Kerala High Court · 2012

HARUN-UL-RASHID, J.------------------------F.A.O.No.273 Of 2009----------------------Dated this the 28th day of June, 2012.J U D G M E N TThe legal heirs of original 1st plaintiff and the 2nd plaintiff arethe appellants. The appeal is directed against the judgmentdated 26.2.2009 in A.S.No.301/2004 on the file of the AdditionalDistrict Court II, Thiruvananthapuram. The court below set asidethe decree and judgment passed by the trial court and remandedtwo suits for fresh disposal in accordance with law. Aggrieved bythe order of remand in A.S.No.301/2004, the present appeal ispreferred by the plaintiffs. Parties hereinafter are referred to asthe plaintiffs and defendants as arrayed in the suit. 2.Suit was filed by the plaintiffs for declaration of title,possession and for consequential injunction. The sole defendantin O.S.No.22/1998 as plaintiff filed O.S.No.73/2001 for puttingup boundary. Both suits were tried and dismissed by the trialcourt. The appeals preferred against both suits were jointlyheard and disposed of by the impugned judgment.3.The subject matter of the suits is the property havingan extent of 12.870 cents. According to the plaintiffs they are ::2::F.A.O.No.273 Of 2009the absolute owners of the said property which was originallybelonged to one Padmanabha Rao from whom the plaintiffs'father Subbarayalu Reddiar purchased the same as per sale deedNo.3998 dated 29.10.1116 M.E. The plaintiffs' case is that afterthe death of their father, the property devolved on the plaintiffs.A creditor of Padmanabha Rao, by name Venkulekshmi Ammal,filed O.S.No.607/1112 M.E for realisation of money. According toVenkulekshmi Ammal, she got the property as per the decree inO.S.No.617/1112. In execution of the decree inO.S.No.607/1112, the property in dispute was brought to sale.While the property was in the possession of Subbarayalu Reddiarthe said Venkulekshmi Ammal again filed O.S.No.217/1965before the Munsiff Court, Thiruvananthapuram, against theplaintiffs and their father alleging that plaintiffs and their fathertrespassed into the property. The plaintiffs and their fathercontended that though the property was put in auction anddelivery was ordered, no delivery was effected and theycontinued to be in possession of the property in dispute. Therewere also some other suits and all of them were settled by a ::3::F.A.O.No.273 Of 2009compromise entered by the parties in O.S.No.217/1965. Ext.B1is the compromise. According to the plaintiffs, their title andpossession over the plaint schedule property is recognised andacknowledged as per the compromise. The contention of thedefendants is that by the compromise he has retained an extentof 3 cents out of the plaint schedule property and therefore, he isentitled to put up boundary in between the properties held by theparties.4.The trial court dismissed the suit. The lower appellatecourt remanded the case for fresh consideration finding that theproperty in dispute was not identified by the commissioner asdirected by this Court in C.R.P.No.2282/1997. The courtobserved that a direction was issued by this Court in the saidC.R.P to set out a survey commissioner. In the circumstances,the lower appellate court remanded the case to locate therespective properties claimed by the parties based on Ext.B1agreement as well as survey plan for that purpose. 5.The appellants are seriously aggrieved by theobservation of the court in paragraph 9 of the judgment. The ::4::F.A.O.No.273 Of 2009learned counsel submits that when the lower appellate courtopted to remand the case for fresh consideration, it should havebeen an open remand especially when the legality of the order ofthe trial court was not considered by the court. It is pointed outthat the lower appellate court went wrong in passing theobservation that the question of possession cannot be agitated.The court below before deciding the question on merits passedobservations in paragraph 9 that will affect the merit of the caseadvanced by the appellants. 6.I have gone through the relevant observations madein paragraph 9 of the judgment which reads as follows:“It is thereafter, Venkulekshmi Ammal filed thesuit O.S.No.217/65, for recovery of trespassed portion.The above said suit is filed u/s 6 of the Specific ReliefAct which has ended in a decree in terms of the plaint.So it will definitely show the prior possession of theproperty with Venkulekshmi Ammal as the decreepassed for recovery of possession of trespassedportion. If that be so, the question cannot be re-agitated or reopened in a subsequent stage either inbetween the parties or the persons litigating underthem”. ::5::F.A.O.No.273 Of 2009After examining the scope of O.S.No.217/1965, the court belowheld that the question of possession cannot be re-agitated or re-opened in a subsequent stage either in between the parties or thepersons litigating under them and that there is no merit in thecase advanced by the plaintiffs that even though a decree waspassed in respect of plaint schedule property in favour ofVenkulekshmi Ammal, she did not get any possession of theproperty in furtherance of the court sale. The plaintiff isprosecuting the present suit on the allegation that by virtue ofExt.B1 compromise, his possession was recognised andacknowledged by the other side. It is for the court to decideafter remand as to whether the plaintiff in O.S.No.22/98 hasretained the possession of the entire property, whether theirpossession was recognised and acknowledged in the compromisefollowed in O.S.No.217/65 and as to whether the plaintiff in theconnected suit is retaining possession of three cents out of it etc.In the said circumstances, the observations made by the courtregarding the possession before considering the case on merits islikely to prejudice the interest and contention of the appellant. ::6::F.A.O.No.273 Of 2009In fact, such observation is not necessary for the purpose ofremanding the case for fresh consideration. The court set asidethe decree and judgment and directed fresh consideration. In thesaid circumstances, all the issues will have to be re-agitatedbefore the trial court afresh. In the result, the appeal is disposed of directing the trialcourt to dispose of the two suits afresh untrammelled by any ofthe observations in the common judgment dated 26.2.2009 inA.S.Nos.137/04, 301/04 and 137/04. No order as to costs. HARUN-UL-RASHID, Judge.bkn/-