## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A.HARIPRASAD**
**TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940**
## **FAO (RO).No. 156 of 2017**
**AGAINST THE JUDGMENT (REMAND ORDER) DATED 22-08-2017 IN AS NO. 225/2015 of III ADDITIONAL DISTRICT COURT, PALAKKAD**
**AGAINST THE JUDGMENT AND DECREE DATED 29-10-2015 IN OS NO.18/2012 of SUB COURT, OTTAPPALAM**
**- APPELLANT IN F.A.O. APPELLANT IN A.S./DEFENDANT IN O.S.:**
**K.G.BABU,AGED 47, S/O GOPALAN NAIR, RESIDING AT 'POURNAMI', ARIYOOR AMSOM & DESOM, MANNARKKAD TALUK, PALAKKAD DISTRICT - PIN 678582.**
**BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANIAN SRI.SABU GEORGE SRI.S.NITHIN**
**- RESPONDENT IN F.A.O. RESPONDENT IN A.S./PLAINTIFF IN O.S.:**
**K.O. KOSHI,AGED 54, S/O.KALATHINGAL THOMAS UNNOONNI, THACHANATTUKARA AMSOM & DESOM, MANNARKAD TALUK, PALAKKAD DISTRICT - PIN 678582.**
**BY ADV. SRI.RAJESH SIVARAMANKUTTY**
**THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 26.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **A.HARIPRASAD, J.**
## **-------------------------------------F.A.O. (R.O.) No.156 of 2017 -------------------------------------Dated this the 26[th] day of February, 2019**
## **JUDGMENT**
Heard the learned senior counsel appearing for the appellant and the learned counsel for the respondent.
2. The appeal is filed challenging the judgment and decree passed by the III Additional District Judge, Palakkad in A.S.No.225 of 2015 whereby the decree passed by the Court of Subordinate Judge, Ottapalam in O.S.No.18 of 2012 was set aside and remanded for a fresh consideration. Defendant in the suit is the appellant.
3. Material facts relevant for disposal of the case are as follows: Plaintiff is the absolute owner in possession and enjoyment of the property. He purchased the property as per Ext.A4 sale deed of the year 2000. The property originally belonged to one Cherambath Marakkar as per Ext.A1, deed of assignment issued by the District Collector, Palakkad in the year 1976. Subsequently, in 1994, he assigned the property as per Ext.A2 in favour of one Haneefa. In 1998, Haneefa sold the property to one Pathumma. In the year 2000, plaintiff purchased the property from Pathumma as per Ext.A4. Plaintiff would contend that he is the title holder in possession of the property by virtue of Ext.A4. He was employed abroad
for about ten years prior to the suit. He is a permanent resident of
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Malayalappuzha village in Pathanamthitta district. It is alleged in the plaint that on 26.03.2008, when the plaintiff visited the property, he found the defendant had made an attempt to trespass into the plaint schedule property. Therefore, initially a suit for permanent prohibitory injunction was filed. Later, a prayer for declaration that the plaintiff is having title to the property is also sought for and in the alternative, cancellation of a document on which the defendant bases his claim is also sought for. In fact the document relied on by the defendant has not been marked in the proceedings.
4. In the written statement, the defendant contended that he purchased the property from one K.O.Koshi, S/o.Kulathingal Thomas Unnunni, who was in possession of the property. Surprisingly, this exactly matches with the name and description of the plaintiff. But, the plaintiff would contend that he had not assigned the property in favour of the defendant. It is also the case of the plaintiff that as per Ext.A6, extract of his passport, at the time of creation of the alleged document in favour of the defendant, he was in Saudi Arabia.
5. The defendant would contend that he purchased the property for a consideration of `60,000/- as per document No.2085 of 2006 of SRO, Mannarkkad from K.O.Koshi. Eversince the purchase, the defendant is in possession of the property. According to him, the suit is a misconceived
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action and is liable to be dismissed.
6. Trial court framed necessary issues. After considering the evidence adduced by both sides, the suit was decreed in the following terms:
_“In the result,_
_1. the suit is decreed;_
_2. Ext.B1 document 2085/06 of SRO Mannarkkad is declared as null and void and it is also declared that the plaintiff is the absolute owner of the property;_
_3. the defendant is restrained by way of a decree of permanent prohibitory injunction from trespassing into the plaint schedule property, from committing any act of waste in the plaint schedule property or otherwise disturbing peaceful possession and enjoyment of the plaint schedule property by the plaintiff; and_
_4. the plaintiff is entitled to realise the costs of the suit._
## _5. Intimate the registry concerned.”_
7. The defendant preferred an appeal before the lower appellate court. In that appeal, the learned Additional District Judge directed the trial court to receive document No.2085 of 2006 of SRO, Mannarkkad, the
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document on which the defendant relies, in evidence and decide the case afresh. Reason for remand stated by the lower appellate court is that the document was not marked by the trial court in the trial proceedings and it caused prejudice to the parties.
8. Learned senior counsel appearing for the appellant/defendant would contend that the suit was filed on 07.04.2007. At that time, admittedly it was one for a permanent prohibitory injunction relief alone. Later, it was amended by adding a prayer for declaration and in the alternative, a prayer for cancellation of the document relied on by the defendant. The defendant filed a written statement on 29.05.2007. It is pointed out by the learned senior counsel that in paragraph 3 of the written statement the defendant has set up right over the property by virtue of document No.2085 of 2006 of SRO, Mannarkkad. According to him, the explicit statement in the written statement should be taken as a reason to hold that the plaintiff was aware of the claim of the defendant. In a suit for declaration of this nature, the relevant provision in the Limitation Act, 1963 is Article 58. It reads thus:
|Description of suit|Period of limitation|Time from which period<br>begins to run|
|---|---|---|
|To obtain any other<br>declaration|Three years|When the right to sue<br>first accrues|
Insofar as a suit for cancellation of a document is concerned, Article 59
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applies which reads as follows:
|Description of suit|Period of limitation|Time from which period<br>begins to run|
|---|---|---|
|To cancel or set aside<br>an instrument or decree<br>or for the rescission of<br>a contract|Three years|When the facts entitling<br>the plaintiff to have the<br>instrument or decree<br>cancelled or set aside<br>or<br>the<br>contract<br>rescinded first become<br>known to him|
It is contended by the learned senior counsel appearing for the appellant that the lower appellate court lost sight of the fact that the suit is barred by limitation viewing from any perspective. Although this was taken up in the memorandum of appeal presented before the lower appellate court, no finding was entered by the lower appellate court and therefore it is unsustainable, contended the learned senior counsel.
9. Per contra, learned counsel for the respondent would contend that there are materials on record to show that the document relied on by the defendant as his title deed was not executed by the plaintiff and it is a fabricated document. It is therefore contended that the question of limitation does not arise in this case as no declaration is necessary to establish the case of the plaintiff. However, that is a matter to be adjudicated by the trial court in the trial proceedings.
10. Learned senior counsel placed reliance on a decision
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rendered by the Supreme Court in **L.C.Hanumanthappa (since dead, rep. by his legal representatives) v. H.B.Shivakumar (2015 SCC Online SC 759)** to contend that the plea of limitation should be decided in favour of the appellant. According to the learned senior counsel, the amendment incorporating a prayer for declaration and in the alternative, cancellation of document No.2085 of 2006 of SRO, Mannarkkad should not have been allowed by virtue of the principles stated in the above decision. However, as I do not find any illegality in the remand order, I need not venture to decide that question at this stage. Let that be decided by the trial court at the end of trial.
11. Another contention raised by the learned senior counsel for the appellant is that the suit for declaration and injunction will not lie as the defendant is in possession of the property by virtue of a document through which he claims title. This contention is refuted by the learned counsel for the petitioner contending that he is in actual possession of the property. According to the learned senior counsel, the plaintiff should have been asking for declaration and recovery of possession as he is out of possession. The question as to who is in possession of the property is a question of fact which has to be decided based on the materials on record.
As stated above, I find no reason to interfere with the remand order. But, it should be clarified that the trial court shall consider the above
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said contentions raised by the parties at the time of trial and enter a definite finding. With these observations the order of remand is sustained. The parties shall appear before the court below on 25.03.2019. Court below shall try to dispose of the suit as expeditiously as possible, at any rate within a period of four months from the date of appearance of parties. In case the plaintiff is not available in his native place, he can appear through an authorised agent.
All pending interlocutory applications will stand closed.
**A.HARIPRASAD, JUDGE.**
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