IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 29TH JULY 2008 / 7TH SRAVANA 1930 FAO.No. 120 of 2008() --------------------------- AS.87/1998 of SUB COURT, TIRUR OS.84/1995 of MUNI-MAGI.COURT,PONNANI .................... APPELLANTS/SUPPLEMENTARY RESPONDENTS 3 & 4 ----------------------------------------------------------- 1. MASALIHUL ISLAM SABA MAHALU COMMITTEE, NELLISSERY, PONNANI TALUK, MALAPPURAM DISTRICT (KUTTIPPALA JUMA-ATH-MOSQUE COMMITTEE) REPRESENTED BY ITS PRESENT PRESIDENT M.K.MUHAMMEDALI, S/O.BAPPU HAJI, KUTTIPPALA AMSOM, VATTAMKULAM DESOM, P.O.VATTAMKULAM, PONNANI TALUK, MALAPPURAM 2. THE SECRETARY, MASALIHUL ISLAM SABA MAHALU COMMITTEE, NELLISSERY, PONNANI TALUK, MALAPPURAM DISTRICT (KUTTIPPALA JUMA-AT-MOSQUE COMMITTEE) SRI.M.K.SAINUDHEEN, S/O.MOIDU, KUTTIPPALA AMSOM, NELLISSERI DESOM, P.O.KUTTIPPALA, PONNANI TALUK, MALAPPURAM DISTRICT BY ADV. SRI.K.RAMACHANDRAN SMT.R.MEERA RESPONDENTS: APPELLANT & IST RESPONDENT/PLAINTIFF -------------------------------------------------------------------- 1. MUNDEKKATTIL FATHIMA, 48 YEARS, D/O.KUNHIMARAKKAR HAJI, MANAGER, NELLISSERI AIDED JUNIOR BASIC SCHOOL, KUTTIPPALA, PONNANI TALUK, MALAPPURAM DISTRICT. 2. KUTTIPPALA JUMA-ATH-MOSQUE COMMITTEE PRESIDENT P.K.MOIDUNNI, KUTTIPPALA, PONNANI TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD) FOR R1 ADV. SRI. T. KRISHNAN UNNI FOR R1. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 29/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. Nos.1999 & 2995 OF 2008 IN FAO NO.120 OF 2008 DISMISSED 29/7/08 SD/- M.N. KRISHNAN, JUDGE. [ True Copy ] P.A. TO JUDGE. M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 120 OF 2008 = = = = = = = = = = = = = = = Dated this the 29th day of July, 2008. J U D G M E N T This appeal is preferred against the order of remand passed by the Subordinate Judge, Tirur in A.S.87/98. Aggrieved by the order of remand supplemental respondents 3 and 4 in A.S.87/98 has come up before this Court. The suit as originally filed was one for a permanent injunction with respect to 70 cents of land comprised in Re.Sy.No.145/1 in Kuttippala amsom. It is the contention of the plaintiff that the property was obtained by one Thithikuttymma in 1943 and thereafter the plaintiff is in possession. According to the plaintiff the defendant is having property in Sy.No.145/2 and they are attempting to trespass into the plaint schedule property. 2. The defendants on the other hand would contend that the plaintiff does not have any right or possession over the plaint schedule property and it is a part and parcel of the defendants' property and therefore the suit is liable to be F.A.O. 120 OF 2008 -:2:- dismissed. The lower Court on appreciation of the materials had dismissed the suit. It is against that decision an appeal was preferred before the Subordinate Judge, Tirur as A.S.87/98. During the pendency of the appeal the plaintiff preferred an application under Order 6 Rule 17 CPC for amendment of the plaint alleging that the defendants after the dismissal of the suit had trespassed into the plaint schedule property and had reduced it into their possession and had cut and removed valuable trees. The appellate court at the stage of hearing the appeal thought it fit to allow the amendment and thereafter remanded the case back to the trial court for fresh consideration. So as things stand today it has to be stated that the defendants are in possession of the property and the plaintiff is seeking recovery of possession on the strength of her title. 3. Learned counsel for the appellant strongly contends before me, the legislature in its wisdom has curtailed amendment applications under Order 6 Rule 17 CPC. It is contended by the learned counsel that the legislature has set a stage for filing an application for amendment and the intention behind was to see that the F.A.O. 120 OF 2008 -:3:- litigations are not unnecessarily protracted. According to him the plaintiff has moved an application under gross violation of that rule and the appellate court had allowed the amendment application thereby permitting him to protract the litigation. 4. At the out set I may like to point out that the amendment application is filed much prior to the coming into force of the new amendment and therefore proviso to Order 6 Rule 17 after the amendment need not have to be looked into for this purpose. But, at the same time even going by the old law an amendment application is to be considered by the Court and if it feels that for a proper determination of the dispute between the parties it is necessary that has to be allowed provided it is supported by bonafides. 5. Now a situation has reached whereby the plaintiff alleges that on the strength of the judgment pronounced against her the defendants had trespassed into the property and had reduced it into their possession. It is true that the Court below found that the plaintiff has not succeeded in proving her possession on the date of institution of the suit. Now, when the matter goes back as per the order of the F.A.O. 120 OF 2008 -:4:- appellate court, the point that may arise for determination is not with respect to the question who is in possession but the question will be whether the plaintiff is having title to the suit property and whether she is entitled to recovery of possession on the strength of title. Learned counsel further submits before me that there are observations here and there with respect to title and by setting aside the judgment the appellate court has nullified that also. Being a suit for injunction and the question being one of possession simplicitor, even if observations are made by a Court regarding the title that may not have much relevance. Therefore it is also to be stated it is the very same matter that is being adjudicated by the Court with a difference that the trial court has to decide the question of title as well. It is a well settled principle that multiplicity of proceedings has to be avoided as far as possible. When a suit is filed for injunction and there is a contention that the possession has been disturbed by trespass and a prayer is made for a larger relief of recovery of possession on the strength of title I feel if such a prayer is allowed it will put an end to the fight between the parties when that question is ultimately decided. F.A.O. 120 OF 2008 -:5:- Therefore a prayer for a larger relief of recovery of possession sought for in a appellate stage need not be thrown out at all for the reason that by allowing such a prayer only multiplicity of proceedings is averted. Therefore I do not find any mistake committed by the Court below in remanding the case but I make it clear, by virtue of the admission of the plaintiff, the defendants are inducted into possession of the property the defendants can be evicted only by a judgment and decree but at the same time the property has to be preserved and therefore the defendants shall not commit any act of waste in the property till the disposal of the suit. Being an earlier suit of 1995, the trial court shall try to expedite the trial and dispose of the case. Parties are directed to appear before the Tribunal on 1.9.08. M.N. KRISHNAN, JUDGE. ul/-