High Court Kerala High Court

Achampatt Shafsi Shareef vs Fathima on 6 June, 2008

Kerala High Court
Achampatt Shafsi Shareef vs Fathima on 6 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

FAO.No. 140 of 2008()


1. ACHAMPATT SHAFSI SHAREEF,
                      ...  Petitioner

                        Vs



1. FATHIMA, D/O. ACHMPATT KUNHALIKUTTY
                       ...       Respondent

2. KUNHAYIN HAJI,

3. PULLIKKALAKATH MUHAMMEDKOYA,

4. KUNHIKOYAMUTTY NAHA HAJI,

                For Petitioner  :SRI.T.SETHUMADHAVAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :06/06/2008

 O R D E R
                              M.N.KRISHNAN, J.
                              --------------------------
                           F.A.O. No. 140 OF 2008
                                ---------------------
                    Dated this the 6th day of June, 2008

                                  JUDGMENT

This appeal is preferred against the order of remand passed by the

District Judge, Manjeri, in AS No.107/05. Since the matter is remanded

and questions are directed to be resolved by the trial court, it is not correct

on the part of this court to go into the merits of this case. But the only point

that is to be considered is whether the order of remand is against the

provisions of law. Now it is a well settled principle that unless there is a

substantial question of law even an order of remand cannot be challenged

by way of an appeal. The case of the appellant/plaintiff is that he had

obtained the property by virtue of a gift deed executed in the year 1988.

On the contrary, the 1st defendant in her written statement would contend

that she does not dispute about the two rooms which are described in the

plaint schedule. The plaint schedule does not give the entire property but it

refers to the two rooms. Admittedly there are five rooms in that building.

So if the suit for recovery of possession is with respect to the entire

property, the entire five rooms should have been shown in the plaint

schedule. That is why it is specifically stated in the written statement that

the 1st defendant has no objection with respect to the two rooms shown in

the plaint schedule. But at the time of consideration of the case, the entire

property was considered and thereafter the son of 1st defendant deposed

FAO No.140/08 2

before the court that his mother has got oral gift of two rooms in the year

1977. Since there was not a pin-pointed pleading, the court could not have

decided that matter as well. The appellate court felt the need of filing an

additional written statement and it has been allowed. When there is some

doubt cast in the mind of the court for adjudicating the matter for the

reason that the pleadings are not so sufficient or the description in the

plaint schedule is confusing, there is nothing wrong for a court of law to

make the things straight by directing the parties to have their proper

contentions and then directing the matter to be decided in accordance with

law. I make it clear that this court is not expressing anything on the alleged

oral gift or with respect to the declaration of title of the plaintiff for the

reason it is a matter that has to be resolved by the court on satisfactorily

adducing evidence by the parties. I do not find any substantial question of

law involved in this case to entertain this appeal. If amendment of the

pleadings becomes necessary in view of the acceptance of a written

statement, the plaintiff be permitted to do the same as well.

Therefore, the FAO is accordingly dismissed.

M.N.KRISHNAN, JUDGE
vps