Kerala High Court
Linu Varghese vs George Jacob on 26 May, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
FAO (RO) NO. 3 OF 2024
ARISING OUT OF THE JUDGMENT & DECREE DATED 29.09.2023
IN AS NO.13/2022 OF SUB COURT, CHENGANNUR
ARISING OUT OF THE JUDGMENT & DECREE DATED 04.08.2022 IN
OS NO.198/2020 OF MUNSIFF COURT,CHENGANNUR
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 LINU VARGHESE
AGED 43 YEARS
S/O. LATE V.V. VARUGHESE, VATTAPPARAMBIL
PUTHENVEETTIL HOUSE, PAVUKARA.P.O., PAVUKARA
MURI, KURATTISSERY VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
2 SUSY VARUGHESE ALIAS SOSAMMA VARGHESE
AGED 69 YEARS
W/O. LATE V.V. VARGHESE, VATTAPPARAMBIL
PUTHENVEETTIL HOUSE, PAVUKARA.P.O.,PAVUKARA MURI,
KURATTISSERY VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
3 LEENA VARUGHESE
AGED 46 YEARS
D/O. LATE V.V. VARUGHESE, AALELIL HOUSE,
PRAYIKKARA.P.O., MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT, PIN - 689622
BY ADVS.
LIJU.V.STEPHEN
INDU SUSAN JACOB
P.M.HRIDYA
TAJ K. TOM
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RESPONDENT/APPELLANT/PLAINTIFF:
GEORGE JACOB
AGED 71 YEARS
S/O. LATE V.G.CHACKO, VATTAPPARAMBIL HOUSE,
PAVUKKARA.P.O., PAVUKKARAMURI, KURATTISSERY
VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
BY ADVS.
R.GIREESH VARMA
V.K.NANDAKUMARAN
K.P.SREEKUMAR
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
BEEN FINALLY HEARD ON 26.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 26th day of May, 2025 This appeal is filed challenging the judgment and decree dated 29.09.2023 in A.S.No.13 of 2022 on the files of the Sub Court, Chengannur, which is filed against the judgment and decree dated 04.08.2022 in O.S.No.198 of 2020 of the Munsiff's Court, Chengannur. Appellants herein were the defendants in the said suit and the respondent was the plaintiff therein.
2. Two suits, viz., O.S.No.198 of 2020 and O.S.No.199 of 2020, filed by relatives against each other were considered by the Munsiff Court, Chengannur. The dispute inter alia concerned the width of a pathway. A counterclaim too had been raised in OS No. 198 of 2020. The learned Munsiff dismissed both suits as well as the counterclaim vide common judgment dated 04.08.2022. An appeal, A.S.No.13 of 2022 was filed before the Sub Court, Chengannur challenging the judgment and decree in O.S.No.198 of 2020. No appeal was filed challenging the judgment and decree in O.S.No.199 of 2020 or from the dismissal of the counterclaim in O.S.No.198 of FAO (RO) NO.3/2024 4 2025:KER:35973 2020. The Sub Court, Chengannur, disposed of A.S.No.13 of 2022 remanding the case back to trial court granting opportunity to both sides to adduce fresh evidence. The said judgment in A.S.No.13 of 2022 is challenged in this appeal.
3. O.S.No.198 of 2020 was initially filed for injunction simplicitor. It sought to restrain defendants from reducing the width of item No. 3 pathway and from causing any manner of obstruction to vehicular traffic to the plaint schedule item No.1 property through the plaint schedule Item No.3 pathway. Later it was amended and a comprehensive relief of declaration of easement by grant over plaint schedule item No.3 pathway, to recover item No.4 after removing all obstruction and also to restore plaint schedule item No.3 into its original position from the date of the suit and mandatory injunction were incorporated.
4. Heard Sri.Liju V. Stephen, Advocate on behalf of the appellants (defendants) and Sri.K.P.Sreekumar, Advocate on behalf of the respondent (plaintiff).
5. Before proceeding to consider the respective contentions of the parties, the brief facts as contended by the plaintiff is as FAO (RO) NO.3/2024 5 2025:KER:35973 follows:
Plaintiff as well as the defendants got their respective properties from their predecessors. Their grandfather had executed a registered Will in 1962 which came into effect in 1968. The building situated in the plaint schedule item No.1 is the ancestral house, which was constructed as early as 60 years ago by the grandfather.
As per the Will, the plaint schedule item No.1 was bequeathed to the plaintiff's father. The 1st defendant's father was bequeathed the property on the western and northern side of plaint schedule item No. 1 property. Later, in the year 1995 plaintiff's father executed a settlement deed and thereby plaint schedule item No. 1 vested in the plaintiff. Plaintiff is thus in absolute possession and enjoyment of the plaint schedule item No. 1 property and he is residing in the ancestral house with his family. By virtue of the same settlement deed, Plaintiff was also vested with a paddy field lying on the northern side of the plaint schedule Item No. 1 property. Plaint schedule item No.2 property is owned by the defendants. It is situated on the western side of plaint schedule item No.1. A panchayat road situated on the western side of the plaint schedule FAO (RO) NO.3/2024 6 2025:KER:35973 item No.2 property. From the said Panchayat Road a pathway commences which is lying through the northern side of the entire family property and on the south of the northern paddy field. The said pathway has been used for ingress and egress of heavy vehicles to plaint schedule item No.1 property since the time of the late grandfather itself. The width of the pathway was however not specified in the said Will. It was being used by the plaintiff's predecessor, including grandfather, to reach the building situated in plain schedule item No.1 property. At the time of execution of the Will in 1962, the grandfather had incorporated right over the pathway leading to plaint schedule Item No.1 property towards the western Panchayat road. Said pathway is lying on the northern side of the plaint schedule item No.2 property having an average width of 10 feet and length of approximately 100 feet and was widened to an average 10 to 11 feet through the plaint schedule item No.2 property.
Subsequent to the death of the grandfather, the defendants' father had constructed a boundary wall along the pathway. Thus the pathway mentioned in the Will itself was to augur to the benefit the plaintiff. It is the width of the said pathway which is scheduled as FAO (RO) NO.3/2024 7 2025:KER:35973 plaint schedule item No.3 property, that has now become the subject matter of the suit. The right over the plaint schedule item No.3 pathway was regulated by a grant on the basis of the will deed.
The plaintiff and his predecessors have been using the plaint schedule item No.3 pathway without any obstruction for more than 40 years in continuation of the grant. However, offlate the defendants had been trying to obstruct the plaint schedule item No.3 pathway and the vehicular traffic through the same in spite of the fact that they have their own direct access to the Panchayat road on the western side. They have no manner of right to obstruct the peaceful enjoyment of plaint schedule item No.3 pathway by the plaintiff and his family. Hence the suit was laid praying for relief as mentioned above.
6. In the written statement, filed by the defendants they contended that plaint schedule item No.3 pathway is passing through plaint schedule item No.2 property and that the pathway had only a width of two to three feet and was only a naattuvazhi. Even as per the will of the grand father, the width of the pathway is 3 feet and it does not have a width of 10 or 11 feet as contended by FAO (RO) NO.3/2024 8 2025:KER:35973 the plaintiff. None of the documents including the Will supports the claim of the plaintiff. No vehicles were ever driven through the plaint schedule item No.3 pathway as alleged in the plaint. During the lifetime of the grandfather of the plaintiff and the defendants, plaint schedule item No.3 pathway was never used for taking any vehicles The said pathway was being used to park defendants' tractor and other agricultural implements, and also to store the paddy crops at the time of harvesting. It was the 3 feet wide pathway through plaint schedule item No.2, which was being used by the plaintiff and his father as also by the grandfather earlier. If the plaintiff is permitted to widen the plaint schedule item No.3 pathway, it will cause irreparable hardship to the defendants and inconvenience to their agricultural activities. A counterclaim was also raised by the defendants seeking a permanent prohibitory injunction to restrain the plaintiff from widening the pathway provided through the property and from plying vehicles along the said pathway and from causing any damage to the property of the defendants.
7. During the pendency of the suit, the interim injunction/ status quo that had been granted in the suit was subject matter of FAO (RO) NO.3/2024 9 2025:KER:35973 contention from both sides. While the plaintiff alleged obstruction and putting up of structures by the defendants to reduce the width of the path way as well as obstruction at the bell mouth, the defendants inter alia alleged that on the strength of the injunction/ status quo the plaintiff had for the first time started plying vehicles through the pathway and thereby potentially damaging the boundary of the defendants' property. That due to the interim order, the defendants are not in a position to make cultivation on the Northern portion of the plaint schedule item No 3 which is a paddy field was also alleged. Plaintiff alleged and sought relief for recovery of plaint schedule item No.4 property and restoration of plaint schedule item No. 3 to its original position.
8. After the due amendment and filing of additional written statements, issues were framed in OS 198/2020 and 199/2020 and the parties proceeded to trial. PW1 was examined from the side of the plaintiff and Exts.A3 and A5 were marked. DW1 was examined from the side of the defendants and Ext.B2 was marked. Some documents produced by the parties were marked subject to proof while some other documents were not marked.
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9. After hearing both sides, the learned Munsiff inter alia concluded that there is no dispute between the parties regarding the existence of pathway through plaint schedule item No.2 property and that the only variance was regarding the width of the pathway. It was found that since the claim of the plaintiff is an easement by way of express grant, the plaintiff ought to have produced the will deed. Neither the original will deed nor its certified copy had been produced and the photocopy which had been produced was not legible for which reason it was not admitted in evidence. Holding inter alia that since the easement in the case was by way of an express grant as no document had been produced to prove the same, the plaintiff had failed to prove that he got the right of easement by grant to the property of the defendants to use the pathway as a motorable and hence O.S.No.198 of 2022 filed by the plaintiff was dismissed. It was held that in the absence of the document to prove the same, the plaintiff had not succeeded to prove that the right of vehicular traffic along the plaint schedule item No.3 is implied in the grant. As regards the counter claim and O.S.No.199 of 2020 filed by the defendants the same were also dismissed. FAO (RO) NO.3/2024 11
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10. In the appeal, which was filed only against the judgment in O.S.No.198 of 2020, the First Appellate Court found that neither party had disputed the existence of a pathway and only the width of the pathway was disputed. The First Appellate Court concluded in paragraph 18 as follows :
"18. The survey commission report and plan were marked as Ext.C6 and C6(a). From the said commission reports it can be seen that the survey number of plaint schedule item No.1 property belonging to the plaintiff is 118/8 and the survey No. of plaint schedule item No.2 property through which plaint schedule item No.3 pathway is alleged to be passing through is 118/2. The survey number of defendants northern nilam which is not at all scheduled as a suit property is 118/3. The said commission report made it clear that the disputed pathway having width of 19.5 feet at the starting point and subsequently varied the width from 15 to 7.8 feet is passing through Survey Number 118/2 as well as 118/3 of the defendants property. It probablized the contention of the defendants that the width of the pathway claimed by the plaintiff by making subsequent amendment in the plaint includes the portion of mud bund or the portion of northern nilam. It is also noted that the plaintiff in the plaint does not claim any easement right through the pathway in Survey No.118/3 of the defendants and the said property was not scheduled in the plaint. So the width of the pathway lying in Survey No.118/2 has to be deduced so as to identify the pathway lying in Survey No. 118/3 which is shown as plaint schedule item No.2 property through which easement right by way of grant is claimed. But the Commissioner did not care to identify specifically the length and width of the pathway passing through the plaint schedule item No.2 property. The measurement mentioned at the starting point is not at all FAO (RO) NO.3/2024 12 2025:KER:35973 tally with the finding of the Commissioner that the total width of the starting point of the disputed pathway is 19.5 feet. The commissioner and surveyor were not examined as witness so as to clarify the said contradictions in C6 report and C6 (a) plan. So Ext.C6 series are not sufficient to identify the exact length and width of the disputed pathway passing through plaint schedule item No.2 property. The learned counsel for the plaintiff at the time of hearing stated that they did not get sufficient opportunity to examine the commissioners during trial due to the time limitation prescribed by Hon'ble Appellate Court." (Emphasis supplied)
11.The First Appellate Court thus concluded that the plaintiff should be given an opportunity to take steps to adduce evidence, so as to identify the plaint schedule item No.3 pathway in plaint schedule item No.2 property as the Commissioners did not care to identify the same even though several commission reports were obtained in the said case. It is thus holding that the First Appellate Court allowed the appeal by remanding back the suit alone for fresh disposal.
12. Pursuant to the order in IA No. 3 of 2024 in this FAO, an Advocate Commissioner had been appointed by this court and a report dated 19.06.2024 had been submitted by the Advocate Commissioner. It had been inter alia stated in the said commission FAO (RO) NO.3/2024 13 2025:KER:35973 report that while entering from the Panchayat road from the western side, it could be found that the width of the pathway at the beginning, that is the western end,- the Bellmouth portion, is 4.72 meters, (15.5 feet), and that the pathway is at its widest at this portion. It had been stated in the Advocate Commissioner's report that the pathway starts from the Panchayat Road on the western side and ends at the plaintiff's property with residential building on the east. The pathway is approximately 3.45 meters wide ( that is approx. 11.31 feet) at the eastern end where it meets the plaintiff's gate. The plaint schedule pathway lies in between the defendant's property (nilam) on the north and the defendant's residential property (with house) on the southern side. It has been stated that in fact the plaint schedule pathway is sandwiched in between two properties belonging to the defendants. The report further states that the northern nilam belonging to the defendants lies at a lower level when compared to the plaint schedule pathway. The level difference varies at different places and at some places there is a level difference of almost one metre. It has been reported by the advocate commissioner that there is a clear level difference throughout between the properties. The FAO (RO) NO.3/2024 14 2025:KER:35973 northern end of the plaint schedule pathway is lying in a slanting manner towards the northern nilam of the defendants. It had also been stated in the report that the plaint schedule pathway is an unpaved pathway which is approximately hundred feet long. The current width of the pathway is such that four-wheelers such as car or heavy vehicles cannot ply on the said pathway due to lack of adequate width. The report has stated that the width of the pathway in the middle of the pathway was found to be 2.40 meters (approx. 7.87 feet) from the compound wall on the western side of the pathway to the line of plants and trees found on the eastern end of the pathway. It is relevant to note that the Advocate Commissioner has in her report stated that the exact identification of all the plaint scheduled properties as per title deeds could not be done without the assistance of the surveyor and as such it was not done. Further, it has been stated that the defendant did not make available the will which was the basis for their contention. Thus as per the commission report, the width of the path way is having ranges from 3.45 meters (that is approx. 11.31 feet) at the eastern end, 2.40 meters (approx. 7.87 feet) at the middle of the pathway and 4.72 meters, (15.5 feet) FAO (RO) NO.3/2024 15 2025:KER:35973 at the western end, the Bellmouth portion, 4.72 meters, (15.5 feet). Of Course this has been arrived at with the caveat that the exact identification of all the plaint scheduled properties as per title deeds could not be done without the assistance of the surveyor. However for the limited purpose of this appeal, the Commission report gives some prima facie indicators regarding the width.
13. The learned counsel for the appellant has suggested the following questions of law in this FAO (RO) for consideration:
"a. Whether the Lower Appellate Court erred in allowing the appeal and remanding the case for filing up the lacuna of the plaintiff's case, which is against the provisions of Order 41 Rule 23 of C.P.C.?
b. Whether the lower appellate court ought to have found that in the facts, circumstance and evidence in the case the plaintiff failed to establish that the width of the plaint schedule item Nos.3 and 4 pathway was beyond 3 feet pathway, especially when the fact remains that the width of the 'nattuvazhy' at the time of grant of right of way in the year 1962 was only 3 feet ?
c. Whether the lower appellate court failed to consider the fact that the Will Deed No.2/1962 is an undisputed document and that it was upon the failure of the respondent to prove by cogent evidence that the original width of the plaint schedule pathway was more than 3 feet that the respondent's suit was dismissed, hence whether FAO (RO) NO.3/2024 16 2025:KER:35973 the Lower Appellate Court erred in remanding the case for denova trial for enabling the respondent to adduce an undisputed document ?"
It is the contention of the learned counsel appearing for the appellant (defendant) that the First Appellate Court erred in remanding the matter back. He submits that the court ought to have dismissed the appeal. There was no cause or reason to direct a remand. None of the mandates of Order 41 Rule 23 had been complied with while ordering remand. Reliance has been placed by the counsel on the dictum reported in Sirajudheen v. Zeenath [2023 (2) KHC 577] to contend that the scope of remand in terms of Order 41 Rule 23 is very limited and that an Order for remand cannot be passed on the ipse dixit of the court. Relying on the dictum in Pavizhamma v. Mangalamma [2024 (1) KHC 325] it was contended that in the matter of easement by grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication in either case. It will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in FAO (RO) NO.3/2024 17 2025:KER:35973 whose favour the grant is made. Availability of alternative way also would not defeat the right of easement by grant. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restricts its user subject to any condition, the parties will be governed by those conditions. Anyhow, the scope of the grant could be determined by the terms of the grant between the parties alone. As regards the propriety of the order of remand, pointing to the dictum laid down in P. Purushottam Reddy and another v. M/s.Pratap Steels Ltd. [2002 KHC 1159] the learned counsel contended that an appellate court should be circumspect in ordering a remand when the case is not covered by Order 41 Rule 23 or Rule 23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided. Reliance was also placed on the dictum in Thayyil Gopalan and others v. Thayyil Madhavi and others [2018 (5) KHC 871] and N.K.Mohd. Sulaiman Sahib v. N.C.Mohd. Ismail Saheb and others [1966 KHC 498] in support of the contentions put forth by the learned counsel for the defendants.
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14. Per contra, the learned counsel appearing for the plaintiff (respondent in the F.A.O.) submitted that both the parties claim under the common ancestor. The wording in the Will does not mention the width of the pathway. The word used is vazhi which can only mean way. The term 'vazhi' has been used deliberately and ambiguously, so as to meet the felt necessities of the times. Even though the appellant would contend that it had only 3 feet, there is no material whatsoever to evidence the same and such a width has not been mentioned in the Will document. It has been put forth in evidence that a plaintiff has a car and that he had taken the car through the pathway into his property. It is also brought out in evidence that for his daughters' marriage as well as on the death of his father, vehicles have plied through the way. The substantial evidence shows the use of the vehicle. The learned counsel also relies on the Advocate Commissioner's report appointed by the High Court. He further contends that the Will could have been produced by the defendants as well.The learned counsel vehemently contends that the Will had been produced only for a collateral purpose and so there was no need to produce the original. The learned Munsiff FAO (RO) NO.3/2024 19 2025:KER:35973 erred in concluding that the Will ought to be produced and proved as envisaged under the Evidence Act and the Succession Act. He had further contended that in so far as the counterclaim had not been pursued further, there is a res judicata since it has been abandoned by the defendants. The evidence with respect to the width has been lacking and hence it was valid and proper on the part of the First Appellate Court to direct a remand and the retrial. In support of the remand and regarding the factual aspects noted in the commissioners reports, reliance is placed on the dictum laid down in Chandan Mull Indra Kumar and others v. Chiman Lal Giridhar Das Parekh and another [(1940) 42 Bom LR 387] wherein the principle to be adopted in dealing with Commissioner's report had been quoted as follows:
"Inference with the result of a long and careful local investigation, except upon clearly defined and sufficient grounds, is to be deprecated. It is not safe for a court to act as an expert, and to overrule the elaborate report of a commissioner, whose integrity and carefulness are unquestioned. whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party."
The following reference from the Law of Easements and Licences, B.B. Katiyar, Eleventh Edn. 1993, p. is brought to my notice by the FAO (RO) NO.3/2024 20 2025:KER:35973 learned counsel for the plaintiff:
"Gale in his well-known treatise, Gale on Easements, 1950 edition, pp. 72-73, stated as follows:
It may, however, be shortly stated that, in construing the grant or other instrument whereby the easement is created and the document itself, and that only, can, in the first instance, be looked at to discover the extent and nature of the easement and the other terms of the grant. if, on the face of the document, no doubt arises that the words are used in their primary sense, and if, read in that sense, they are plain and unambiguous, the matter is concluded no further evidence of any kind can be admitted to show that the document does not or was not intended to create the easement in the exact terms of the primary meaning which the words bear but if on the face of the document it appears that the words may be used in some sense other than that which they would naturally bear or if there is some ambiguity or omission apparent in the document itself, then the circumstances existing at the time when the instrument was executed may properly be considered."
The following quotation in the same context was also brought to my notice by the learned counsel:
"Waterpark (Lora) v. Fennel was referred to and applied by the court of appeal in the Sharon Ltd. v. Fennell Ltd. where the question at issue viz., the ascertainment of the dominant tenement to which the right of way was attached in terms of the grant really turned upon the true construction of the grant. The words employed therein not being clear and definite as to the real intention of the parties at the time of the grant. The decision of the full court was that, as the relevant words of the conveyance were not clear in their meaning, the court was entitled to consider the surrounding circumstances and as part of them, evidence was admissible that the purchasers under the conveyance, the plaintiffs had certain plans for the use of the land conveyed which were communicated to the FAO (RO) NO.3/2024 21 2025:KER:35973 vendor before the conveyance."
My attention is also invited to the dictum laid down in Madhavan Pillai v. Ebrahim [1964 KHC 92]; Damayanthi v. Theyyam & Ors. [1979 KHC 25]; Tikaram v. Besru [AIR Online 2024 HP 958].
15. I have heard both sides in detail and have considered the contention put forth. The precedents relied on by both sides were also pursued. Since the challenge put forth is against an order of remand by the first appellate court, it is relevant to remind myself of Order 41 Rule 23 and 23 A which read as follows :
"23. Remand of case by appellate court : - Where the court from those decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, which directions to readmit the suit under its original number in the register of civil suits and proceed to determine the suit ; and the evidence (if any) recorded during the original trial shall subject to all just exceptions be evidence during the trial after remand.
23A:- Remand in other cases :- Where the court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23." "
While explaining the scope of Rules 23 and 23-A of Order 41 CPC, FAO (RO) NO.3/2024 22 2025:KER:35973 in Municipal Corporation, Hyderabad v. Sunder Singh [(2008) 8 SCC 485] the Hon'ble Supreme Court has observed as under: -
"32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.
34. An order of remand cannot be passed on ipse dixit of the court......" (Emphasis added) In P. Purushottam Reddy (supra) it has been held that if the superior court finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required under Order 20 Rule 3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect the valuable rights of the parties. With the amendment in 1976, Rule 23A has been inserted in Order 41, which provides for a remand by an appellate court hearing an appeal against a decree if twin conditions are met. (i) The trial FAO (RO) NO.3/2024 23 2025:KER:35973 court disposed of the case otherwise than on a preliminary point and
(ii) The decree is reversed in appeal and a retrial is considered necessary.
In Sanjay Kumar Singh v. State of Jharkhand [(2022) 7 SCC 247] in the context of additional evidence, the Hon'ble Supreme court held as follows:
"7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 15 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
8. As observed and held by this Court in A. Andisamy Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713], the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court FAO (RO) NO.3/2024 24 2025:KER:35973 requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." (Emphasis added) In Sirajudheen (supra) this court had in the context of remand and additional evidence sought to be adduced, held that the admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause.
16. As could be culled out from the precedents above, the true test therefore is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. I find merit in the finding of the learned Sub Judge that though the original will had not been produced before the trial court and the plaintiff could not prove the same by examining attesting witness to the Will deed, the same FAO (RO) NO.3/2024 25 2025:KER:35973 cannot be considered as a patent defect so as to dismiss the suit. The most clinching aspect in this respect in the case at hand is that the easement by grant over the plaint schedule item No. 3 pathway on the strength of the will was an admitted fact. The Sub court was correct in concluding that an admitted fact need not be proved. Hence in the facts and circumstances as stood admitted, the trial court ought not have concluded that the plaintiff failed to adduce the will so as to prove his easement by grant. It is also relevant to note that the defendants had also admitted that the width of the plaint schedule item No.3 pathway was not mentioned in the Will deed. I find merit in the conclusion arrived at by the First Appellate Court that in such a factual scenario, the trial court ought to have found that the suit is for declaration of right of easement by grant over plaint schedule item No. 3 pathway and for recovering its portion and for mandatory injunction as well as prohibitory injunction and hence the plaintiff ought to have been given an opportunity to take steps to adduce evidence so as to identify the plaint schedule item No.3 pathway in plaint schedule item No. 2 property especially since the advocate commissioners had not cared to identify the same. The FAO (RO) NO.3/2024 26 2025:KER:35973 commissioner and the surveyor had not been examined as witnesses so as to clarify the contradictions in the commission reports and the plan. The same are not sufficient to identify the exact length and width of the disputed pathway passing through the plaint schedule item No 2 property. That the plaintiff at the time of hearing also did not get sufficient opportunity to examine the advocate commissioners during trial due to the time limitation was also taken note of by the first appellate court. The First appellate court has thus reversed the decree and have arrived at a finding that a retrial was necessary. Failure to consider an issue of non-joinder of a necessary party was also noted by the first appellate court. Upon these, I reckon that a valid circumstance existed for invoking the jurisdiction under Order 41 Rule 23 A of the Code. In the above discussed facts and circumstances, the remand is valid and proper and meets the test as laid down in Sirajudheen (supra). Further as held in Pavizhamma (supra) the scope of the grant could be determined by the terms of the grant between the parties alone. The Will and its terms thus assume relevance. The remand for the reasons stated elaborately by the Sub court in the judgment under appeal cannot FAO (RO) NO.3/2024 27 2025:KER:35973 thus be said to be out of place or unnecessary. As noted in P. Purushottam Reddy (supra) the mandates of Order 41 Rule 23A are very clear. The twin mandates have been met in the case of the plaintiff, so as to justify a remand.
17. In the facts and circumstances revealed, it cannot be termed that the remand was for filing up the lacuna of the plaintiff's case as alleged by the defendants. The remand allowed is valid and falls within the ambit of law. The first Appellate Court had correctly allowed the appeal and had remanded the case. As regards the factual questions concerning the evidence regarding the width of the plaint schedule item Nos.3 and 4 the same are to be left open to be decided by the trial court in remand after the tendering of fresh evidence. The questions suggested for consideration in this FAO (RO) are thus answered in terms above.
In view of the above discussion, there is no reason to interfere with the judgment and decree dated 29.09.2023 in A.S.No.13 of 2022 of the Sub Court, Chengannur. The FAO (RO) fails and it is only to be dismissed. It is clarified that none of the factual observations made herein above, including the measurements prima FAO (RO) NO.3/2024 28 2025:KER:35973 facie arrived at by the Advocate Commissioner in the report submitted to this court shall bind, preclude or stand in the way of the trial court appreciating the matter afresh on evidence and in arriving at due conclusions based on the same, as directed in the judgment and decree dated 29.09.2023 in A.S.No.13 of 2022 of the Sub Court, Chengannur .
FAO (RO) dismissed. No costs.
Sd/-
SYAM KUMAR V.M. JUDGE csl FAO (RO) NO.3/2024 29 2025:KER:35973 APPENDIX OF FAO (RO) 3/2024 RESPONDENT ANNEXURES Annexure R1 CERTIFIED COPY OF THE PLAINT IN THE SUIT Annexure R2 CERTIFIED COPY OF THE COMMISSION REPORT FILED BY THE COMMISSIONER WHO VISITED THE PROPERTY IMMEDIATELY AFTER THE FILING OF THE SUIT DATED 13-4-2012 Annexure R3 CERTIFIED COPY OF THE COMMISSION REPORT AS PER IA 2/2020 DATED 30-9-2020 Annexure R4(a) TRUE COPY OF THE PHOTOGRAPH TAKEN EARLIER SHOWING THE ORIGINAL CONDITION OF THE WAY BEFORE COMMITTING WASTE BY THE DEFENDANT Annexure R4(b) TRUE COPY OF THE PHOTOGRAPH TAKEN EARLIER SHOWING THE ORIGINAL CONDITION OF THE WAY BEFORE COMMITTING WASTE BY THE DEFENDANT Annexure R4(c) TRUE COPY OF THE PHOTOGRAPH TAKEN EARLIER SHOWING THE ORIGINAL CONDITION OF THE WAY BEFORE COMMITTING WASTE BY THE DEFENDANT Annexure R5(a) TRUE COPY OF THE PHOTOGRAPH TAKEN RECENTLY SHOWING THE DEPLORABLE CONDITION OF THE SCHEDULED WAY Annexure R5(b) TRUE COPY OF THE PHOTOGRAPH TAKEN RECENTLY SHOWING THE DEPLORABLE CONDITION OF THE SCHEDULED WAY Annexure R5(c) TRUE COPY OF THE PHOTOGRAPH TAKEN RECENTLY SHOWING THE DEPLORABLE CONDITION OF THE SCHEDULED WAY PETITIONER ANNEXURES FAO (RO) NO.3/2024 30 2025:KER:35973 Annexure A1 A TRUE COPY OF THE REPRESENTATION DATED 08/02/2019 MADE BY THE APPLICANT TO THE R.D.O, CHENGANNUR Annexure A2 A TRUE COPY OF THE DOCUMENTS RECEIVED UNDER RTI DATED 13.08.2024 Annexure A3 A TRUE COPY OF THE PHOTOGRAPHS OF THE PLAINT SCHEDULE ITEM NO.1 PROPERTY