High Court of KeralaSingle Judge2018-09-26Appeals allowed; remand order set aside; matter...

Cherattukundil Sulaikha v. Kanhirampatta Saidalai @ Saidu and Nishad Ali

Case / Petition Number:FAO (RO) Nos.253 & 254 of 2015

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Hariprasad
Judgment Date: 2018-09-26
Court Decision / Holding: Appeals allowed. The order of remand passed by the Court of Subordinate Judge, Manjeri in A.S Nos.60 and 61 of 2014 is set aside. The lower appellate court is directed to dispose of the matter on merits after hearing both sides and to consider the maintainability of the suit. Parties shall appear before the court below on 15-10-2018, and the case shall be disposed of within three months from that date. All pending interlocutory applications will stand closed.
Final Disposition: Appeals allowed; remand order set aside; matter to be decided on merits by lower appellate court; maintainability to be considered.

Parties to the Case

Appellants / Petitioners

Cherattukundil Sulaikha

Respondents

Kanhirampatta Saidalai @ Saidu
Nishad Ali

Legal Representation & Advocates

Counsels for Petitioners

• Sri K. Rakesh

Counsels for Respondents

• Sri P.B. Krishnan
• Sri P.M. Neelakandan
• Sri P.B. Subramanyan
• Sri Sabu George

Case Synopsis & Summary

These FAOs arise from a suit for injunction filed by Cherattukundil Sulaikha against Kanhirampatta Saidalai @ Saidu and Nishad Ali concerning two parcels (A and B schedules) originally belonging to Ulpilapatta Mana and subsequently transferred. The trial court decreed the injunction; on appeal, the Subordinate Judge remanded, holding that issues on title must be resolved for effective adjudication. The High Court, however, after hearing both sides, found the remand order unjustified and set it aside, holding that the question of title was not necessary to grant injunction and that the lower appellate court should decide on the merits after hearing the parties. The court noted that the remand did not rest on sound reasoning and that the frame of the suit and maintainability were in dispute. It cited Kesava Bhat v. Subraya Bhat for principles, while also acknowledging other precedents on maintainability such as Iyakku Mathoo v. Julius Elias Metropolitan and Lakshmi Pillai Parvathi Pillai v. Purushothama Pai as points of reference. Consequently, the High Court allowed the appeals, set aside the remand order, and directed the lower appellate court to decide the matter on merits after hearing both sides, with appearance fixed for 15-10-2018 and a three-month time frame for disposal.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the suit is for injunction simpliciter and does not require adjudication on title. The plaintiffs pleaded two schedules of property derived from Ulpilapatta Mana and subsequently transferred. The trial court decreed the injunction; the defendants appealed and the lower appellate court remanded, ostensibly because issues on title were necessary for effective adjudication. The appellant submits that an injunction suit need not resolve title, that the remand is unjustified and contravenes established principles (as reflected in Kesava Bhat v. Subraya Bhat). The maintainability of the suit and the proper framing of issues are to be determined on pleadings and evidence by the appellate court after hearing both sides; remand should not have been directed merely to address title, and the matter must proceed on merits with consideration of maintainability.

Contentions of Respondents

The respondents contend that the main question relates to maintainability of the suit and its proper framing, given that the plaintiff asserts rights on behalf of her children and the owners of the property have not eo nomine been made parties. They argue that the suit, framed as a suit by a woman on behalf of her children, may be defective and not maintainable without joining the real persons interested. Citing Iyakku Mathoo v. Julius Elias Metropolitan and Lakshmi Pillai Parvathi Pillai v. Purushothama Pai, they submit that the lower court should consider whether the suit is maintainable and properly framed; thus, remand was appropriate to resolve these issues. Ultimately, they urge the appellate court to decide maintainability and the merits after hearing both sides.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Kesava Bhat v. Subraya Bhat	(1979 K.L.T 766 (F.B))	Distinguished	The High Court notes that the judgment of the lower court violated principles stated in Kesava Bhat and thus distinguishes it.
Iyakku Mathoo v. Julius Elias Metropolitan	(1961 K.L.T 182)	Mentioned Only	Cited in the context of maintainability; not applied or distinguished in the decision.
Lakshmi Pillai Parvathi Pillai v. Purushothama Pai	(1965 K.L.T 57)	Mentioned Only	Cited in discussing maintainability; treated only as a reference.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** ## **FAO (RO).No. 253 of 2015** **AGAINST THE THE COMMON DATED 02-07-2015 JUDGMENT IN AS 60/2014 of SUB COURT, MANJERI.** **AGAINST THE JUDGMENT AND DECREE IN OS 79/2007 of MUNSIFF COURT, MANJERI DATED 22-02-2012.** ## **APPELLANT/IST RESPONDENT/PLAINTIFF :** **CHERATTUKUNDIL SULAIKHA, W/O.LATE HUSSAIN, AGED 52 YEARS, KANHIRAMPATTA HOUSE, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPURAM DISTRICT** **BY ADV. SRI.K.RAKESH.** ## **RESPONDENTS/APPELLANT & 2ND RESPONDENT/DEFENDANTS:** **1 KANHIRAMPATTA SAIDALAI @ SAIDU, S/O.ALI MOHAMMED, AGED 66 YEARS, ADAKKAKUNDU P O, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - PIN 676 575. 2 NISHAD ALI, S/O.KANJIRAMPATTA SAIDALAVI, AGED 34 YEARS, ADAKKAKUNDU P O, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER,VAKAYIL IBRAHIM, AGED 51 YEARS, S/O.KUNHIMOHAMMED, VAKAYIL HOUSE, EDAPPATTA AMSOM, PATTIKKADE DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT-679 326.** **BY ADVS.SRI.P.B.KRISHNAN FOR R1 R2 BY SRI.P.M.NEELAKANDAN SRI.P.B.KRISHNAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH FAO (RO).254/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O (R.O) Nos.253 & 254 of 2015 - 2 - ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY,THE 26TH DAY OF SEPTEMBER 2018 / 4TH ASWINA, 1940** **FAO (RO).No. 254 of 2015** **AGAINST THE COMMON JUDGMENT DATED 02-07-2015 IN AS 61/2014 of SUB COURT, MANJERI.** **AGAINST THE JUDGMENT AND DECREE IN OS 79/2007 of MUNSIFF COURT, MANJERI DATED 22-02-2012.** ## **APPELLANT/IST RESPONDENT/PLAINTIFF :** **CHERATTUKUNDIL SULAIKHA, W/O LATE HUSSAIN, AGED 52 YEARS, KANHIRAMPATTA HOUSE, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.K.RAKESH.** ## **RESPONDENTS/APPELLANT & 2ND RESPONDENT/DEFENDANTS :** **1 NISHAD ALI, S/O.KANJIRAMPATTA SAIDALAVI, AGED 34 YEARS, ADAKKAKUNDU PO, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER, VAKAYIL IBRAHIM, AGED 51 YEARS, S/O KUNHIMOHAMMED, VAKAYIL HOUSE, EDAPPATTA AMSOM, PATTIKKADE DESOM, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT - PIN 679 326. 2 KANHIRAMPATTA SAIDALAI @ SAIDU,S/O.ALI MOHAMMED, AGED 66 YEARS, ADAKKAKUNDU PO, KALIKAVU AMSOM, THRIKKUNNASSERI DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT - PIN 676 575.** **BY ADVS. R2 BY SRI.P.B.KRISHNAN R1 BY SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN & SRI.SABU GEORGE.** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 26.09.2018, ALONG WITH FAO(RO) NO.253 OF 2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** F.A.O (R.O) Nos.253 & 254 of 2015 - 3 - ## A.HARIPRASAD, J. -------------------------------------- F.A.O (R.O) Nos.253 & 254 of 2015 -------------------------------------Dated this the 26th day of September, 2018 ## C O M M O N J U D G M E N T These appeals are preferred by the plaintiff in O.S No.79 of 2007 before the Court of Munsiff, Manjeri, aggrieved by the order of remand passed by the Court of Subordinate Judge, Manjeri in A.S Nos.60 and 61 of 2014. 2. Short facts are as follows : Suit is one for injunction simplicitor. Plaint A and B schedule properties originally belonged to Ulpilapatta Mana. It was leased out to one Vallikkaparambil Mohammed by a registered lease deed in the year 1947. Mohammed in turn assigned his right over the aforesaid F.A.O (R.O) Nos.253 & 254 of 2015 - 4 - properties in favour of Kanhirampatta Ali Mohammed in the year 1952 by a registered document. Ali Mohammed obtained a purchase certificate for the properties through the Land Tribunal concerned in the year 1976. Ali Mohammed later transferred 25 cents of property in favour of his son Hussain, who is the husband of the plaintiff. That properties are described in plaint A schedule. Ali Mohammed later assigned remaining 10 cents of properties in favour of his grand children by name Afsul Shameem and Abdul Sameeh, who are the children of plaintiff. That properties are described in plaint B schedule. 3. Hussain predeceased his father Ali Mohammed. A fractional right devolved on Ali Mohammed had been assigned to the legal heirs of deceased Hussain. Accordingly, both the properties are in the possession of the assignees. 4. It can be seen from the averments in the plaint that the plaintiff's son Afsul Shameem was working abroad at the time of F.A.O (R.O) Nos.253 & 254 of 2015 - 5 - filing the suit and another son Abdul Sameeh was a minor at the time of filing the suit. The plaintiff therefore preferred the suit for injunction against the defendants alleging that they tried to trespass into the properties. 5. It is contended by the defendants that Ali Mohammed had cancelled the gift deed executed in favour of the legal heirs of deceased Hussain (children of plaintiff) and the property was assigned to the defendant No.2. According to the defendants, the document put forward by the plaintiff was procured by them by influencing the mind of Ali Mohammed and the gift deed never came into effect. Ali Mohammed himself was paying tax for the property and possession was not handed over to the donees. Therefore, the plaintiff has no right or possession over the properties. 6. The trial court examined one witness each on the side of the plaintiff and defendants. Exts.A1 to A9 and Exts.B1 to B8 series are the documents produced and marked by the parties. Exts.C1 to F.A.O (R.O) Nos.253 & 254 of 2015 - 6 - C4 are the commissioner's plans and reports. Exts.X1 and X2 are the third party exhibits. 7. After considering the evidence on record, the trial court decreed the suit. 8. Feeling aggrieved, the defendants 1 and 2 preferred separate appeals before the lower appellate court. Learned Subordinate Judge remanded the case on finding that issue on title is relevant for the effective adjudication of this case. 9. Heard the learned counsel for the appellant and the respondents. 10. It is seen from the judgment of the lower appellate court that in a suit for injunction, without stating any justifiable reason, the court below came to a conclusion that title is relevant in this matter. It is seen that none of the parties has such a case. Further, the reasoning stated by the court below is in violation of the principles of law stated in Kesava Bhat v. Subraya Bhat (1979 K.L.T 766 (F.B)). F.A.O (R.O) Nos.253 & 254 of 2015 - 7 - 11. Learned counsel for the defendants/respondents contended that the main question relating to maintainability of the suit was not considered by the lower appellate court. In fact, the respondents were also not supporting the order of remand. Learned counsel for the respondents contended that the suit was instituted by a lady asserting that the property belongs to her children. Going by the averments in the plaint, the plaintiff has no independent right over the property. It is her case that she instituted the suit for and on behalf of her children, one among them is a minor and the other is working abroad. Learned counsel for the respondents further contended that such a suit cannot be permitted to be maintained in the light of the principles in Iyakku Mathoo v. Julius Elias Metropolitan (1961 K.L.T 182) and (Lakshmi Pillai Parvathi Pillai v. Purushothama Pai (1965 K.L.T 57 ). The owners of the property are not made eo nominee parties. If the suit is dismissed without the real persons having interest in the party array, later they could contend F.A.O (R.O) Nos.253 & 254 of 2015 - 8 - that the decree does not bind them, which will lead to absurd results. It is therefore contended that the frame of the suit is defective. On that point, the lower appellate court has to adjudicate. 12. Learned counsel for the appellant submitted that the court below has considered all these issues and entered a finding that the plaintiff has a right to file the suit. However, that is a question to be decided by the appellate court based on the pleadings and evidence. I do not wish to express any opinion at this stage of the matter. However, it has to be found that the order of remand is completely unjustifiable and has to deprecate. In the result, the appeals are allowed. The order of remand passed by the Court of Subordinate Judge, Manjeri in A.S Nos.60 and 61 of 2014, is hereby set aside. The lower appellate court shall dispose of the matter on merits after hearing both sides. The contention regarding maintainability of the suit also shall be considered by the lower appellate court. F.A.O (R.O) Nos.253 & 254 of 2015 - 9 - Parties shall appear before the court below on 15-10-2018. The court below shall dispose of the case within a period of three months from the date of appearance. All pending interlocutory applications will stand closed. A. HARIPRASAD, JUDGE. amk