IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 FAO.No. 187 of 2011() --------------------- AS.36/2001 of SUB COURT,KOTTARAKKARA OS.298/1995 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS/ADDITIONAL RESPONDENTS 5 TO 8 ------------------------------------------------------------ 1. NAINANKOSHY, S/O.NAINANKOCHU KOSHY, MANKUZHYPANA CHERUKATTUPUTHEN VEEDU, MANNOOR MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 2. ALIYAMMA, D/O.NAINAN KOCHUKOSHY, MANKUZHYPANA CHERUKATTUPUTHEN VEEDU, MANNOOR MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 3. BABY KUTTY S/O.NAINANKOCHU KOSHY MANKUZHYPANA CHERUKATTUPUTHEN VEEDU, MANNOOR MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT 4. OMANAKUTTY D/O.NAINAN KOCHUKOSHY MANKUZHYPANA CHERUKATTUPUTHEN VEEDU, MANNOOR MURI, ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT BY ADV. SRI.ANCHAL C.VIJAYAN FAO 187/2011 -2- RESPONDENT(S): --------------- 1. VAVAKUNJU NAZARUDEEN THOTTUMKARA PUTHEN VEEDU, PULLANJIOTTU,ALAYAMON VILLAGE, PATHANAMTHITTA TALUK,KOLLAM DISTRICT-689695 2. NAINAN GEORGE, VAZHOTTUMANKUZHY PANAPUTHEN VEEDU, PULLANJIOTTU,VAYALAMURI,ITTIVA VILLAGE KOTTARAKKARA TALUK, KOLLAM DISTRICT-91506 3. NAINAN KUNCHANDY MANKUZHYPANA, CHARUVILA PUTHEN VEEDU MANNOOR WARD, VAYALAMURI,ITTIVA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT-691506 THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- F.A.O. No.187 of 2011 ------------------------------------- Dated this the 29th day of August 2011 Judgment This appeal is directed against the order of remand made in AS No.36/01 by the Sub Court, Kottarakkara. That appeal arose from OS No.298/1995 from the Munsiff's Court, Kottarakkara. The appellant before the lower court was the first defendant in the suit. 2. The suit was one for declaration of title and possession and consequential reliefs. The plaintiff claims to have obtained the plaint schedule property by virtue of Exts.A2 and A3 from the second defendant and claimed to be the absolute owner of the property. He claimed that he had planted rubber plantations in the property and had made valuable improvements in the same. Alleging that the defendants are trying to interfere with his possession and enjoyment, the suit was laid. FAO 187/11 2 3. Defendants 2 and 3 remained ex parte. The first defendant contested the suit. He disputed the rights claimed by the plaintiff over the plaint schedule property. According to him, the total extent of property in Survey No.854/1-98 is 1.90 acres and it is lying as a compact plot. The first defendant claims to have purchased 60 cents in the same survey number from defendants 2 and 3 for valid consideration as per Ext.B1 sale deed dated 31.07.1995. Before purchasing the property, he had obtained an encumbrance certificate from the office concerned and it shows no entries regarding execution of documents on the basis of which the plaintiff lays claim. It is pointed out that the documents produced by the plaintiff was as a result of collusion between the plaintiff and defendants 2 and 3. On the basis of these contentions, he prayed for dismissal of the suit. 4. Based on the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A8 FAO 187/11 3 from the side of the plaintiff. The defendants had DWs 1 and 2 examined and Exts.B1 to B9 marked. Exts.C1 to C5 are the commissioner's reports and plans. 5. On a consideration of the materials before it, the trial court found the case of the plaintiff to be acceptable and granted a decree in his favour. That necessitated the first defendant to carry the matter in appeal before the Sub Court, Kottarakkara. 6. The lower appellate court on an independent valuation of the evidence in the case, came to the conclusion that the two documents relied on by the plaintiffs, though specifically disputed by the first defendant, were not duly proved and that the encumbrance certificate produced by the defendant did not show the entries regarding Exts.A2 and A3. In the light of these facts, the lower appellate court thought it fit that the matter requires reconsideration at the hands of the trial court and hence allowed the appeal and remanded the matter to the trial court, enabling the parties to adduce further evidence if FAO 187/11 4 they choose to do so. The trial court was also directed to dispose of the matter afresh in accordance with law. It is against the said judgment and decree that this appeal is filed. 7. The learned counsel for the appellants pointed out that the lower appellate court was not justified in remanding the matter to the trial court since there was clear evidence to show that Exts.A2 and A3 had been executed by defendants 2 and 3 and that the plaintiff had obtained rights over the property. The learned counsel also pointed out that it is significant to note that defendants 2 and 3 were ex parte thereby accepting the fact that the documents were executed by them. The learned counsel further pointed out that Exts.A2 and A3 were registered documents and that is sufficient to show that the plaintiff had rights over the property. The lower appellate court, according to the learned counsel, did not appreciate the evidence in the proper perspective and it ought not to have remanded the matter to the trial court. FAO 187/11 5 8. Though the argument may look attractive at the first blush, on a closer scrutiny, it can be found to be without any basis at all. The plaintiff relies on two documents namely Exts.A2 and A3, the genuineness of which was specifically disputed by the first defendant. Inspite of the said fact, the plaintiff did not feel it necessary to examine any one of the witnesses to prove the execution of the documents to show that by virtue of those documents, he had obtained rights over the property. It is also significant to notice that the lower appellate court has noticed that the encumbrance certificate produced by the first defendant in evidence did not show the entries relating to Exts.A2 and A3. The lower court has noticed that the specific case of the first defendant was that Exts.A2 and A3 are fabricated documents for the purpose of the case. Two main aspects which were noticed by the lower appellate court are that (1) Exts.A2 and A3 are not proved and (2) the absence of entries in the encumbrance certificate regarding execution of Exts.A2 and A3. FAO 187/11 6 Therefore, if the lower appellate court felt that the issue needs reconsideration at the hands of the trial court, which cannot be found fault with. There is nothing to show that the finding of the lower appellate court is either perverse or unwarranted by the evidence on record. Moreover, all that the lower appellate court has done is to remand the matter to enable the parties to adduce further evidence in support of their respective contentions. The result is that this appeal is without any merits whatsoever and it is liable to be dismissed. I do so. However, it is directed that the trial court may dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before the said court. P.Bhavadasan, Judge sta FAO 187/11 7 FAO 187/11 8