the defendants. There was also a permanent prohibitory injunction with respect to the property covered by Ext.A9 document. The court also granted damages of Rs.3,000/-. The counter claim was rejected. FAO.199/06 2 2. The brief facts necessary for the disposal of the appeal are as follows: 50 cents of property was divided, of which, 18 cents on the northern side compromised in survey No.1507/2/11 was allotted to one Omana. 16 cents on the southern side was allotted to PW1, Rajachandran. 16 cents in the middle portion was allotted to Satheesan, the second defendant. Omana sold 18 cents to second plaintiff, Indira in the year 1972. The second defendant, Satheesan sold 14.300 cents of his 16 cents to PW1 and retained 1.700 cents of land. Then there was an exchange deed with respect to 1.700 cents of this land between the second defendant and Rajachandran. Now the grievance of the plaintiff is after transferring the property in favour of the plaintiff this second defendant transferred that land again to another person. The main grievance is that by playing fraud on the plaintiffs document with respect to this 1.700 cents of land which was marked as Ext.A9 was executed and therefore the request is to set aside the document with respect to that. The property covered by Ext.A9 is the property described in D schedule ie., 1.700 cents of land + 465 Sq. links of land. 465 sq. links of land FAO.199/06 3 covered by Ext.A9 is sought to be recovered on the ground that it is a trespassed area. Now the appellant court considered the question and remanded the case to trial court for fresh consideration for identification of the property for a proper disposal. 3. After hearing the learned counsel for both sides, now the prayer has to be compartmentalised into two ie., with respect to 1.700 cents of land as No.1 and 465 sq. links of land as No.2. There cannot be any dispute with respect to the identification of 1.700 cents of land between the parties for the reason that the parties have entered into various documents with respect to that, the correctness of which is under challenge. But so far as the property in relation to 465 Sq.links is concerned, the contention of the plaintiff appears to be that it is a part of the land which has been set apart to Rajachandran and alleged to be assigned under Ext. A9. The question to be decided depends upon the validity of Ext.A9. If it is valid and genuine then the question with respect to 1.700 cents of land and 465 Sq.links of land may not arise for consideration because it will be an out and out transfer by virtue of which plaintiff will lose right over the FAO.199/06 4 property. But on the contra, if it is found that the document is liable to be set aside for any of the ground mentioned, then the question of title does not pass and the only question is, to find out which is the 465 Sq.links of land and whether the plaintiff have got right over that property. Therefore I feel the matter has to be considered by the appellate court to find out the correctness of Ext.A9 document. If on merits the court enters into the finding that Ex.A9 is valid and correct, there may not be any purpose in sending back case to trial court. If so the plaintiff will not be entitled to any relief. 4. Therefore the order of remand is set aside and the matter is send back to the appellate court with a direction to consider the correctness of Ext.A9 as projected by the parties and arrive at a decision. In case the court finds that Ext.A9 is vitiated for the grounds mentioned and then the court feels there is some dispute with regard to 465 Sq.links, then only the court may consider the question of remand to the trial court for identification of the property. With these directions the appeal is allowed ad the matter is disposed of. The parties are directed to appear before the Principal Subordinate Judge's court, FAO.199/06 5 Trivandum on 23.3.2010. I also make it clear that the learned Subordinate Judge is directed to hear the appeal on all points raised. M.N. KRISHNAN, JUDGE. sou.