IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 FAO.No. 326 of 2009() --------------------------- AS.3/2008 of II ADDL.SUB COURT,KOZHIKODE OS.683/2003 of PRL.M.C.KOZHIKODE-I .................... APPELLANTS/RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. THIRUVANNUR PUTHIYAKOVILAKOM WELFARE SOCIETY (REG.NO.42/1982) BY ITS PRESIDENT, THIRUVANNUR NADA, PANNIYANKARA AMSOM DESOM, KOZHIKODE - 673 029. 2. THIRUVANNUR PUTHIYAKOVILAKOM WELFARE SOCIETY (REG.NO.42/1982) BY ITS SECRETARY, THIRUVANNUR NADA, PANNIYANKARA AMSOM DESOM, KOZHIKODE - 673 029. BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ RESPONDENT(S):APPELLANT/PLAINTIFF ----------------------------------------------- P.K. CHERIYANUJAN RAJA @ SREEMANAVIKRAMAN RAJA, SHARER & CUSTODIAN OF PROPERTIES OF PUTHIYAKOVILAKOM, PADINJAREKKETTU KUTTIMBATTI THAMBURATTI'S THAVAZHI, RESIDING AT SOUDHAN HOUSE, PANNIYANKARA AMSOM, KOZHIKODE. R1 BY ADVS. SRI.R.SUDHISH SMT.M.MANJU THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 17/01/2011, ALONG WITH WPC NO. 14941 OF 2005 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs ORDER ON I.A. NO.4429/2009 IN F.A.0. NO.326/2009 DISMISSED 17/01/2011 SD/- HARUN-UL-RASHID /TRUE COPY/ P.A. TO JUDGE svs HARUN-UL-RASHID,J. ------------------------------- F.A.O.NO.326 OF 2009 & W.P.(C).NO.14941 OF 2005 ------------------------------- DATED THIS THE 17TH DAY OF JANUARY, 2011 JUDGMENT Defendants in O.S.No.683/03 on the file of the Principal Munsiff's Court-II, Kozhikode are the appellants. The appeal is directed against the judgment and decree in A.S.No.3/2008 on the file of the II Addl. Sub Court, Kozhikode. Respondent herein is the plaintiff in the suit. The suit was filed for permanent perpetual injunction restraining the defendants from trespassing into the plaint schedule property and from interfering with the possession and enjoyment of the plaintiff. The trial court dismissed the suit finding that the plaintiff is not entitled to get a decree as prayed for. In the appeal preferred by the plaintiff, the Appellate Court set aside the said judgment and decree and remanded the case for fresh disposal. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. -2- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 2. The plaintiff's case in brief is that as per the final decree proceedings in O.S.No.19/39 the plaint schedule property including other properties were set apart to the share of defendant No.33 in the suit, who is none other than the mother of the plaintiff. The properties allotted to the mother of the plaintiff is 21st schedule in the final decree. Ext.A1 is the final decree in OS.No.19/39. 3. Defendants denied the plaint averments and contended that the plaintiff has got no manner of right over the plaint schedule property and that they obtained right over the property by virtue of a gift. According to the defendants, the property formed part of 20th schedule to the final decree in the suit. The trial court examined the rival contention of the parties for the purpose of deciding as to whether the property was allotted to the predecessor-in-interest of the plaintiff as per Ext.A1 final decree proceedings. The court below compared the description of the plaint schedule property with the description of the property in the 21st schedule of the final decree and also the description of the property given in the 20th -3- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 schedule to the very same final decree. On a comparison of the 20th and 21st schedule attached to Ext.A1 decree and the plaint schedule, the trial court concluded that 20th schedule attached to Ext.A2 coupled with Exts.B1 to B3 would prove that the plaintiff has got no manner of right in respect of plaint schedule property as it was gifted to the lst defendant-Society as per Ext.A3. The trial court dismissed the suit. 4. The trial court committed a mistake in describing the exhibits produced by the plaintiff. In fact the final decree and the schedule attached thereto is Ext.A1. But the court below mistakenly referred to Ext.A2 as the final decree and the schedule attached thereto was marked as Ext.A1. 5. The Appellate court did not go into the merits of the contentions of the parties and decided the case on merits. The Appellate Court pointing out some glaring defects, allowed the appeal and remanded the case for fresh consideration. The Appellate Court observed that Ext.A2 is only a copy of the circular -4- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 issued by the lst defendant-Society. It has nothing to do with the description of the property. The Appellate court further observed that through out the judgment Ext.A2 was referred to as the 21st schedule of the decree in O.S.No.19/1939. I have already pointed that Ext.A1 was mistakenly marked as Ext.A2. It is only an error committed in the trial court judgment. The Appellate Court did not properly appreciate the mistake committed by the trial court, instead the Appellate Court referred to Ext.A2, which is only a copy of the circular and observed that Ext.A2 has nothing to do with the description of the property etc. In fact the trial court passed a decree and judgment on merits by referring to Ext.A1 decree. I have perused Ext.A1. Ext.A1 is a final decree with the schedules attached thereto. After perusing Ext.A1 decree and the schedule attached thereto the trial court passed a decree. The Lower Appellate court without perusing the trial court's records wrongly noted that Ext.A2 has nothing to do with the description of the property. As I said earlier, it is true that Ext.A2 has nothing to do -5- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 with the description of the property because it is only a copy of the circular. The mention of Ext.A2 instead of Ext.A1 may be a typing mistake. The said mistake was not properly appreciated and acted by the learned Judge. The learned Judge wrongly found that none of the documents marked in this case referred to the description of 21st schedule property in the decree. Ext.B1 is the copy of the schedule of the property allotted to the 33 defendant in O.S.No.19/39. Ext.B1 is only part of Ext.A1 decree and the schedule attached thereto. 6. The Appellate Judge did not go into the merits of the contentions of the parties and has not chosen to peruse Ext.A1 decree produced by the plaintiff. The Appellate Court did not examine the trial court records. In the circumstances, the order of remand passed by the Lower Appellate court is unsustainable in law. 7. In the result the appeal is allowed. The order of remand passed in A.S.No.3/2008 is set aside. The Lower Appellate -6- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 Court is directed to consider the appeal A.S.No.3/08 afresh and dispose of the same in accordance with law, within a period of four months from the date of appearance of the parties. The parties shall appear before the Appellate Court on 24th February,2011. It is made clear that I have not stated anything touching the merits of the case and the Appellate Court shall decide the matter afresh untrammelled by any of the observations of this Court in the judgment, which is made only for the purpose of setting aside the order of remand. WP(C) .No. 14941/2005 8. This connected writ petition is filed by the plaintiff in the suit challenging Ext.P14 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The said Tribunal passed Ext.P14 order in Appeal No.943/2005 preferred by the plaintiff for setting aside the building permit dated 11/8/2003 obtained by the Society (lst respondent) for the construction of a -7- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 two storied building in the property. The grievance of the petitioner is that the building site in the permit dated 11/8/2003 in favour of the lst respondent Society takes in portions of the property allotted to the share of his thavazhy as per a decree in O.S.No.19/39. In Ext.P14 order while disposing the appeal, the Tribunal observed that the order passed by the Tribunal will in no way affect the appellant's right to move before the Kozhikode Corporation for action against the building constructed as per permit dated 11/8/03, if it is found on identifying property allotted to the share of his thavazhy by procedure established by law, that the building was constructed taking any portion of the property over which his thavazhy got title or it offends any statutory provision. 9. The learned counsel for the petitioner submitted that he filed IA.No.5213/04 in the suit for taking action against the lst respondent for violating the order of injunction passed by the Munsiff's Court. The learned counsel submitted that when the suit was dismissed, I.A.No.5213/04 filed for initiation of action for the -8- F.A.O.NO.326/2009/ & WP(C).No.14941/2005 violation of the order of injunction also stands dismissed. The counsel pointed out that this Court set aside the order of remand passed in A.S.No.3/08 and directed the Lower Appellate Court to hear and dispose of A.S.No.3/08 on merits and therefore I.A.No.5213/04 also requires consideration on merits. I find that there is some force in the contention of the learned counsel for the petitioner. Therefore, the Lower Appellate court is directed to consider I.A.No.5213/04 also on merits and dispose of the same in accordance with law. With the above direction this writ petition is disposed of. Sd/- HARUN-UL-RASHID, Judge. kcv.