IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 FAO.No. 228 of 2008() --------------------- AS.120/2001 of PRINCIPAL SUB COURT,ATTINGAL OS.566/1997 of MUNSIFF COURT,ATTINGAL .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: --------------------------------------------- 1. P. AYYAPPAN NAIR, S/O.PACHANPILLAI, AGED 62, RESIDING AT KAVINAKATHU VEEDU, PATTATHIL MURI, MELTHONNAKKAL VILLAGE. 2. S. SHEELAJA, D/O. SAROJINI AMMA, AGED 34, RESIDING AT KAVINAKATHU VEEDU, PATTATHIL MURI, MELTHONNAKKAL VILLAGE. BY ADV. MR.G.S.REGHUNATH RESPONDENTS/APPELLANTS/DEFENDANTS: ------------------------------------------------ 1. P. MADHAVAN PILLAI, S/O. PACHANPILLAI, AGED 84, RESIDING AT NALINALAYAM, PATTATHIL MURI, MELTHONNAKKAL VILLAGE (DIED). 2. AMBIKAKUMARI, D/O. NALINI AMMA, AGED 42, RESIDING AT NALINALAYAM, PATTATHIL MURI, MELTHONNAKKAL VILLAGE. 3. VASUDEVAN PILLAI, S/O. CHANDRAGANGADHARAN PILLAI, AGED 50, RESIDING AT NALINALAYAM, PATTATHIL MURI, MELTHONNAKKAL VILLAGE. ADV. MR.SIBY MATHEW FOR R2 & 3 MR.PHILIP J.VETTICKATTU FOR R2 & 3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: FAO.No. 228 of 2008 ORDER ON I.A.NO.3716/2008 IN F.A.O.NO.28/2008 DISMISSED. 21.5.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------- FA.O.No.228 Of 2008 ---------------------------- Dated this the 21st day of May, 2010. J U D G M E N T Plaintiffs in O.S.No.566 of 1997 on the file of the Munsiff Court, Attingal, are the appellants. The suit was originally filed for perpetual injunction restraining the defendants from demolishing the old boundaries of plaint schedule properties, trespassing over the same, creating any new pathway over plaint schedule property or committing any waste in the property. The trial court decreed the suit, plaintiffs' title and possession of the plaint schedule property was declared and a permanent prohibitory injunction was passed whereby the defendants are restrained from trespassing into the plaint schedule property or commit any waste or doing any act which may cause obstruction to the plaintiffs' peaceful possession and enjoyment of the property. In the appeal preferred by the defendants, by judgment dated 31.7.2008, the lower appellate court allowed the appeal, remanded the matter, directing the trial court to dispose of the suit afresh untrammelled by the observations made by the appellate court judgment. Being aggrieved by the order of F.A.O.No.228 Of 2008 ::2:: remand the plaintiffs have preferred the appeal. Parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 2. The dispute is in respect of 9 cents of land lying on the southern side of the plaint schedule property having an extent of 1 acre 39 cents. Both the plaintiffs and defendants are claiming title and possession over the disputed portion of land. The plaintiffs and defendants are close relatives. The mother of first plaintiff and the first defendant namely, Bhargavi Amma had 2 acres and 8½ cents in survey No.2516/A in Melthonnakkal Vilage. As per partition deed No.4535/1952, out of 2 acres and 8½ cents mentioned above, 1 acre 37 cents on the east and 2 cents on the southern side of remaining 71½ cents was allotted to the first plaintiff and mother jointly as A schedule in the deed, marked as Ext.A1 in the case, and the remaining 69½ cents was allotted to the first plaintiff's brother Gopala Pillai. At the time of execution of Ext.A1 partition deed the first plaintiff was a minor having 7 years old. Subsequently, their mother executed Ext.B2 sale deed No.2227/1953 in favour of the first defendant Madhavan Pillai, in respect of 7 cents on the southern side of 1 F.A.O.No.228 Of 2008 ::3:: acre 37 cents and 2 cents on the southern side of 71½ cents. Thus, the first defendant obtained 9 cents as per Ext.B2 sale deed. In the year 1974, the mother executed Ext.B1 settlement deed conveying her one half right in 1 acre 30 cents in favour of the first plaintiff. Thus, the first plaintiff became absolute owner of 1 acre 30 cents. The extent covered by the said settlement deed is the area excluding the 9 cents sold in favour of the first defendant. In the year 1997, the first defendant sold the disputed 9 cents to his daughter, the second defendant as per Ext.B7 sale deed. The second defendant claim title and possession over the disputed 9 cents. The trial court, after a detailed consideration of the materials produced before the court, held that under Ext.B1, the property conveyed to the first plaintiff is 1 acre 30 cents excluding the 9 cents on the southern side which was covered as per Ext.B2 sale deed. It was further observed that, it is clear from Ext.B2 sale deed that the first plaintiff had got information about Ext.B2 sale deed in the year 1974 and the first plaintiff had not chosen to challenge Ext.B2 till now. The trial court also observed that the first plaintiff as PW1 admitted that he attained majority in he year 1964, that he was F.A.O.No.228 Of 2008 ::4:: a major at the time of execution of Ext.B1 settlement deed and that if he had no knowledge about Ext.B2 sale deed he could have filed a suit for a declaration in respect of Ext.B2 sale deed and further held that the facts and circumstances of the case clearly shows that the first plaintiff has knowledge about Ext.B2 sale deed from 1974 onwards. The trial court also examined the question as to who is in possession of the disputed 9 cents. The trial court held that the defendants has not obtained possession of 9 cents as per Ext.B2 sale deed and the same was in possession of the plaintiff from 1953 onwards and further held that the title obtained by the first defendant as per Ext.B2 sale deed has been lost by the continuous and uninterrupted possession of the plaintiffs adverse to the defendants and that the plaintiffs have perfected their title over the property by adverse possession and limitation. The trial court on the basis of the said findings decreed the suit declaring the plaintiffs' title and possession over the plaint schedule property and also issued permanent prohibitory injunction. 3. In the appeal preferred by the defendants the lower appellate court re-appreciated the evidence. During the F.A.O.No.228 Of 2008 ::5:: pendency of the appeal the appellants produced mortgage deed No.2057 dated 10.10.1973 and “purathezhuthu” executed by the first defendant in favour of one Sarasamma. The said document was produced along with I.A.No.874 of 2008 requesting the appellate court to receive in evidence the mortgage deed in exercise of the power under Order XLI Rule 27 of the Code of Civil Procedure. From the additional documents produced before the appellate court, it can be seen that in the year 1973, the disputed 9 cents was mortgaged by the first defendant to one Sarasamma which has been redeemed in the year 1983 by executing a “purathezhuthu”. Appellants contended that the additional documents will have an important bearing on the merits of the case and therefore prayed to accept the additional documents in evidence. The respondents/plaintiffs vehemently opposed the admission of the additional documents. A detailed objection has also been filed. According to the learned Judge the additional documents are vital documents as far as the case is concerned, being a mortgage deed in respect of the disputed 9 cents executed in the year 1973. The appellate court also found that the “purathezhuthu” which was also produced along with the F.A.O.No.228 Of 2008 ::6:: mortgage deed would go to show that the mortgage was redeemed after ten years, in the year 1983. In this context, the lower appellate court took the view that a remand is necessary for affording an opportunity to the parties to establish whether there is transfer of possession of the property based on the mortgage deed and that there are sufficient grounds to allow I.A.No.874 of 2008 and held that a remand is inevitable. 4. The lower appellate court also observed that the records would show that on 19.6.2001 the lower court raised six issues whereas the judgment reveals that those were not the issues considered by the lower court. The appellate court observed that the issue as to the adverse possession and limitation has not been specifically framed. In such circumstances also, the court also held that issues are not properly framed and not considered. 5. Learned counsel appearing for the plaintiffs submitted that framing of additional issues does not arise since the issue to be decided is as to whether the plaintiffs have got title and possession over the plaint schedule property. The trial court can consider the question of framing additional issues only after F.A.O.No.228 Of 2008 ::7:: hearing both sides and after considering the objections raised by the plaintiffs. I do not find any reason to interfere with the conclusions and observations entered by the lower appellate court. The appellate court directed the trial court to dispose of the matter afresh as expeditiously as possible, untrammelled by any of the observations made by the appellate judgment. In the interest of justice, this Court is of the view that the case can be decided afresh within a time frame fixed by this Court. The trial court shall dispose of the suit within a period of six months from the date of receipt of a copy of this judgment. The date of appearance of the parties is fixed as 22.6.2010. The records of the case shall be transmitted immediately to the trial court, forthwith. In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-