IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 9 of 2004()
1. JOSEPH AGED 70, S/O. THOMAS,
... Petitioner
2. LIBISTON AGED 35 YEARS,
3. MATHEW, AGED 47 YEARS, MUNDIYAMKAL HOUSE
Vs
1. THOMAS S/O. MATHEW KUZHIKUTHIYANI HOUSE,
... Respondent
For Petitioner :SRI.N.L.KRISHNAMOORTHY
For Respondent :SRI.S.M.PRASANTH
The Hon'ble MR. Justice V.RAMKUMAR
Dated :07/07/2009
O R D E R
V. RAMKUMAR , J.
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F.A.O. No. 9 of 2004
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Dated this the 7th day of July, 2009.
JUDGMENT
Defendants 1 to 3 in O.S. No. 91 of 1999 on the file of
the Munsiff’s Court, Idukki are the appellants in this appeal
filed under Order XLIII Rule I(u) C.P.C. The challenge is
against the order of remand passed by the Sub Court,
Kattappana in A.S. No. 55 of 2001. The following are the
questions of law supplied subsequently by means of a
verified petition as necessitated by the decision in
Narayanan v. Kumaran – 2004 (4) SCC 26:-
1.When the suit is merely for injunction without
a prayer for declaration whether the question
of title or the origin of right on the pathway
arises for consideration?
2.Whether the points for which the remand is
made really arise for consideration in the
suit?
3.When admittedly the appellants are using ‘C’
schedule property as the pathway which is
the access to their residence, has not the
Lower Appellate Court gone wrong in casting
the burden on the appellants?
4.Whether there are any circumstances coming
under Order XLI Rule 23 and 23A which
would warrant a remand?
F.A.O. No. 9/2004 : 2 :
2. The aforesaid suit filed by the respondent herein
was one for a perpetual injunction restraining the
defendants from putting up a gate at the northern end of
the plaint C schedule road which joints the Murikkassery-
Karimban road.
3. The case of the plaintiff can be summarised as
follows:-
The residential property of the plaintiff is situated to
the north of the Murikkassery-Karimban road. The
petitioner has two other plots of land situated to the south
of the said Murikkassery-Karimban road. They are the
plaint A and B schedule properties. The plaint A schedule
property is at a distance of about 25 metres from the said
road. The plaint B schedule property is further to the south
of the plaint A schedule property and situated at a distance
of about 50 metres. The plaint B schedule property was
obtained by the petitioner about 33 years prior to the
institution of the suit. Both plaint A and B schedule
F.A.O. No. 9/2004 : 3 :
properties are non-patta lands which have been fully
cultivated by the plaintiff who is appropriating the income
therefrom by keeping exclusive possession and enjoyment
of the same. There was an old pathway about 3 feet wide
starting from Murikkassery-Karimban public road and
proceeding southwards. About 10 years prior to the
institution of the suit, the said pathway was widened to a
motorable road having a width of about 10 feet. The said
road was constructed by utilising the portions of the plaint
A and B schedule properties. Likewise, the defendants and
other property owners on either side of the road had also
contributed portions of their properties for the formation of
the road. The plaint C schedule is the road, thus, formed.
It is by way of dedication that the plaint C schedule road
was formed. Except the plaint C schedule road, there is no
motorable road to the plaint A and B schedule properties.
The defendants are also using the plaint C schedule road for
having access to their house. The properties are comprised
F.A.O. No. 9/2004 : 4 :
in Survey No. 1/1 of Upputhode village. On 16.04.1999, at
about 10 a.m., the defendants came to the plaint C schedule
road with some workers for digging ditches for the
construction of concrete pillars for installing a gate at the
northern end of the plaint C schedule road. Even though
the said attempt was foiled by the timely intervention of the
plaintiff, the plaintiff apprehends that the defendants will
translate their intention into action. Hence the suit.
4. The suit was resisted by defendants 1 to 3
contending inter alia as follows:-
The suit is not maintainable. The plaintiff has to prove
the extent of A and B schedule properties. The plaint C
schedule road is lying at a lower level than the plaint A
schedule property and there is no entrance from the said
road either to the plaint A schedule property or to the plaint
B schedule property. No portion of the plaint A and B
schedule properties has been used for the construction of
the plaint C schedule road. The plaintiff is not having
F.A.O. No. 9/2004 : 5 :
possession of the entire plaint A schedule property. In the
year 1988, the 2nd defendant had purchased 14.50 cents of
property from the plaintiff for the construction of a
motorable road for the use of the 2nd defendant. The plaint
C schedule property was, thus, constructed by utilising the
portions of the said 14 = cents of land. The remaining
extent of the said property is still under the possession of
the 2nd defendant. The plaint B schedule property is
situated about 10 s away from the plaint A schedule
property. The plaint C schedule road at the place of the
plaint B schedule property has been constructed entirely
through the property of the 3rd defendant. The plaint
allegation that there was a three feet wide pathway in
existence and the same was widened to form the plaint C
schedule road is absolutely false. Prior to the construction
of the plaint C schedule road, a way starting from the public
road and passing along the eastern side of the property of
Alukkal Joseph was being used for having access to the
F.A.O. No. 9/2004 : 6 :
property of the 2nd defendant. The said pathway is even
now in existence and it is being used by the plaintiff also.
The plaint C schedule road has been constructed in the year
1990 and the plaintiff has never used the said road. It is a
private road over which the plaintiff has no right. The plea
of dedication as pleaded in the plaint is absolutely false.
5. On the side of the plaintiff, three witnesses were
examined as PWs 1 to 3 of whom PW1 is the plaintiff
himself. PW2 is a neighbour and PW3 is an assignee from
the plaintiff. On the side of the defendants, four witnesses
were examined as DWs 1 to 4 of whom DW1 is the 2nd
defendant. DW2 is a neighbour and DW3 is a witness to
Ext.B2 agreement for sale and DW4 is the Advocate
Commissioner who submitted Ext.C2 report dated
29.11.2000.
6. The learned Munsiff, after trial, as per judgment
and decree dated 28.02.2001 dismissed the suit holding that
the case of the plaintiff was one of dedication and the
F.A.O. No. 9/2004 : 7 :
plaintiff had miserably failed to prove the said case. On
appeal preferred by the plaintiff as A.S. No. 55 of 2001
before the Sub Court, Kattappana, the learned Subordinate
Judge as per the impugned judgment dated 03.07.2003 set
aside the judgment and decree passed by the trial court and
remanded the case to the trial court after holding that even
though two Advocate Commissioners had been deputed by
the trial court, there was not even a sketch or plan enabling
the court to decide the case satisfactorily. The lower
appellate court was also of the view that the case of the
plaintiff was really not dedication, but the formation of the
plaint C schedule road by contributing portions of property
by the adjoining owners and that there was no evidence
before court to show that a portion of the plaintiff’s
property was sold to the 2nd defendant for the specific
purpose of constructing the plaint C schedule road as
contended by the defendants. It is the said order of remand
which is assailed in this appeal by the defendants.
F.A.O. No. 9/2004 : 8 :
7. I heard the counsel appearing on either side.
8. Adv. Shri. K. Lakshminarayan, the learned counsel
appearing for the appellants made the following
submissions before me in support of the appeal:-
It was after a careful analysis of the pleadings and
evidence that the trial court came to the conclusion that the
plaintiff has miserably failed to establish the dedication set
up by him. The suit was only for injunction simplicitor
without any prayer for declaration. The plaintiff examined
as PW1 has admitted that he had sold 14 = cents of his
property to the 2nd defendant. The plaintiff has further
admitted that there is direct access from the plaint A
schedule property to the public road on the north. Hence
the observation in paragraph 15 of the judgment of the
lower appellate court that the plaint A schedule property is
25 feet to the south of the public road leaving a gap in
between the road and the said property, was not justified.
Ext.C2 report of the Advocate Commissioner does not
F.A.O. No. 9/2004 : 9 :
probabalise such a conclusion. It is true that there was no
sketch or plan prepared by the Advocate Commissioner.
But then, that is hardly a reason for remanding the case to
the trial court. As observed by this Court in Sundaresan
Nair v. Dr. Krishnankutty Nair – 2007 (2) KHC 414 as
far as possible, appellate court should avoid a remand
unless it is absolutely essential to protect the interests of
justice and a remand for incorporating a prayer for
declaration in that case was also held unnecessary and
erroneous. The apex court has also observed in India
Army & Police Equipment v. Kanodia Brothers – 1968
KLT SN 19 that in a case where there has already been a
trial on evidence before the court of first instance, the
appellate power of remand should not be exercised merely
because the appellate court is of the view that the parties
who could lead better evidence have failed to do so.
9. I am afraid that I cannot agree with the above
submissions. This is a case arising from Idukki where the
F.A.O. No. 9/2004 : 10 :
legal profession has not attained that much experience or
acumen as could be expected from their counterparts in the
urban courts. When this Court deals with a case arising
from Idukki, this aspect of the matter cannot be lost sight of
and the pleadings have to be approached with some amount
of latitude.
10. Even I was finding it difficult to get an idea about
the lie of the plaint A and B schedule properties and that of
the plaint C schedule road. It appears that the
Murikkassery-Karimban road which is a public road runs
east-west and the land to the south of the said road is
proceeding at a gradient. The plaintiff is residing in a
property situated to the north of the said road. The plaintiff
has two plots of land namely the plaint A and B schedule
properties situated to the south of the said road. Even in
the plaint, it is pleaded that the plaint A schedule property
is situated at a distance of 25 s from the Karimban –
Murikkassery public road. Therefore, the appellate court
F.A.O. No. 9/2004 : 11 :
was fully justified in assuming that in between the public
road and the plaint A schedule property, there is another
property. Hence, even if the plaintiff has admitted that he
has direct access from the plaint A schedule property to the
public road, when no portion of the plaint A schedule
property actually touches the public road the alleged
access, if any, could only be through the property of
somebody else. For a better comprehension of the lie of the
land and the topography of the geographical locations of the
respective properties, it was necessary that the
Commissioner who was deputed by the trial court should
have submitted a plan. Without such a plan, the lower
appellate court was fully justified in observing that it is not
possible to decide the case in a satisfactory manner. I fully
endorse the said view taken by the lower appellate court.
Except pleading that a portion of the property of the
plaintiff was purchased by the defendants and they
constructed the plaint C schedule road for their exclusive
F.A.O. No. 9/2004 : 12 :
use, the document of sale, if any, was not produced before
court. Merely because the plaintiff examined as PW1 has
admitted that he had given a portion of his property to the
defendant, it cannot be said that that is conclusive proof of
transfer and that too for the purpose of constructing the
plaint C schedule road. It is well settled that title cannot
pass by admission.
11. The specific case of the plaintiff is that there was
another pathway in the place of the plaint C schedule road
and the said pathway was widened into an existing road by
the adjoining owners including the plaintiff contributing
portions of their properties free of cost to make the present
road. If the said contention of the plaintiff as pleaded in the
plaint is true, then it is not a case of dedication, as rightly
observed by the lower appellate court. When the materials
before the court were not complete so as to enable the
court to pronounce a satisfactory judgment, the court below
was fully justified in remanding the case to the trial court so
F.A.O. No. 9/2004 : 13 :
as to enable the plaintiff to take out a Commission who will
have to submit a detailed plan showing the lie of the
properties and incorporating matters which are relevant for
the resolution of the controversy between the parties.
Merely because the appellate court has all the powers of the
trial court in view of Section 107 C.P.C., this is not a fit case
where the appellate court should take additional evidence,
including the appointment of a Commission and decide the
matter. The trial court which is more proximate to the
property in question will be in a better position to issue a
Commission and dispose of the suit satisfactorily so that the
parties may also get an opportunity of a forum of appeal
before the lower appellate court. I, therefore, do not find
any good ground to interfere with the conclusions reached
by the lower appellate court as also the remit made by that
court. On the facts and circumstances of the case, I do not
find that the questions of law formulated by the appellant
arise for consideration in this appeal. On the contrary, I am
F.A.O. No. 9/2004 : 14 :
satisfied that no substantial question of law arises in this
appeal which is accordingly dismissed upholding the
remand order passed by the appellate court. The parties
shall appear before the trial court on 03.08.2009 without
any further notice.
Dated this the 7th day of July, 2009.
V. RAMKUMAR, JUDGE.
rv
F.A.O. No. 9/2004 : 15 :