Kerala High Court
Mala Araya Kshetra Samrekshana Samithi vs Akila Thiruvithamcore Mala Araya Maha ... on 6 December, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934
FAO (RO).NO. 348 OF 2012 ()
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AS.89/2010 OF DISTRICT COURT, THODUPUZHA
OS.79/2004 OF SUB COURT,KATTAPPANA
APPELLANTS/RESPONDENTS 1, 2, 4, 6 TO 8/DEFENDANTS 1, 2, 4, 6 TO 8:
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1. MALA ARAYA KSHETRA SAMREKSHANA SAMITHI,
MOOZHIKAL, REGD.NO.364/2002
REPRESENTED BY ITS SECRETARY C.N.SANTHOSH,
AGE4D 40, S/O.NARAYANAN
CHALAPURATH HOUSE, MOOZHIKKAL KARA, MLAPARA VILLAGE
PEERMADE TALUK.
2. K.D.NARAYANAN
S/O.DAMODHARAN, KARUPPATHUSSERIYIL HOUSE, PRESIDENT
MALA ARAYA KSHETRA SAMREKSHANA SAMITHY
MOOZHIKAL KARA, MLAPARA VILLAGE, PEERMADE TALUK.
3. P.N.GOPALAN
S/O.NARAYANAN, PUTHENPARAMBIL HOUSE, PRESIDENT
MALA ARAYA SABHA BRANCH NO.1, MOOZHIKKAL KARA
MLAPARA VILLAGE, KORUTHODU PO, PEERUMEDE TALUK.
4. SHIBU
S/O.NARAYANAN, CHALAPURATH HOUSE, MOOZHIKKAL KARA
MLAPARA VILLAGE, KORUTHODU PO, PEERUMEDE TALUK.
5. PUSHPANGATHAN
S/O.ACHUTHAN, KURUMBANACKAL HOUSE, MOOZHIKKAL KARA
MLAPARA VILLAGE, KORUTHODU P.O., PEERUMEDE TALUK.
6. AKILA MALA ARAYA MAHA SABHA REGD.NO.1423/05
MOOZHIKKAL, REPRESENTED BY ITS SECRETARY,
K.G.GANGADHARAN, PERAKATHU HOUSE,
MOOZHIKKAL KARA, MLAPARA VILLAGE
KORUTHODU P.O., PEERUMEDE TALUK.
BY ADVS.SRI.G.SREEKUMAR (CHELUR)
SRI.RAVI K.PARIYARATH
RESPONDENTS/APPELLANT AND 3RD RESPONDENT/PLAINTIFF AND 3RD DEFENDANT:
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1. AKILA THIRUVITHAMCORE MALA ARAYA MAHA SABA BRANCH NO.25
MOOZHIKKAL, REPRESENTED BY ITS PRESENT SECRETARY
C.G.VIJAYAN, CHILAPARAYIL HOUSE, KORUTHODU P.O.,
MLAPARA VILLAGE, PEERUMEDE TALUK- 686513.
F.A.O(RO) No.348 of 2012
2. MALA ARAYA MAHA SABHA, BRANCH NO.1, MOOZHIKKAL
REPRESENTED BY ITS SECRETARY K.R.KRISHNAN,
S/O.RAGHAVAN, KODUNGAYIL HOUSE,
MOOZHIKKAL KARA, MLAPARA VILLAGE
KORUTHODU PO, PEERUMEDE TALUK - 686513.
BY ADV. SRI.A.C.DEVASIA R1
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY
HEARD ON 06-12-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
THOMAS P. JOSEPH, J.
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F.A.O.(RO). No.348 of 2012
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Dated this the 6th day of December, 2012.
JUDGMENT
This appeal from a first order is from the remand order passed by the learned District Judge, Thodupuzha in A.S.No.89 of 2010.
2. The 1st respondent/plaintiff filed O.S.No.79 of 2004 in the Sub Court, Kattappana for recovery of possession of the suit property on the strength of its previous possession. The 1st respondent claimed that while it was in possession and enjoyment of the suit property, the appellants and the 2nd respondent/2nd defendant dispossessed it on 30.11.2002.
3. The appellants contended that they are in possession of the suit property and that the 1st respondent never had possession of the suit property. They also contended that the finding in Ext.A4, judgment in O.S.Nos.140 of 2002 and 154 of 2002 filed by the contesting parties operated as res judicata in the present suit and the claim made by the 1st respondent regarding its possession prior to Ext.A4, judgment dated 30.10.2003 cannot stand.
4. The trial court found against the claim made by the 1st respondent and dismissed the suit. That was challenged in A.S.No.89 of 2010 of the District Court, Thodupuzha.
FAO (RO) No.348/2012 2
5. In the course of the appeal, the 1st respondent produced certain documents to be received as additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure. The learned District Judge did not admit those documents in evidence, generally referred to the documents and observed that having regard to the facts and circumstances of the case and considering the contentions raised by the parties, the 1st respondent should be given an opportunity to adduce further evidence. Consequently the judgment and decree of the trial court were set aside and the suit was remitted to the trial court for fresh decision. That remand order is under challenge.
6. The learned counsel for the appellants has contended that the 1st appellate court was not right in not relying on Ext.A4, judgment dated 30.10.2003 in O.S.Nos.140 and 154 of 2002 as it operated as res judicata against the claim of possession maid by the 1st respondent. It is contended that certain observations made by the learned District Judge would affect the defence of the appellants in the trial court since those observations indicated that the 1st respondent is in possession of some buildings in the suit property. A further contention the learned counsel has advanced is that in the light of the finding in Ext.A4, judgment there is no scope for adducing any evidence concerning possession claimed by the 1st respondent even prior to Ext.A4, judgment. Lastly it is argued that the suit is filed under Sec.6 of the Specific Relief Act (for short, "the Act") and hence an appeal itself was not maintainable before the learned District Judge.
FAO (RO) No.348/2012 3
7. The 2nd respondent though served remains absent. The 1st respondent appears through counsel.
8. The learned counsel for the 1st respondent submits that the suit is not filed under Sec.6 of the Act so that the bar of appeal would apply. It is further contended that the finding in Ext.A4, judgment is only that the contesting parties therein were not able to establish the possession claimed by them and that would not prevent the 1st respondent from proving the possession it claimed. At any rate, in the absence of better title for the appellants, if the 1st respondent is able to prove its previous possession, it is entitled to recover possession on the strength of such previous possession. It is also submitted that having regard to the facts and circumstances it was only just and proper that the 1st respondent was given an opportunity to adduce further evidence.
9. So far as the contention that the suit being one under Sec.6 of the Act, an appeal itself was not maintainable is concerned, I find myself unable to accept the contention. A suit under Sec.6 of the Act has to be filed within six months from the date of the alleged dispossession. It is of a summary nature where the issue regarding title is not required to be looked into. When the person in possession is dispossessed otherwise than by due process of law even by the true owner, it is open to such persons to bring a suit for possession provided it is brought within six months. In this case the alleged dispossession was on 30.11.2002 and the suit is filed in the year, 2004. Moreover, it is a case where the 1st respondent has sought recovery of possession on the strength of its previous possession. It is a suit under Article 64 of the Limitation Act. FAO (RO) No.348/2012 4 Under Article 64 of the Limitation Act, a person in previous possession of the properties is entitled to bring a suit for recovery of possession on the strength of his previous possession provided that he brings the suit within 12 years of dispossession. Article 65 of the Limitation Act deals with recovery of possession on the strength of title. There, once title is proved, it is for the defendant to show that title of the plaintiff is lost by adverse possession. Here, in the nature of the allegations made in the plaint, it is clear that the suit is based on the previous possession the respondent has claimed over the suit property.
10. The next question is whether Ext.A4, judgment in O.S.Nos.140 and 154 of 2002 would operate as res judicata. Those suits are filed by the contesting parties, each claiming possession of the suit property and praying for prohibitory injunction. The learned Munsiff, Peerumedu by Ext.A4, judgment held that the contesting parties were not able to prove possession claimed by them and consequently disallowed relief of injunction to both the parties.
11. In this case it is true that notwithstanding Ext.A4, judgment dated 30.10.2003, the 1st respondent claims that it was dispossessed on 30.11.2002. What effect the finding entered by the learned Munsiff, Peerumedu in Ext.A4, judgment would have on that plea of the 1st respondent is a matter which the trial court has to decide. The contention raised that Ext.A4 would operate as res judicata is left open for decision by the trial court.
FAO (RO) No.348/2012 5
12. The next question is whether the order of remand passed by the learned District Judge granting liberty to the 1st respondent to adduce evidence should be interfered with? The learned District Judge has referred to this aspect in paragraph 35 of the judgment. It is observed that "the fact that they were in possession of some buildings in the property is evidenced by the commission report, etc". That is followed by a finding that the trial court has not considered the real dispute between the parties and that though the documents produced by the 1st respondent in the appeal cannot be admitted as such in the appeal and acted upon, it is necessary in the ends of justice that the 1st respondent is given opportunity to adduce further evidence. It is accordingly the learned District Judge has directed a remand of the case.
13. It is not as if the first appellate court had no power to order a remand of the case to enable the parties adduce evidence. The question whether the remand is permissible or not depends of the facts and circumstances of each case. In this case, having regard to the contentions raised by the parties and considering the previous litigations, the learned District Judge thought that it is necessary to give the 1st respondent an opportunity to adduce further evidence.
14. But, the observation made by the learned District Judge in paragraph 35 of the judgment which I have quoted above appears to me as unnecessary and unwarranted for the reason that it may give an indication to the FAO (RO) No.348/2012 6 trial court as to the mind of the appellate court on the claim of possession made by the 1st respondent. Therefore, it is necessary that the said observation made by the learned District Judge is expunged.
15. Now that the learned District Judge has remanded the case to the trial court for fresh decision, it follows that all the contesting parties will be entitled to adduce further evidence if any and as provided under law. That, the learned District Judge has given opportunity to the 1st respondent to adduce evidence does not mean that all the documents produced in the first appellate court ipso facto are to be admitted in evidence. That also is a matter which the trial court has to decide having regard to the nature of the documents and the manner of proof it calls for. In the above circumstances, what is required is only to expunge the observation made by the learned District Judge in paragraph 35 of the judgment which I have extracted above.
Resultantly the appeal is allowed in part as under:
While confirming the judgment and decree of the 1st appellate court remanding the case to the trial court for fresh decision, the following directions are issued:
i. The observations made by the learned District Judge in paragraph 35 of the judgment that "the fact that they were in possession of
some buildings in the property is evidenced by the commission report, etc" will stand expunged.
FAO (RO) No.348/2012 7
ii. It is made clear that notwithstanding the observations if any made by the learned District Judge as to the admissibility of the documents produced by the 1st respondent in the appeal, it is for the trial court to decide whether those could be accepted in evidence having regard to the nature of the documents and the manner of proof it calls for.
iii. The question whether Ext.A4, judgment would operate as res judicata on the plea raised by the 1st respondent that it was in possession of the property even prior to Ext.A4, judgment is a matter which the trial court has to decide.
iv. Both sides will get opportunity to adduce further
evidence, if any.
v. Parties shall appear in the trial court on 01.01.2013.
vi. The trial court shall make every endeavour to dispose
of the suit on or before 31.03.2013.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
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