Case: JOSE Vs. JOHNSON

Since the rank of the parties was described differently in the said proceedings the parties will be referred in the rank assigned to them in the trial court in the original suit for the sake of convenience and clarity. The appellant herein was the defendant, while the respondent herein was the plaintiff in the suit. They will be referred accordingly3. The chronology of the events is that the plaintiff filed the suit bearing O.S. No.288/2009 in the Court of the Munsiff at Aluva seeking for judgment and decree of permanent prohibitory injunction in respect of the suit schedule property. The defendant appeared and filed detailed written statement disputing the claim of the plaintiff. Based on the rival pleadings the trial court framed issues, the parties tendered evidence and the trial court decreed the suit through its judgment dated 26.08.2011. The defendant claiming to be aggrieved by the same preferred an appeal under Section 96 of Civil Procedure Code (CPC for short) in A.S. No.186/2011. The First Appellate Court on reappreciating the matter, through its judgment dated 31.03.2014 set aside the judgment dated 26.08.2011 passed by the trial court in O.S. No.288/2009 and remanded the suit to the trial court for fresh disposal in terms of the directions issued. Since it was a remand in terms of order 41 Rule 23A CPC, the plaintiff preferred an appeal to the High Court in FAO (RO) No.229/2014 as contemplated under Order 43 Rule 1(W) of CPC. The High Court through its judgment dated 14.11.2014 has allowed the appeal and restored the judgment and decree passed by the trial court. The defendant, therefore, claiming to be aggrieved is before this Court in this appeal4. The brief facts are that the plaintiff claimed right in respect of the property bearing Resurvey No.371/5 (old Survey No.517/7, 517/1 in Block 28 measuring 15 Are in Vadakkumbhagom, Aluva Taluk, Sreemoolanagaram Sub District, Ernakulam under a Partition Deed No.2617 of 2007 being a cousin of the defendant No.1, the fathers of the plaintiff and defendant No.1 being brothers. The cause for the suit was stated to be the obstruction caused by the defendants when the plaintiff on 19.06.2009 was in the process of constructing a wall on the eastern side. The nature of the incident is referred and, in that background, prayed for permanent prohibitory injunction. The plaintiff examined himself and relied upon the documents at Exhibits A1 to A6. The Report of the Court Commissioner and the sketch were marked as Exhibits C1 and C1(a). The defendant did not tender any evidence or produce documents5. The trial court while answering the issues has held that the property is identifiable and the plaintiff is the owner in possession of the suit schedule property. In that light on answering the issues in favour of the plaintiff has decreed the suit. In the appeal filed by the defendant the lower appellate court while reappreciating the evidence has taken into consideration the contention put forth by the defendant with regard to the nature of the property and the manner in which the property had been partitioned in the year 1964. The Court had also taken note that in such circumstance the plaintiff had not made any effort to identify the property nor was the defendant provided sufficient opportunity to prove their claim. The lower appellate court also took note that an application in I.A. No.349/2013 had been filed by the defendant under Order 41 Rule 27 for producing the certified copy of the Partition Deed No.651/1964. Further it was concluded that the suit was tried in a hurry without appropriately identifying the property along with its measurement. In that circumstance, the lower appellate court on finding that the matter requires reconsideration had set aside the decree and remanded the matter6. In the appeal filed by the plaintiff before the High Court, the High Court on taking note that the suit was for perpetual injunction only and in that light since the possession of the plaintiff not being in serious dispute, was of the opinion that the title to the property was not relevant. In that circumstance, the High Court was of the opinion that the learned Judge of the lower appellate court was not justified in arriving at the conclusion that the property is to be measured on the basis of the title deed. In that view, the High Court has set aside the judgment of the lower appellate court and restored the decree passed by the trial court.

Reasoning: 8. As noted the lower appellate court has set aside the judgement, remanded the matter and permitted the defendant to file the application under Order 41 Rule 27 CPC before the trial court and has permitted the parties to tender further evidence so as to enable the identification of the plaint schedule property with the assistance of the Taluk Surveyor and thereafter arrive at the conclusion. Per contra, the High Court on taking note that the suit is for bare injunction has found that the exercise to identify the property with reference to the ownership is not justified11. In the backdrop of the contentions put forth, though there could be no cavil to the position relating to the relevance of possession being the prime consideration in a bare suit for injunction as contended by the learned senior advocate for the plaintiff, each case will have to be examined on its own merits keeping in view the nature of the pleading put forth before the trial court and the understanding of the case with which the parties have gone to trial. If this aspect is kept in view the very nature of the plaint averments would indicate that the parties to the suit are related to each other and the property which was being commonly enjoyed by their predecessors was partitioned under the Deed No.2617/2007. The present dispute had arisen when the plaintiff was seeking to put up a construction of the wall and the defendants had objected to the same14. If the above aspects are kept in view the observations made by the High Court relating to the consideration required being only of possession since the suit was for perpetual injunction is without reference to the nature of contentions put forth in a suit, the issues that had been raised for consideration and the conclusion that had been reached by the trial court as also the lower appellate court in that background. Hence, we are of the opinion that in the facts and circumstance of the present case the High Court was not justified, but the conclusion of the lower appellate court to set aside the judgment and decree of the trial court and remand the matter for reconsideration by the trial court was the appropriate course.