IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 FAO.No. 104 of 2008() --------------------- AS.154/2005 of II ADDL.DISTRICT COURT,ERNAKULAM OS.1515/2000 of PRL.M.C.,ERNAKULAM .................... APPELLANTS/RESPONDENTS 1 AND 4/DEFENDANTS 1 AND 4. ---------------------------------------------------------------------- 1. ANITHA, W/O.RAMESH, KALAZATH VEETIL, PLASSERY PARAMBU, THANNIKKAL,ELAMAKKARA. 2. RAMESH.K.R, S/O.RAMACHANDRAN, KALAZATH VEETIL, PLASSERY PARAMBU, THANNIKKAL, ELAMAKKARA. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.S.LAKSHMY RESPONDENT(S): APPELLANT AND RESPONDENTS ------------------------------------------------------- 1. ASHA MUKUNDAN, W/O.MUKUNDAN, MAROTTIKKAL HOUSE, ERATTUKULANGARA ROAD, KOCHI-12. 2. A.V.RAMACHANDRAN, S/O.VAMANAN, PLASSERY PARAMBIL, H.NO.48/205A, ELAMAKKARA, KOCHI-26. 3. PONNAPPAN, A/O.ANTONY, ARACKAL VEEDU, T.O.G.FACTORY ROAD, KALAMASSERY. 4. BABU, S/O.GOPALA RAO, PLASSERY PARAMBIL, H,NO,48/201 A, ELAMMAKKARA, KOCHI-26. ADV. SRI.T.B.THANKAPPAN FOR R1 SRI.T.T.HARIKUMAR FOR R1 SRI.S.B.PREMACHANDRA PRABHU FOR R2 & R4 SMT.P.RANI DIOTHIMA FOR R3 SMT.C.G.PREETHA FOR R3 SRI.IGNATIOUS PHILIP FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 104 OF 2008 = = = = = = = = = = = = = = = Dated this the 23rd day of October, 2009. J U D G M E N T This appeal is preferred against the order of remand passed by the Addl. District Judge, Ernakulam in A.S.154/05 whereby the learned Judge set aside the judgment and decree passed by the Munsiff Court and directed to dispose of I.A.1738/01, the application for joint trial and then proceed with the trial of the suits in accordance with law. Few facts are necessary to appreciate the matter. 2. There are two suits filed by the present plaintiff as O.S.1291/99 and the present suit O.S.1515/00. A reading of the plaint in O.S.1291/99 would reveal that there was a partition in the family of the plaintiff whereby the plaintiff was set apart 31 cents of land and the first defendant also 31 cents of land. A schedule to the plaint is the property alleged to be allotted to the plaintiff and B schedule is the property alleged to be allotted to the first defendant. It is the case of the plaintiff that the first defendant has assigned 6.834 cents F.A.O. 104 OF 2008 -:2:- to D4 in 1998 and 8.245 cents to one Ponnappan. According to her the said properties form part and parcel of A schedule allotted to her in the partition deed. On the contra the defendants would contend the plaintiff has no manner of right over the property assigned by D1 in favour of them. So the crux of the matter depends on the decision which is the property allotted to the plaintiff under the partition and which is the property allotted to the first defendant under the partition. If the property so sold are properly identified and demarcated and it is found that the property so assigned by D1 is from the property allotted to the plaintiff then necessarily since the first defendant did not have any right or title to over that property the assignments will be invalid under law. If it is otherwise and it comes within the property of the first defendant then the plaintiffs cannot have any grievance with respect to those assignments. That is the principle question to be adjudicated in this case. 3. In the suit O.S.1291/99 the plaintiff has incorporated the prayer to set aside the document in favour of D4 in O.S.1515/00 and also in favour of Ponnappan on the very same grounds. Then in O.S.1515/00 there is a prayer F.A.O. 104 OF 2008 -:3:- for a mandatory injunction for demolition of the building situated in the alleged A schedule as well as for fixation of boundaries of A and B schedule which are the properties according to the plaintiff alleged to be allotted to the plaintiff and the first defendant, then consequential prayer for injunction as usual also follows. 4. It has been contended that these prayers namely the prayer in O.S.1515/00 ought to have been raised in the other suit O.S.1299/99 and the absence of raising such a plea would amount to a bar under Order 2 Rule 2 CPC. It has to be held that CPC prescribes procedural formalities in order to protect the parties from frivolous litigations but in a case of this nature where the first suit namely O.S.1291/99 itself directly and indirectly takes in all the issues to be answered in both the suits together I feel the question of Order 2 Rule 2 need not be considered technically to defeat the ends of justice. Therefore it is desirable that a solution is given to the parties as follows. 5. Now the first suit which is a comprehensive suit for setting aside the sale deeds as well as for recovery of possession necessarily indicates that there must be a finding F.A.O. 104 OF 2008 -:4:- with respect to the title as well as the validity of the assignment deeds. In order to arrive at such a decision it is absolutely necessary to find out which is that property and the identity of A schedule and B schedule as allotted as per the partition deed has to be clearly and specifically demarcated. Now in the 2nd suit there is a prayer to fix the boundaries between A and B schedule properties. In the first suit what is to be done is to identify A and B schedule properties to find out whether the property covered by the assignment deeds form part of A schedule or B schedule. So without properly identifying and demarcating A schedule and B schedule there cannot be a decree for setting aside the documents or for recovery of possession on the strength of title. Then the question is of a mandatory injunction to remove the constructions alleged to be done by the purchasers in the A schedule. If it is ultimately found that assignment deeds by D1 in favour of D4 and Ponnappan are from the property allotted to the plaintiff then necessarily the assignor, namely D1 would not have any title to the property and therefore the documents will be invalid and the property has to be recovered and given back to the plaintiff. F.A.O. 104 OF 2008 -:5:- 6. On the contra if it is otherwise plaintiff will not be entitled to any relief. Therefore that is also a point which has got direct impact on the decision in O.S.1291/99. In order to have a specific prayer of this nature I permit the plaintiff in the suit to file an application for amendment and direct the court below to allow it and then permit the defendants to file additional written statements and to raise whatever plea that one has to raise and then decide the matter in accordance with law. Needless to say that in order to have a comprehensive and clear finding on the issues raised it is imperative to have a proper identification of the property allotted to the plaintiff and the first defendant as per the partition deed under which they claim and to demarcate the separating line between those two properties. If it is done rest of the reliefs will automatically follow and in that way the suits can be disposed of. It is also necessary that some of the parties may have to be impleaded which also can be allowed by the Court below so that O.S.1291/99 can be considered as a comprehensive consolidated suit to decide all disputes between the parties thereunder. In the light of this permission granted to the plaintiff it is not F.A.O. 104 OF 2008 -:6:- necessary to pursue O.S.1515/00 and therefore I close that suit and direct the Court below to proceed with the other suit in accordance with law and as ordered by me in the above paragraphs. The FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-