Full Judgment Text
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CASE NO.:
Appeal (civil) 3023 of 2006
PETITIONER:
HAMEED (D) BY LRS. & ORS.
RESPONDENT:
KUMMOTTUMMAL KUNHI P.P.AMMA(D)BY LRS&ORS
DATE OF JUDGMENT: 18/07/2006
BENCH:
Dr. AR. LAKSHMANAN & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(arising out of SLP(C) No.13712/2003)
Dr. AR . Lakshmanan, J.
Delay condoned.
Leave granted.
Heard Mr. P. Krishnamoorthy, learned Senior Counsel for the appellants
and Mr. M.K.S. Menon, learned counsel for the respondents.
This 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.
The 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.
We 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.
Aggrieved 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
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the High Court. We are unable to countenance the submissions
made by the learned counsel for the respondents.
The Trial Court in paragraph 16 of its judgment held as follow:
"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. 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 evidence.
We, 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.