Kerala High Court
P.Anilkumar vs C.Venugopalan Nair on 25 July, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 3RD DAY OF FEBRUARY 2017/14TH MAGHA, 1938
FAO (RO).No. 355 of 2013 ()
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AGAINST THE JUDGMENT IN AS no.82/2008 of principal sub judge,
THIRUVAnanthapuram DATED 25.07.2013
AGAINST THE JUDGMENT IN OS NO.281/2006 IN THE COURT OF PRINCIPAL
MUNSIFF, THIRUVANANTHAPURAM DATED 28.07.2008
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APPELLANT(S)/REPONDENT/DEFENDANT:
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P.ANILKUMAR, AGED 39 YEARS,
S/O PARAMESWARAN NAIR, SOUPARNIKA,
CHEMPAZHANTHY, ULIYAZHATHURA VILLAGE,
THIRUVANANTHAPURAM
BY ADVS.SRI.R.LAKSHMI NARAYAN
SMT.R.RANJINI
RESPONDENT(S)/APPELLANTS/ PLAINTIFFS:
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1. C.VENUGOPALAN NAIR, AGED 58 YEARS,
S/O CHELLAPPAN PILLAI, ANJALI BHAVAN,
KUTTIKKADU, KATTAYIKONAM P.O.,
AYIROORPARA VILLAGE, THIRUVANANTHAPURAM,
PIN-695584.
2. L. RADHAMMA, AGED 69 YEARS,
W/O SUKUMARAN NAIR, ANJALI BHAVAN,
KUTTIKKADU, KATTAYIKONAM P.O.,
AYIROORPARA VILLAGE, THIRUVANANTHAPURAM,
PIN-695584.
3. VALSALAKUMARI, AGED 45 YEARS,
D/O RADHAMMA, ANJALI BHAVAN,
KUTTIKKADU, KATTAYIKONAM P.O.,
AYIROORPARA VILLAGE, THIRUVANANTHAPURAM,
PIN-695584.
4. MOHANAN NAIR, AGED 55 YEARS,
ASWATHY BHAVAN, KUTTIKADU,
KATTAYIKONAM P.O., AYIROORPARA VILLAGE,
THIRUVANANTHAPURAM, PIN-695584.
R1-R4 BY ADV. SRI.M.RAJAGOPALAN NAIR
R1-R4 BY ADV. SRI.G.BIJU
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN
FINALLY HEARD ON 03-02-2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
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F.A.O. (R.O.) No.355 of 2013
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Dated this the 3rd day of February, 2017
J U D G M E N T
This appeal is preferred against the judgment in A.S. No.82 of 2008 of the Principal Sub Judge, Thiruvananthapuram. The plaintiffs filed the suit for declaration of easement by prescription and prohibitory injunction. The learned Munsiff dismissed the suit with cost to the defendant. Against that, the plaintiffs preferred the above appeal and the learned District Judge remanded the case to the lower court for fresh disposal with a direction to the lower court to amend the plaint and allowed the defendants to file additional written statement in the amended plaint.
2. The case of the plaintiffs in the trial court is that the 1st plaintiff obtained plaint A schedule property by virtue of Ext.A1 sale deed on 10.07.1986. Plaintiffs 2 to 4 are the nearby owners of the plaint A schedule property. B schedule pathway is the only way to the plaint A schedule property which is originating from a F.A.O. (R.O.) No.355 of 2013 2 Panchayath road on the eastern and southern side of the defendant's property which has a width of 1.5 metrs and length of 26 metres. The predecessors of the 1st plaintiff is using the way for 50 years and thereafter the 1st plaintiff is using the pathway for his travel from 10.07.1986 onwards. The other plaintiffs are using the B schedule pathway, and plaintiffs 1 to 4 perfected their prescriptive right of easement in plaint B schedule pathway. Recently, the defendant attempted to close this pathway, approached the Revenue Divisional Officer and also made complaint before the local Panchayath. The defendant is highly influential, hence the Suit for declaration and consequential injunction.
3. The defendant resisted the suit by filing a written statement and contended that there is no pathway as described as B schedule. The plaintiffs have no right over the defendant's property and they approached the court suppressing the material facts. The properties of the plaintiffs 2 to 4 are not scheduled in the plaint, which is also a suppression of facts and the F.A.O. (R.O.) No.355 of 2013 3 plaintiffs are using a separate pathway for their journey. The plaintiffs recently attempted to tamper with the boundaries of the property, demolish a portion of it and thereafter approached the court and hence they are not entitled to get any relief as claimed.
4. Both parties adduced oral and documentary evidence in the trial court. The plaintiffs' evidence consists of oral testimony of PW1 and documentary evidence, Exts.A1 to A5. Defendant's evidence consists of oral testimony of DW1 and documentary evidence, Exts.B1 and B2. Court exhibits were marked as Exts.C1 and C2. The learned Munsiff dismissed the suit with cost. Against that, they preferred the appeal where the appellate court remanded the matter to the trial court with a direction to make necessary amendments in the plaint with liberty to file additional written statement, if any. Being aggrieved by that, defendant preferred this appeal.
5. Learned counsel appearing for the appellant contended that there is no specific averment in the plaint F.A.O. (R.O.) No.355 of 2013 4 or in the statement of the witnesses showing that the plaintiff used the way as of right for 20 years. The appellate court remanded the matter and directed to amend the schedule in the plaint, which is not in accordance with law. There is no finding that retrial is necessary for determining the real issue. Therefore, setting aside of the judgment of the trial court and remand order with a direction for amendment is illegal.
6. Learned counsel appearing for the respondents contended that both courts have confused the identity of the plaint B schedule pathway even after taking two commission. If the appellate court feels any difference in the identity, it is necessary to find out the actual identity before remanding the matter for fresh decision.
7. Plaintiffs filed the suit for declaration of their right of easement by prescription. For the acquisition of a right by prescription, he has to plead and establish that plaintiffs have been using the B schedule pathway as of right peacefully and openly and without any interruption F.A.O. (R.O.) No.355 of 2013 5 for the past 20 years. Specific evidence is necessary for this and the date of commencement of the right and continuation of the right for the period of 20 years has to be proved. In the trial court, 1st plaintiff was examined as PW1 and his documents were marked as Exts.A1 to A5. Ext.A1 is the sale deed, Ext.A2 is the tax receipt, Ext.A3 is the report from the Village Officer, Ext.A4 is the report of the R.D.O. and Ext.A5 is the report from the Grama Panchayath. If PW1 claims easement by prescription, it is his duty to make averment in the plaint with regard to the necessity of the use of the pathway as of right as stated under Sec.15 of the Easement Act, 1982.
8. In Phoolchand Narayandas and another v. Murarilal Nathulal [AIR (38) 1951 Madhya Bharat 89] it was held that:
" Section 15 of the Indian Easements Act lays down that where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right F.A.O. (R.O.) No.355 of 2013 6 shall be absolute. Before, therefore, a right of way can be acquired as an easement it is necessary to prove that (1) there has been an actual enjoyment of the right; (2) that the enjoyment has been open; (3) that the enjoyment has been peaceable; (4) that the enjoyment has been as of right; (5) that it has been enjoyment as an easement; (6) that it has been enjoyed without interruption and that (7) it has been enjoyed for twenty years. Unless all these ingredients are proved no right of easement can accrue to the owner of a dominant heritage. "
9. In Justiniano Antao and Others V. Bernadette B. Pereira (Smt) [(2005) 1 Supreme Court Cases 471] apex court held that:
In order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.
In the evidence of PW1, it is stated that he was using the F.A.O. (R.O.) No.355 of 2013 7 pathway from 10.07.1986. Moreover, the predecessors are using the pathway for 15 years. The defendant was examined as DW1 and his documents were marked as Exts.B1 and B2. The Trial Court relied the Commission reports Ext.C1 and C2. Nothing was stated by the appellate court with regard to the identity and the use of the pathway and his right. The appellate court neither verified such evidence nor made any observation with regard to the establishment of a prescriptive right of easement as claimed by the plaintiffs.
10. Now the question to be decided in this appeal is whether the order of remand by the appellate court is sustainable in law. Order XLI Rule 23, Rule 23(A) and Rule 25 of the Code of Civil Procedure reads as follows:
Remand of case by Appellate Court.-
Where the Court from whose 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 F.A.O. (R.O.) No.355 of 2013 8 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 direction to re-admit 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 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.
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal F.A.O. (R.O.) No.355 of 2013 9 is preferred, and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].
11. Apex Court in P. Purushotham Reddy and Another v. Prathab Steels Ltd. [AIR 2002 (2) SCC 686] held that:
10. The next question to be examined is the legality and propriety of the Order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits.
However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and F.A.O. (R.O.) No.355 of 2013 10 having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre- eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial 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. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR at p.399), it is well settled that inherent powers can be availed of ex F.A.O. (R.O.) No.355 of 2013 11 debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 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 valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.
12. Apex Court in Municipal Corporation Hyderabad v. Sunder Singh [ AIR 2008 (8) SCC 485] held that;
11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the F.A.O. (R.O.) No.355 of 2013 12 entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.
13. Before insertion of Rule 23A in Order XLI of the Code of Civil Procedure by CPC amendment Act in the year 1976 there were only two provisions permitting the court to remand by a court of appeal in Order XLI CPC. When trial court disposes of the suit by recording its finding on a preliminary issue and the finding on the preliminary issue is reversed, Rule 23 of Order XLI will apply. It is the settled principle that the Court should exercise its power in terms of Order XLI Rule 23 of C.P.C. on an order of remand, not in a routine work. If the appellate court did not agree with the decisions of the trial court, it has to come with proper finding of its own on the basis of available evidence. The appellate court, without considering the law, without giving any reason and without appreciating the documents and oral evidence directed the parties to make necessary F.A.O. (R.O.) No.355 of 2013 13 amendments in the plaint as requested in I.A. No.7048/2009 on payment of cost of Rs.5,000/- and liberty was granted to the defendant to file additional written statement, if any. Therefore, the first appellate court wrongly dealt with the issue and the view taken by the appellate court is based on wrong appreciation of facts. Hence the remand order of the appellate court is set aside and the matter is remitted to the Principal Sub Judge, Thiruvananthapuram for fresh consideration on merit. This appeal is allowed with the aforesaid directions.
Sd/-
P.D. RAJAN,
JUDGE
NS / True Copy /
P.A. To Judge