IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 FAO.No. 364 of 2007() ----------------------------------- AS.123/2002 of ADDL. DISTRICT COURT, PARAVUR OS.523/1992 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT (S)/ RESPONDENTS W2 TO 4/LEGAL HEIRS OF ORIGINAL -------------------------- DEFENDANT. 1. S.R.SUBHASH, AGED 36, S/O. RAMAKRISHNAN, ORAVANTHURUTHIL HOUSE, KALADY. 2. ISHA SEKHARAN, AGED 30, ORUKKUTHI HOUSE, VATTAL, PERUMBAVOOR. 3. LILLY DIVAKARAN, AGED 25, KAPRANGATT VEEDU, KANJOOR. BY ADVS.MR.V.RAJENDRAN (PERUMBAVOOR) MR.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- M.V.POULOSE, S/O. VARU, MANJALI VEETTIL, CHENGAL DESOM, KALADY VILLAGE, ALUVA TALUK. (DIED) 2. JEASON, AGED 34, S/O. M.V.POULOSE, MANJALI VEETTIL, CHENGAL DESOM, KALADY VILLAGE, ALUVA TALUK. 3. JIMS, AGED 32 , S/O. M.V.POULOSE, MANJALI EETTIL, CHENGAL DESOM, KALADY VILLAGE, ALUVA TALUK. 4. JISHA, W/O. BAIJU, KOKKAN HOUSE, IRINJALAKUDA. F.A.O. NO.364/2007 5. THRESSIAMMA, W/O. M.V.POULOSE, MANJALI VEETTIL, CHENGAL DESOM, KALADY VILLAGE, ALUVA TALUK. ADDL. R2 R5 ARE IMPLEADED AS THE LEGAL HERIS OF DECEASED SOLE RESPONDENT VIDE ORDER DTD. 22.9.09 ON IA. 346/2007. R1 BY ADVS. MR.K.JAYAKUMAR, MR.R.SURAJ KUMAR, SMT.GEETHA P.MENON. R2 TO R5 BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE R2 TO R5 BY ADVS.MR.K.JAYAKUMAR, MR.P.B.KRISHNAN, MR.R.SURAJ KUMAR, SMT.GEETHA P.MENON. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.4797/2007 IN F.A.O. NO.364/2007 DISMISSED 02.12.2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 364 OF 2007 = = = = = = = = = = = = = = = Dated this the 2nd day of December, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the Addl. District Judge, North Paravur in A.S.123/02. The said appeal was preferred against the judgment and decree in O.S.523/92 of the Sub Court, North Paravur. The suit as instituted was one for a permanent prohibitory injunction as well as a mandatory injunction. The few facts necessary to appreciate the matter are stated as follows. 2. Plaint A schedule property is having an extent of 1.635 cents, plaint B schedule property is having an extent of 615 sq.mtr. and thus A plus B schedule is having a total extent of 2.250 cents. It is the case of the plaintiff that the said properties along with the remainder belonged to their common ancestors and the plaintiff has obtained this property by virtue of Ext.A1 document which is on the F.A.O. 364 OF 2007 -:2:- southern side and the northern side has already been gifted and later assigned in favour of one Mary and thus the plaintiffs' family did have right and possession over 4.50 cents of property. 3. On the other hand the defendant would contend that he is entitled to a total extent of 12.350 cents of land under Exts.B5 to B7 and according to him the plaint B schedule property forms part and parcel of that land and therefore he is entitled to the right over that property. The trial court answered it in favour of the defendant on the ground that the plaintiff has not proved with respect to B schedule and also incidentally referred to the documents to arrive at a decision regarding the title. 4. Really the question of title was not raised. In appeal when the plaintiff was confronted with a situation that the possession is with the defendant in order to avoid complications moved an application for amendment thereby he has sought for recovery of possession of the property on the strength of title. When recovery of possession is sought F.A.O. 364 OF 2007 -:3:- for it becomes really a title suit wherein rights of the parties have to be properly adjudicated. It has to be stated that unless the plaintiff is able to establish that the plaint B schedule property forms part and parcel of Ext.A1 property then necessarily he will be out of Court. The defendant though no burden is on him he can also supply to the Court the materials regarding his right over the property and he may be also entitled to raise the plea with respect to adverse possession. But all these things arise only when the plaint is amended and it becomes a suit for recovery of possession on the strength of title. Since the wider relief is now sought for and as held in very many decisions it is always desirable to avoid multiplicity of proceedings by drawing the parties to suits after suits, therefore the amendment application is allowed and in the light of the amendment the question of title looms large for consideration for which a remand is necessary. Therefore I do not propose to interfere with the order of remand but I make it clear that when the suit is amended for recovery of possession on the strength of title F.A.O. 364 OF 2007 -:4:- the defendants will be entitled to raise all contentions which they can raise in accordance with law and that also has to be considered. Needless to say permission be granted to adduce evidence. Parties are directed to appear before the trial Court on 18.1.2010 for further directions. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-