{"id":86851,"date":"2009-07-07T00:00:00","date_gmt":"2009-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/joseph-aged-70-vs-thomas-on-7-july-2009-2"},"modified":"2014-10-02T04:49:54","modified_gmt":"2014-10-01T23:19:54","slug":"joseph-aged-70-vs-thomas-on-7-july-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/joseph-aged-70-vs-thomas-on-7-july-2009-2","title":{"rendered":"Joseph Aged 70 vs Thomas on 7 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Joseph Aged 70 vs Thomas on 7 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nFAO.No. 9 of 2004()\n\n\n1. JOSEPH AGED 70,  S\/O. THOMAS,\n                      ...  Petitioner\n2. LIBISTON AGED 35 YEARS,\n3. MATHEW, AGED 47 YEARS, MUNDIYAMKAL HOUSE\n\n                        Vs\n\n\n\n1. THOMAS S\/O. MATHEW KUZHIKUTHIYANI HOUSE,\n                       ...       Respondent\n\n                For Petitioner  :SRI.N.L.KRISHNAMOORTHY\n\n                For Respondent  :SRI.S.M.PRASANTH\n\nThe Hon'ble MR. Justice V.RAMKUMAR\n\n Dated :07\/07\/2009\n\n O R D E R\n                     V. RAMKUMAR , J.\n          ==========================\n                    F.A.O. No. 9 of 2004\n          ==========================\n             Dated this the 7th day of July, 2009.\n\n                         JUDGMENT\n<\/pre>\n
     Defendants 1 to 3 in O.S. No. 91 of 1999 on the file of<\/p>\n
the Munsiff’s Court, Idukki are the appellants in this appeal<\/p>\n
filed under Order XLIII Rule I(u) C.P.C. The challenge is<\/p>\n
against the order of remand passed by the Sub Court,<\/p>\n
Kattappana in A.S. No. 55 of 2001. The following are the<\/p>\n
questions of law supplied subsequently by means of a<\/p>\n
verified petition as necessitated by the decision in<\/p>\n
Narayanan v. Kumaran<\/a> – 2004 (4) SCC 26:-\n<\/p>\n
        1.When the suit is merely for injunction without
\n          a prayer for declaration whether the question
\n          of title or the origin of right on the pathway
\n          arises for consideration?\n<\/p><\/blockquote>\n
        2.Whether the points for which the remand is
\n          made really arise for consideration in the
\n          suit?\n<\/p><\/blockquote>\n
        3.When admittedly the appellants are using ‘C’
\n          schedule property as the pathway which is
\n          the access to their residence, has not the
\n          Lower Appellate Court gone wrong in casting
\n          the burden on the appellants?\n<\/p><\/blockquote>\n
        4.Whether there are any circumstances coming
\n          under Order XLI Rule 23 and 23A which
\n          would warrant a remand?<\/p><\/blockquote>\n
F.A.O. No. 9\/2004             : 2 :<\/span><\/p>\n
      2. The aforesaid suit filed by the respondent herein<\/p>\n
was one for a perpetual injunction restraining the<\/p>\n
defendants from putting up a gate at the northern end of<\/p>\n
the plaint C schedule road which joints the Murikkassery-<\/p>\n
Karimban road.\n<\/p>\n
      3.     The case of the plaintiff can be summarised as<\/p>\n
follows:-\n<\/p>\n
      The residential property of the plaintiff is situated to<\/p>\n
the north of the        Murikkassery-Karimban road.       The<\/p>\n
petitioner has two other plots of land situated to the south<\/p>\n
of the said      Murikkassery-Karimban road.   They are the<\/p>\n
plaint A and B schedule properties. The plaint A schedule<\/p>\n
property is at a distance of about 25 metres from the said<\/p>\n
road. The plaint B schedule property is further to the south<\/p>\n
of the plaint A schedule property and situated at a distance<\/p>\n
of about 50 metres. The plaint B schedule property was<\/p>\n
obtained by the petitioner about 33 years prior to the<\/p>\n
institution of the suit.    Both plaint A and B schedule<\/p>\n
F.A.O. No. 9\/2004             : 3 :<\/span><\/p>\n
properties are non-patta lands which have been fully<\/p>\n
cultivated by the plaintiff who is appropriating the income<\/p>\n
therefrom by keeping exclusive possession and enjoyment<\/p>\n
of the same. There was an old pathway about 3 feet wide<\/p>\n
starting from     Murikkassery-Karimban public road and<\/p>\n
proceeding southwards.       About 10 years prior to the<\/p>\n
institution of the suit, the said pathway was widened to a<\/p>\n
motorable road having a width of about 10 feet. The said<\/p>\n
road was constructed by utilising the portions of the plaint<\/p>\n
A and B schedule properties. Likewise, the defendants and<\/p>\n
other property owners on either side of the road had also<\/p>\n
contributed portions of their properties for the formation of<\/p>\n
the road. The plaint C schedule is the road, thus, formed.<\/p>\n
It is by way of dedication that the plaint C schedule road<\/p>\n
was formed. Except the plaint C schedule road, there is no<\/p>\n
motorable road to the plaint A and B schedule properties.<\/p>\n
The defendants are also using the plaint C schedule road for<\/p>\n
having access to their house. The properties are comprised<\/p>\n
F.A.O. No. 9\/2004             : 4 :<\/span><\/p>\n
in Survey No. 1\/1 of Upputhode village. On 16.04.1999, at<\/p>\n
about 10 a.m., the defendants came to the plaint C schedule<\/p>\n
road with some workers for digging ditches for the<\/p>\n
construction of concrete pillars for installing a gate at the<\/p>\n
northern end of the plaint C schedule road. Even though<\/p>\n
the said attempt was foiled by the timely intervention of the<\/p>\n
plaintiff, the plaintiff apprehends that the defendants will<\/p>\n
translate their intention into action. Hence the suit.<\/p>\n
      4.      The suit was resisted by defendants 1 to 3<\/p>\n
contending inter alia as follows:-\n<\/p>\n
      The suit is not maintainable. The plaintiff has to prove<\/p>\n
the extent of A and B schedule properties. The plaint C<\/p>\n
schedule road is lying at a lower level than the plaint A<\/p>\n
schedule property and there is no entrance from the said<\/p>\n
road either to the plaint A schedule property or to the plaint<\/p>\n
B schedule property.      No portion of the plaint A and B<\/p>\n
schedule properties has been used for the construction of<\/p>\n
the plaint C schedule road.        The plaintiff is not having<\/p>\n
F.A.O. No. 9\/2004            : 5 :<\/span><\/p>\n
possession of the entire plaint A schedule property. In the<\/p>\n
year 1988, the 2nd defendant had purchased 14.50 cents of<\/p>\n
property from the plaintiff for the construction of a<\/p>\n
motorable road for the use of the 2nd defendant. The plaint<\/p>\n
C schedule property was, thus, constructed by utilising the<\/p>\n
portions of the said 14 = cents of land. The remaining<\/p>\n
extent of the said property is still under the possession of<\/p>\n
the 2nd defendant.     The plaint B schedule property is<\/p>\n
situated about 10 s away from the plaint A schedule<\/p>\n
property. The plaint C schedule road at the place of the<\/p>\n
plaint B schedule property has been constructed entirely<\/p>\n
through the property of the 3rd defendant.       The plaint<\/p>\n
allegation that there was a three feet wide pathway in<\/p>\n
existence and the same was widened to form the plaint C<\/p>\n
schedule road is absolutely false. Prior to the construction<\/p>\n
of the plaint C schedule road, a way starting from the public<\/p>\n
road and passing along the eastern side of the property of<\/p>\n
Alukkal Joseph was being used for having access to the<\/p>\n
F.A.O. No. 9\/2004            : 6 :<\/span><\/p>\n
property of the 2nd defendant. The said pathway is even<\/p>\n
now in existence and it is being used by the plaintiff also.<\/p>\n
The plaint C schedule road has been constructed in the year<\/p>\n
1990 and the plaintiff has never used the said road. It is a<\/p>\n
private road over which the plaintiff has no right. The plea<\/p>\n
of dedication as pleaded in the plaint is absolutely false.<\/p>\n
      5. On the side of the plaintiff, three witnesses were<\/p>\n
examined as PWs 1 to 3 of whom PW1 is the plaintiff<\/p>\n
himself. PW2 is a neighbour and PW3 is an assignee from<\/p>\n
the plaintiff. On the side of the defendants, four witnesses<\/p>\n
were examined as DWs 1 to 4 of whom DW1 is the 2nd<\/p>\n
defendant. DW2 is a neighbour and DW3 is a witness to<\/p>\n
Ext.B2 agreement for sale and DW4 is the Advocate<\/p>\n
Commissioner      who   submitted    Ext.C2    report    dated<\/p>\n
29.11.2000.\n<\/p>\n
      6. The learned Munsiff, after trial, as per judgment<\/p>\n
and decree dated 28.02.2001 dismissed the suit holding that<\/p>\n
the case of the plaintiff was one of dedication and the<\/p>\n
F.A.O. No. 9\/2004            : 7 :<\/span><\/p>\n
plaintiff had miserably failed to prove the said case. On<\/p>\n
appeal preferred by the plaintiff as A.S. No. 55 of 2001<\/p>\n
before the Sub Court, Kattappana, the learned Subordinate<\/p>\n
Judge as per the impugned judgment dated 03.07.2003 set<\/p>\n
aside the judgment and decree passed by the trial court and<\/p>\n
remanded the case to the trial court after holding that even<\/p>\n
though two Advocate Commissioners had been deputed by<\/p>\n
the trial court, there was not even a sketch or plan enabling<\/p>\n
the court to decide the case satisfactorily.      The lower<\/p>\n
appellate court was also of the view that the case of the<\/p>\n
plaintiff was really not dedication, but the formation of the<\/p>\n
plaint C schedule road by contributing portions of property<\/p>\n
by the adjoining owners and that there was no evidence<\/p>\n
before court to show that a portion of the plaintiff’s<\/p>\n
property was sold to the 2nd defendant for the specific<\/p>\n
purpose of constructing the plaint C schedule road as<\/p>\n
contended by the defendants. It is the said order of remand<\/p>\n
which is assailed in this appeal by the defendants.<\/p>\n
F.A.O. No. 9\/2004             : 8 :<\/span><\/p>\n
      7. I heard the counsel appearing on either side.<\/p>\n
      8. Adv. Shri. K. Lakshminarayan, the learned counsel<\/p>\n
appearing        for the   appellants  made    the   following<\/p>\n
submissions before me in support of the appeal:-<\/p>\n
      It was after a careful analysis of the pleadings and<\/p>\n
evidence that the trial court came to the conclusion that the<\/p>\n
plaintiff has miserably failed to establish the dedication set<\/p>\n
up by him.        The suit was only for injunction simplicitor<\/p>\n
without any prayer for declaration. The plaintiff examined<\/p>\n
as PW1 has admitted that he had sold 14 = cents of his<\/p>\n
property to the 2nd defendant.       The plaintiff has further<\/p>\n
admitted that there is direct access from the plaint A<\/p>\n
schedule property to the public road on the north. Hence<\/p>\n
the observation in paragraph 15 of the judgment of the<\/p>\n
lower appellate court that the plaint A schedule property is<\/p>\n
25 feet to the south of the public road leaving a gap in<\/p>\n
between the road and the said property, was not justified.<\/p>\n
Ext.C2 report of the Advocate Commissioner does not<\/p>\n
F.A.O. No. 9\/2004              : 9 :<\/span><\/p>\n
probabalise such a conclusion. It is true that there was no<\/p>\n
sketch or plan prepared by the Advocate Commissioner.<\/p>\n
But then, that is hardly a reason for remanding the case to<\/p>\n
the trial court. As observed by this Court in Sundaresan<\/p>\n
Nair v. Dr. Krishnankutty Nair<\/a> – 2007 (2) KHC 414 as<\/p>\n
far as possible, appellate court should avoid a remand<\/p>\n
unless it is absolutely essential to protect the interests of<\/p>\n
justice and a remand for incorporating a prayer for<\/p>\n
declaration in that case was also held unnecessary and<\/p>\n
erroneous.       The apex court has also observed in India<\/p>\n
Army & Police Equipment v. Kanodia Brothers – 1968<\/p>\n
KLT SN 19 that in a case where there has already been a<\/p>\n
trial on evidence before the court of first instance, the<\/p>\n
appellate power of remand should not be exercised merely<\/p>\n
because the appellate court is of the view that the parties<\/p>\n
who could lead better evidence have failed to do so.<\/p>\n
      9.     I am afraid that I cannot agree with the above<\/p>\n
submissions. This is a case arising from Idukki where the<\/p>\n
F.A.O. No. 9\/2004            : 10 :<\/span><\/p>\n
legal profession has not attained that much experience or<\/p>\n
acumen as could be expected from their counterparts in the<\/p>\n
urban courts. When this Court deals with a case arising<\/p>\n
from Idukki, this aspect of the matter cannot be lost sight of<\/p>\n
and the pleadings have to be approached with some amount<\/p>\n
of latitude.\n<\/p>\n
      10. Even I was finding it difficult to get an idea about<\/p>\n
the lie of the plaint A and B schedule properties and that of<\/p>\n
the    plaint    C schedule   road.   It  appears    that  the<\/p>\n
Murikkassery-Karimban road which is a public road runs<\/p>\n
east-west and the land to the south of the said road is<\/p>\n
proceeding at a gradient.      The plaintiff is residing in a<\/p>\n
property situated to the north of the said road. The plaintiff<\/p>\n
has two plots of land namely the plaint A and B schedule<\/p>\n
properties situated to the south of the said road. Even in<\/p>\n
the plaint, it is pleaded that the plaint A schedule property<\/p>\n
is situated at a distance of 25 s from the Karimban –<\/p>\n
Murikkassery public road. Therefore, the appellate court<\/p>\n
F.A.O. No. 9\/2004              : 11 :<\/span><\/p>\n
was fully justified in assuming that in between the public<\/p>\n
road and the plaint A schedule property, there is another<\/p>\n
property. Hence, even if the plaintiff has admitted that he<\/p>\n
has direct access from the plaint A schedule property to the<\/p>\n
public road, when no portion of the plaint A schedule<\/p>\n
property actually touches the public road the alleged<\/p>\n
access, if any, could only be through the property of<\/p>\n
somebody else. For a better comprehension of the lie of the<\/p>\n
land and the topography of the geographical locations of the<\/p>\n
respective       properties, it   was  necessary   that     the<\/p>\n
Commissioner who was deputed by the trial court should<\/p>\n
have submitted a plan.       Without such a plan, the lower<\/p>\n
appellate court was fully justified in observing that it is not<\/p>\n
possible to decide the case in a satisfactory manner. I fully<\/p>\n
endorse the said view taken by the lower appellate court.<\/p>\n
Except pleading that a portion of the property of the<\/p>\n
plaintiff was purchased by the defendants and they<\/p>\n
constructed the plaint C schedule road for their exclusive<\/p>\n
F.A.O. No. 9\/2004             : 12 :<\/span><\/p>\n
use, the document of sale, if any, was not produced before<\/p>\n
court. Merely because the plaintiff examined as PW1 has<\/p>\n
admitted that he had given a portion of his property to the<\/p>\n
defendant, it cannot be said that that is conclusive proof of<\/p>\n
transfer and that too for the purpose of constructing the<\/p>\n
plaint C schedule road. It is well settled that title cannot<\/p>\n
pass by admission.\n<\/p>\n
      11. The specific case of the plaintiff is that there was<\/p>\n
another pathway in the place of the plaint C schedule road<\/p>\n
and the said pathway was widened into an existing road by<\/p>\n
the adjoining owners including the plaintiff contributing<\/p>\n
portions of their properties free of cost to make the present<\/p>\n
road. If the said contention of the plaintiff as pleaded in the<\/p>\n
plaint is true, then it is not a case of dedication, as rightly<\/p>\n
observed by the lower appellate court. When the materials<\/p>\n
before the court were not complete so as to enable the<\/p>\n
court to pronounce a satisfactory judgment, the court below<\/p>\n
was fully justified in remanding the case to the trial court so<\/p>\n
F.A.O. No. 9\/2004             : 13 :<\/span><\/p>\n
as to enable the plaintiff to take out a Commission who will<\/p>\n
have to submit a detailed plan showing the lie of the<\/p>\n
properties and incorporating matters which are relevant for<\/p>\n
the resolution of the controversy between the parties.<\/p>\n
Merely because the appellate court has all the powers of the<\/p>\n
trial court in view of Section 107 C.P.C., this is not a fit case<\/p>\n
where the appellate court should take additional evidence,<\/p>\n
including the appointment of a Commission and decide the<\/p>\n
matter.      The trial court which is more proximate to the<\/p>\n
property in question will be in a better position to issue a<\/p>\n
Commission and dispose of the suit satisfactorily so that the<\/p>\n
parties may also get an opportunity of a forum of appeal<\/p>\n
before the lower appellate court. I, therefore, do not find<\/p>\n
any good ground to interfere with the conclusions reached<\/p>\n
by the lower appellate court as also the remit made by that<\/p>\n
court. On the facts and circumstances of the case, I do not<\/p>\n
find that the questions of law formulated by the appellant<\/p>\n
arise for consideration in this appeal. On the contrary, I am<\/p>\n
F.A.O. No. 9\/2004                 : 14 :<\/span><\/p>\n
satisfied that no substantial question of law arises in this<\/p>\n
appeal which is accordingly dismissed upholding the<\/p>\n
remand order passed by the appellate court. The parties<\/p>\n
shall appear before the trial court on 03.08.2009 without<\/p>\n
any further notice.\n<\/p>\n
      Dated this the 7th day of July, 2009.\n<\/p>\n<\/p>\n
                                         V. RAMKUMAR, JUDGE.\n<\/p>\n
rv<\/p>\n
F.A.O. No. 9\/2004    : 15 :<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Joseph Aged 70 vs Thomas on 7 July, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-86851","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nJoseph Aged 70 vs Thomas on 7 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/joseph-aged-70-vs-thomas-on-7-july-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Joseph Aged 70 vs Thomas on 7 July, 2009 - 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