& Ors Vs. Kummottummal Kunhi P.P.Amma(D)By Lrs&Ors  Insc 424 (18 July 2006)
Ar. Lakshmanan & Lokeshwar Singh Panta
out of SLP(C) No.13712/2003) Dr. AR . Lakshmanan, J.
Mr. P. Krishnamoorthy, learned Senior Counsel for the appellants and Mr. M.K.S.
Menon, learned counsel for the respondents.
appeal is directed against the final order/judgment dated 12.7.2002 in A.S.
No.624 of 1994 passed by the High Court of Kerala, whereby the High Court,
after setting aside the decree and judgment of the courts below, remanded the
matter back to the trial court for reconsideration. The LRs. of 5th defendant
are the appellants before us. The respondents filed the suit for recovery of
possession on the strength of title of the plaint schedule property from the
possession of defendants 4 to 6 and for partition of the same among the tavazhi
members and also for prohibitory injunction and damages. The defendants
including defendant no.5 resisted the suit contending that the title and
possession of the property is with them and if at all the title of the property
is found to be with the plaintiffs, the same is lost by adverse possession and
limitation. Witnesses were examined on both sides. The contesting defendants
produced about 41 documents showing the derivation of title and possession of
the property with them.
Trial Court holding that the respondents-plaintiffs failed to prove title and
the defendants, the appellants herein, are in continuous and uninterrupted
possession of the suit property, dismissed the suit with costs to the
contesting defendants. On appeal by the plaintiffs, the High Court remanded the
matter back to the Trial Court for reconsideration.
have perused the order passed by the High Court. While remitting the matter,
the High Court has not indicated as to what question of facts and law are
required to be assessed and the circumstances upon which the High Court found
itself unable to decide the matter.
by the order passed by the High Court, the LRs. of 5th defendant preferred the
above appeal in this Court. Mr. P. Krishnamoorthy, learned Senior Counsel,
submitted that the High Court was not justified in remanding the matter back to
the Trial Court for reconsideration with liberty to adduce further evidence
without entering into a finding that the judgment and decree are erroneous and
without considering the case on merit, in view of Order 41, Rule 23A of the
Code of Civil Procedure. He would further submit that the High Court was not
justified in remanding the matter without indicating as to what question of law
and facts are required to be decided and why remand is necessited? Per contra,
Mr. M.K.S. Menon, learned counsel for the respondents, submitted that the order
of remand passed by the High Court is perfectly in order and that the High
Court after satisfying that it is a case whereby the parties are given
sufficient opportunity to adduce evidence, both documentary and oral, and
remanded the matter and therefore no interference is called for with the
judgment passed by the High Court. We are unable to countenance the submissions
made by the learned counsel for the respondents.
Trial Court in paragraph 16 of its judgment held as follow:
from Ext.A1 and A2 which are the copies of adangal registers, no other
documents are produced by the plaintiffs to show that they or their
predecessors have got title to the plaint schedule property. During
cross-examination the 7th plaintiff who is examined as PW.1 stated that the
property originally belonged to Kummottungal tarwad and the tarwad gave it to
the tavazhi of Kalliani Pillari Amma. It is on the basis of this that the jama
was transferred in the name of Kalliani Amma. But he could not state how the tarwad
got right over the property." It is seen from the judgment passed by the
Trial Court that apart from Ext.A1 and A2, which are the copies of adangal
registers, no other documents are produced by the plaintiffs to show that they
or their predecessors have got title to the plaint schedule property. This
apart, the plaintiff was given sufficient opportunity to produce the documents.
In spite of opportunity, no other documents were filed and in the
circumstances, we are of the opinion that the High Court should not have remanded
the matter with liberty to produce documents in order to fill lacuna in the
therefore, set aside the order passed by the High Court and remit the matter to
the High Court for consideration of appeal before it on merits only on the materials
already on record. The High Court will dispose of the appeal without being
influenced by any of the observations made by us in this appeal. The Civil
Appeal stands disposed of with no orders as to costs.