IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 FAO.No. 154 of 2005() --------------------- AS.125/2001 of II ADDL.SUB COURT,KOZHIKODE (A.S.NO.175/2001 OF DISTRICT COURT) OS.312/1989 of ADDL.MUNSIFF,KOZHIKODE-II .................... APPELLANT - 3RD DEFENDANT - 2ND RESPONDENT -------------------------- GANESHAN, S/O.ALAGIRI, ARAYAKKAT PARAMBA, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.MEENA.A. SMT.M.R.MINI SRI.JAYKAR.K.S. SRI.V.S.ROBIN RESPONDENTS - PLAINTIFFS 2 TO 5, 7 TO 18 AND DEFENDANTS 2, 4 TO 10 - APPELLANTS AND RESPONDENTS 1, 3 TO 9: ------------- 1. MAMIYIL KARUNAKARAN, S/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 2. MAMIYIL ARAVINDAN, S/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 3. MAMIYIL LOHITHAKSHAN, S/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 4. MAMIYIL CHANDRI, D/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 5. MAMIYIL SOUMINI, D/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. FAO NO.154/2005 2 6. MAMIYIL NALINI, D/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 7. MAMIYIL KAMALA, D/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 8. MAMIYIL RAMANI, D/O.MAMIYIL KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 9. MAMIYIL VRINDADEVI, D/O.MAMIYIL APPUKUTY, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 10. MAMIYIL NANDADEVI, D/O.MAMIYIL APPUKUTTY MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 11. MAMIYIL LATHA DEVI, D/O.MAMIYIL APPUKUTTY, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 12. MAMIYIL VENKITA RATNAM, S/O.MAMIYIL APPUKUTTY, MAMIYIL HOUSE, OLAVANNA AMSOM, PANTHEERANKAVU DESOM, KOZHIKODE TALUK. 13. RAJI.V.GANGADHARAN, W/O.GANGADHARAN, MAMIYIL HOUSE, KURUVATTUR AMSOM DESOM, KOZHIKODE TALUK. 14. SWARNAKUMARI GANGADHARAN, MAMIYIL HOUSE, EDAKKAD AMSOM, PUTHIYANGADI DESOM, KOZHIKODE TALUK. 15. SELVARAJAN, MAMIYIL HOUSE, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. (*)16. MANNANBAT SEKHARAN, MAMIYIL HOUSE, VALAYANAD AMSOM DESOM, KOZHIKODE TALUK. (DIED) 17. M.BABURAJ, S/O.KUTTAYI, MAMIYIL HOUSE, OLAVANNA AMSOM DESOM, KOZHIKODE TALUK. 18. REGHU, S/O.ALAGIRI, ARAYAKKATT PARAMBA, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. FAO NO.154/2005 3 19. A.SASIKALA, D/O.PREMKUMAR, 75 B.T.V.K.NAGAR, PUTHUR P.O., TRICHI-620 017. 20. A.MALLIKA, W/O.M.MOHAN, 75 B.T.V.K.NAGAR, PUTHUR P.O., TRICHI-620 017. (**)21. SAROJINI, W/O.BALAKRISHNAN, KALAM MALIKA, 17/1044, ARANGOTTU PARAMBA, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. (DIED) 22. PRASAD, S/O.BALAKRISHNAN, KALAM MALIKA, 17/1044, ARANGOTTU PARAMBA, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. 23. SANTHOSH, S/O.BALAKRISHNAN, KOLAM MALIKA, 17/1044, ARANGOTTU PARAMBA, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. 24. DINESH, S/O.BALAKRISHNAN, KALAM MALIKA, 17/1044, ARANGOTTU PARAMBA, KALATHIKUNNU AMSOM DESOM, KOZHIKODE TALUK. (*)IT IS RECORDED THAT 16TH RESPONDENT IS NO MORE AND THAT RESPONDENTS 13 TO 15 WHO ARE ALREADY IN THE ARRAY OF PARTIES ARE HIS LEGAL HEIRS VIDE ORDER DATED 18.10.2005 AS MEMO CF 11515/2005. (**)IT IS RECORDED THAT 21ST RESPONDENT IS NO MORE AND THAT RESPONDENTS 22 TO 24, WHO ARE ALREADY IN THE ARRAY OF PARTIES ARE HER LEGAL HEIRS VIDE ORDER DATED 18.10.2005 AS MEMO CF 11515/2005. R1 TO R10 & R12 TO R15 BY ADV. SRI.PHILIP ANTONY CHACKO THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 8/1/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- F.A.O.No.154 of 2005 ------------------------------------------------- Dated, this the 8th day of January, 2008 JUDGMENT The third defendant in O.S.No.312/1989 on the file of the Munsiff of Kozhikode - II is the appellant. This appeal is filed against an order of remand passed by the lower appellate court setting aside a decree and judgment passed by the trial court dismissing the suit filed by the plaintiffs and remanding the suit for fresh disposal in accordance with law. 2. The short facts necessary for the disposal of the appeal are as follows: Plaint A schedule property originally belonged to Puzhakkal Kuttappu. He purchased the same in execution of a decree passed by the District Munsiff of Kozhikode as per orders in E.P.No.468/1962. On 25.6.1984 Kuttappu surrendered his title in favour of the first plaintiff. So she became the absolute title holder of the property scheduled in the plaint. The real owner of the property was deceased Mamiyil Kuttayi. When he died his right, title and interest over the suit property devolved upon the plaintiffs along with the second defendant. First plaintiff is the widow of Mamiyil Kuttayi and plaintiffs 2 to 4 are their children. The fifth plaintiff is the widow of a pre-deceased son of the real owner. Plaintiffs claimed exclusive possession over the suit properties. They obtained a certificate of purchase with respect to plaint A schedule property as per orders in SMC.144/1988 of Land Tribunal, Kozhikode. Plaint B schedule property is a part FAO. No.154/2005 2 of A schedule. That property was given as karaima lease to the first defendant. He constructed a small house therein and residing there. Subsequently he trespassed into the property and reduced a portion of A schedule property into his possession which is described as C schedule. The first defendant fraudulently obtained a certificate of purchase from the Land Tribunal, Kozhikode as per orders in O.A.No.2040/1971. Neither the first plaintiff nor Kuttappu were made parties in the Land Tribunal proceedings. Hence the suit for recovery of C schedule property. During the pendency of the suit the first plaintiff died. Subsequently plaintiffs 6 to 14 were impleaded. First defendant also died. Legal heirs of first defendant were impleaded as defendants 3 to 6. Original first defendant filed a written statement contending that the suit was not maintainable. The description and extent of A to C schedules were disputed. The predecessor-in-interest of the plaintiffs did not get possession and title to the plaint A schedule property as alleged in the plaint. The averment that the property originally belonged to Kuttayi was denied. A property measuring five cents in A schedule was obtained on lease by the father of the first defendant under a karaima lease about 90 years back. Ever since the date of entrustment the father of the first defendant was in possession and enjoyment of the property and after his death first defendant is in possession and enjoyment. He obtained a certificate of purchase in respect of five cents of property as per orders in O.A.No.2040/1971. The averment in the plaint that the relationship between the plaintiffs and second defendant was strained was FAO. No.154/2005 3 denied. A schedule property originally belonged to kizhakkekovilakam. In the Land Tribunal proceedings the children of Kuttayi were made parties. The averment that the plaintiffs obtained a certificate of purchase in SMC. No. 148/1988 was denied. If at all any purchase certificate was obtained the same is not binding upon the first defendant since he was not a party to that proceedings. Possession claimed by the plaintiffs over the entire property was disputed. The allegation that under the karaima lease the predecessor-in-interest of the first defendant was given 1 ½ cents of property alone was denied. He prayed for dismissal of the suit. Since the defendants disputed the description, measurement, extent, etc. of the plaint schedule properties, a commission was deputed. The commissioner filed Exts.C1 report and C2 plan. Exts.C1 and C2 were remitted. Thereafter she filed Exts.C3 report and C4 plan. Commissioner filed a report stating that she was unable to identify the suit properties. The trial court accepted the statement of the commissioner and found that the plaintiffs failed to get plaint A schedule properties identified. It also found that the plaintiffs failed to prove the title and possession over the suit property. Regarding the certificate of purchase relied on by the defendants the trial court held that it was not valid and the same was not binding on the plaintiffs. But, in view of the finding that the suit properties were not identified the suit was dismissed. Challenging that decree and judgment plaintiffs filed A.S.No.125/2001 before the Subordinate Judge's Court, Kozhikode (A.S.No.175/2001 of District Court, Kozhikode). The lower appellate FAO. No.154/2005 4 court found that the commissioner did not measure the property claimed by the plaintiffs or defendants. It further found that an opportunity ought to have been afforded to the appellants/plaintiffs to get the property identified. Lower appellate court found that though no appeal or cross-appeal was filed, in view of the arguments advanced by the defendants the finding of the court below that the certificate of purchase obtained by the first defendant is not binding on the plaintiffs is also requires reconsideration. The lower appellate court set aside the finding of the trial court that the plaintiffs were not entitled to a decree of recovery of possession of plaint C schedule property as they failed to prove title and possession over the suit properties and remanded the matter for reconsideration with a direction to afford an opportunity to the plaintiffs to take out a commission to get A to C schedule properties identified. Trial court was also directed to reconsider the validity of Ext.X1 certificate of purchase. Challenging that remand order the third defendant alone has filed this F.A.O. 3. The questions of law raised for consideration are as follows: (1) Is not the appellate court gone wrong in remanding the case to fill the lacuna or to substantiate what the plaintiffs have failed to prove or establish? (2) Is not the appellate court gone wrong in remanding the case in the absence of a specific prayer for remand by the appellants? (3) Was the court below justified in remanding the case for fresh decision for a reason outside the purview of Rule 23 and Rule 23-A of Order XLI FAO. No.154/2005 5 of the Code of Civil Procedure? (4) Was the court below justified in casting burden on the trial court in proving the exact extent and identity of plaint 'A' schedule property as against the burden cast upon the plaintiffs who come forward with the suit to establish their case? 4. According to the plaintiffs the properties originally belonged to Kuttappu. He purchased the property in execution of a decree in E.P.No.468/1962. He took delivery also. The specific case pleaded by the plaintiffs is that the real owner of the property was one Mamiyil Kuttayi. It is also their case that their predecessor-in-interest, Kuttappu, was a benamidar and he surrendered the entire property to the first plaintiff on 25.6.1984. According to the plaintiffs they obtained a certificate of purchase from the Land Tribunal, Kozhikode in SMC.No.144/1988. It is also their case that the predecessor-in-interest of the plaintiffs gave a karaima lease in respect of C schedule property to the predecessor-in-interest of the defendants. Ext.A5 is the karaima lease which was executed by one Bharathan, S/o.Alagiri to Muniswami, S/o.Gopalan. According to the plaintiffs Ext.A5 property along with other properties were purchased by them. 'Karaima' is defined under Section 2 (23A) of the Kerala Land Reforms Act. It reads as follows: “Karaima” means a transfer of lands situate in the Kozhikode district or in the Malappuram district, in consideration of ground rent, principally for the FAO. No.154/2005 6 purpose of erecting a homestead, and described in the document, if any, evidencing the transfer, as Karaima or Panayapattom, Panayachit, or by whatever name called which possesses the characteristics of Karaima” A reading of Ext.A5 also shows that karaima was given in respect of a line building having six rooms and the land appurtenant to that building having a side measurement of 31 ½ x 10 ½ capenter koles. So whatever be the extent of the entire property, the description of the property mentioned in karaima lease, Ext.A5, shows that the name of the entire property is 'Arangatt Paramba'. That property can be identified. Further the parties had not raised any dispute regarding the identity of the property. The commissioner expressed her helplessness in identifying the properties. According to her B schedule property can be identified in A schedule property at a number of places. But, so far as the karaima property is concerned, there can be only one plot in which the building is situated. So there will not be any difficulty in identifying that plot. As rightly observed by the lower appellate court, the commissioner can identify the entire property with the help of the Taluk Surveyor and locate B and C schedule properties also. 5. Trial court found that Ext.X1 certificate of purchase is not valid. Though no appeal or cross-appeal was filed, in view of the arguments advanced by the defendants, the lower appellate court set aside that finding. It is a case in which the plaintiffs as well as the defendants raised their their title on the basis of certificate of purchases. According to the plaintiffs they obtained a certificate of FAO. No.154/2005 7 purchase in respect of the very same property as per order in SMC. No.144/1988. According to the defendants they obtained a certificate of purchase in the year 1977 as per order in O.A.No.2040/1971. Lower appellate court directed the trial court to reconsider the issue regarding the validity of Ext.X1 certificate of purchase. Virtually it was an open remand. 6. Learned counsel for the appellant has argued that in a suit for recovery of possession it is the duty of the plaintiffs to prove their title. It is argued that since recovery is sought the burden is on the plaintiffs to get that property identified. It is also argued that there was no proper appreciation of evidence. It is true that the trial court found that the plaintiffs failed to prove their title. But that finding is based on assumption that the property is not identifiable. The trial court gave undue importance to the statements of the commissioner. Commissioner did not make any attempt to get A to C schedule properties identified with the help of the Taluk Surveyor. Even a plot wherein the building is situated is not properly identified. When a commissioner who is deputed to identify the properties admits her inability to identify the properties, the trial court ought to have set aside that report and plan and appointed another commissioner for properly identifying the properties. Merely because the commissioner was not able to identify the properties, the parties cannot be denied of the relief. So the view taken by the lower appellate court that it is only just and proper to afford an opportunity is correct and does not call for any FAO. No.154/2005 8 interference. None of the questions of law framed in the appeal arise for consideration. There is no merit in the appeal. It is only to be dismissed. In the result, F.A.O. is dismissed. I.A.Nos.2284 and 3970/2005 in F.A.O.No.154/2005 will stand dismissed. K. PADMANABHAN NAIR, JUDGE. cks