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.
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F.A.O. No. 140 OF 2008
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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