P.K. Sivasubramanian v. Mohammed and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935** ## **RSA.No. 93 of 2013 ()** **---------------------AS 14/1987 of SUB COURT, MANJERI OS 176/1975 of MUNSIFF COURT, MANJERI** **--------------** ## **APPELLANT(S)/(APPELLANT-PLAINTIFF) :-** **----------------------------------------** ## **P.K.SIVASUBRAMANIAN, AGED 62 YEARS, S/O.PARAKKATTU KOZHISSERY MEENAKSHI AMMA KONDATH HOUSE, P.O.VALLUVANGAD, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.R.RAJESH KORMATH** ## **RESPONDENT(S)/(RESPONDENTS-DEFENDANTS) :-** **-------------------------------------------** **1. MOHAMMED, AGED 67 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **2. CHERIYON ALIAS MOIDEEN,, AGED 64 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **3. ATHAN,, AGED 61 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **4. MANJERIKADAN PATHUMMA,, AGED 86 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **5. MARIYUMMA,, AGED 62 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **6. AYICHA,, AGED 66 YEARS VETTIKKATTIRI AMSOM, KARAYA DESOM, P.O.VALLUVANGAD ERNAD TALUK, MALAPPURAM DISTRICT-676521.** **BY ADV. SRI.M.KRISHNAKUMAR (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J.** ========================== **R.S.A. No. 93 of 2013** =================================== **Dated this the 18[th] day of June, 2013** ## **JUDGMENT** The plaintiff in a suit for recovery of possession on the strength of title is the appellant. Earlier, the suit was filed in the year 1975 for injunction. The plaint schedule property belonged to Maranattu Mana (hereinafter referred to as “Mana”). The case originally set up by the plaintiff was that he obtained oral lease of the property in 1966. Though the plaintiff contended that he was in possession of the property, the trial court found that the plaintiff was not in possession and hence the suit was dismissed. In the appeal, the appellate court made inconsistent finding. When the matter came up before this court in S.A.363 of 1981, it was observed by this court that the lease set up by the plaintiff is invalid in view of Sec.74 of Kerala Land Reforms Act. However, the plaintiff had amended the suit to one for recovery of possession. The defendants contended that the plaint schedule property is part of the property obtained by them as per Ext.X1 lease. It was observed by this court that the defendants' lease deed, Ext.X1, does not cover the plaint schedule property. It was contended by the defendants that they were in possession of the suit R.S.A. No. 93 of 2013 -: 2 :- property bonafide believing themselves to be tenants. It was also observed by this court that if the defendants were in possession, that possession was anterior to that of the plaintiff, in which case the plaintiff cannot succeed. It was also found that if the defendants trespassed into the property after 1966, recovery of possession is also possible. Ultimately, this court set aside the decree and judgment of the courts below and the matter was sent back to the trial court for a fresh decision in the light of the observation contained in that judgment. The parties were allowed to adduce fresh evidence, oral and documentary. It was also found that it was not necessary to issue a fresh commission as there is no dispute regarding the identity of the property. 2. After the suit was remanded, the plaintiff produced Ext.A7 document, as per which, he purchased the entire right over the plaint schedule property from the Jenmi-Mana. An application for amendment was also filed with regard to the same that the recovery of possession is sought on the strength of Ext.A7 title deed. That petition was not allowed by the trial court or by the appellate court. The trial court again dismissed the suit. The appellate court concurred with the view taken by the trial court and thus the appeal was R.S.A. No. 93 of 2013 ## -: 3 :- dismissed. 3. As the appellate court did not formulate the relevant points and as there was no proper discussion, the judgment passed by the lower appellate court was set aside and the matter was remanded by this court, as per order dated 15.3.2012. Thereafter some points were raised by the appellate court and again the learned Sub Judge dismissed the appeal but without proper discussion of the questions involved. 4. The following substantial questions of law are framed :- - (i) Are the courts below justified in disallowing the amendment to the plaint consequent to Ext.A7 assignment deed ? - (ii) Whether the finding regarding Ooduvazhi/road entered by the courts below is unsustainable ? 5. The learned counsel for the appellant would submit that the trial court as well as the lower appellate court failed to take note of the observation made by this court in the remand order dated 27.1.1986. Since Ext.A7 sale deed was executed subsequent to the order of remand passed in 1986, it (Ext.A7) was simply ignored and held by the courts below that R.S.A. No. 93 of 2013 -: 4 :- the plaintiff did not obtain any right and thus the courts below entered into a wrong conclusion. Admittedly, the property belonged to 'Mana'. It is true that the case originally set up by the plaintiff that he obtained oral lease of the property in 1966 was found to be untenable and unacceptable not only because, the lease is hit by Sec.74 of the KLR Act, but also on the ground of unacceptability of the evidence given by PW1 and the Karyasthan of the 'Mana', who was examined as PW2. It was realising that fact the plaintiff subsequently purchased the property from the 'Mana' and obtained title to the property. 6. If Ext.A7 is accepted as true and valid document, then the defendants can resist the suit for eviction only by proving that they are cultivating tenants entitled to fixity of tenure or on the ground that they have perfected title by adverse possession and limitation. It is further submitted by the learned counsel for the appellant that though the argument now vehemently advanced by the learned counsel for the defendants is that the defendants were under the impression that the property obtained on lease as per Ext.X1 included the plaint schedule property also and that it was on such a bonafide belief that they were in possession of the R.S.A. No. 93 of 2013 -: 5 :- property, no such plea was raised in the written statement. Therefore, the learned counsel submits that without a specific plea as to how the defendants can resist the action for recovery of possession, they cannot contend that since they were in possession of the property no decree for recovery of possession can be passed. 7. It is also pointed out by the learned counsel for the appellant that though the defendants were vehemently contending regarding the so called possession of the property as tenants, they did not obtain purchase certificate in respect of the property earlier, but only in 2004, purchase certificate was stated to have been obtained. Admittedly, that was obtained without notice to the appellant herein. Since that purchase certificate was obtained long after the institution of the suit no weight can be given to that certificate, especially because, there was no case for the defendants in the written statement filed by them that they were deemed tenants entitled to obtain purchase certificate. Had such a plea been raised earlier then certainly issue as to whether the defendants were deemed tenants would have been referred to the Land Tribunal under Sec.125(3) of KLR Act. Therefore, the absence of plea regarding deemed tenancy and the further R.S.A. No. 93 of 2013 -: 6 :- fact that no such issue was raised earlier, according to the learned counsel for the appellant, should not have been totally overlooked by the courts below. 8. It is vehemently argued by the learned counsel for the respondents that since Ext.A7 sale deed was obtained only on 08-4-1986, no sanctity can be given to such a sale deed in view of the statutory vesting under Sec.72 of the KLR Act. If the property in question was held by a cultivating tenant then the argument that all right, title and interest of the land owners in respect of the holding held by the cultivating tenants entitled to fixity of tenure shall vest in the government is well acceptable. But if the property in question was not held by a cultivating tenant entitled to fixity of tenure the question of vesting under Sec.72 of the KLR Act does not arise. Therefore, the question is whether the disputed property was held by the defendants as cultivating tenants but if it is found to be otherwise, then the question of attaching invalidity to the document on the premise that it would offend Sec.72 of the KLR Act would not arise. These aspects were not at all considered by the courts below. But the courts below proceeded on the premise that there can be no transaction at all by a Jenmi to another person after R.S.A. No. 93 of 2013 -: 7 :- 1/1/1970. What is prohibited is with respect to the property of which the right, title and interest of the land owners held by the cultivating tenants entitled to fixity of tenure. Therefore, according to the learned counsel for the appellant, the validity of Ext.A7 cannot be challenged at all in view of the fact that the property mentioned therein was not proved to be the land held by a cultivating tenant entitled to fixity of tenure. It is also pointed out that Ext.A7 does not take in the land covered by Ext.X1 lease deed which is only the land held by the defendants under the 'Mana'. It is also argued that there was no case for the defendants that Ext.A7 was executed with intend to defeat the provisions relating to the ceiling area of the KLR Act. 9. There is one more fallacy in the approach made by the courts below, the learned counsel submits. The courts below proceeded on the premise that the defendants obtained title to the property on the strength of Exts.B1, B4 and B5. The courts below overlooked the fact that assignees under a particular document cannot confer better title by incorporating additions to the area obtained under the assignment from his assignor. The original lease deed was caused to be produced and marked as Ext.X1. Ext.X1 is clear R.S.A. No. 93 of 2013 -: 8 :- that the lease granted to the lessee thereunder was only in respect of an area measuring 70 x 60 six feet koles. The eastern boundary of that property was shown as Pulakal Paramba; southern boundary was shown as Puthen Poil; and the western boundary was shown as Kalaparamba and the northern boundary was shown as Vadakekkara Paramba. Since all the four boundaries are definite and certain and since it was further made clear that the area covered by the lease is only 70 x 60 six feet koles, the contention that the tenant was under the impression that the land obtained under Ext.X1 was something more cannot be accepted at all. There is no document to show that the defendants had paid rent to any area in excess of what is contained in Ext.X1. But the courts below proceeded to rely very much on Ext.B1 a registered assignment deed executed by Pathumma and another heir of Moideen Kutty, the deceased lessee under Ext.X1, in favour of Mohammed where it was stated that the property was obtained by Moideen Kutty, their father, as per the lease deed and on the death of Moideen Kutty, the right over the said property devolved upon the executant and other persons mentioned in Ext.B1. There the extent of the property was wrongly shown as 210 x 140 six feet koles. When the R.S.A. No. 93 of 2013 -: 9 :- property in respect of which the lease was granted was only 70 x 60 six feet koles, it is inconceivable how one of the legal heirs of the tenant can create a document in respect of a land measuring 210 x 140 six feet koles. It is true that the said document was executed on 22.6.1957. On the same day another document was executed as evidenced by Ext.B5 as per which, some of the other legal heirs of Moideen Kutty executed a surrender deed in favour of Ahammed Kutty, who is the assignee mentioned in Ext.B1 as well. Therefore, by executing the two documents on 22.6.1957 by the legal heirs of the deceased tenant, they wanted to lay claim in respect of an area of about 24.50 acres when in fact, lease hold covered by Ext.X1 was only for 3.50 acres. 10. Ext.B4 is the release deed executed by some of the other legal heirs of Moideen Kutty in favour of Ahammed Kutty mentioned above. That was executed on 28.12.1973. That was in respect of a property measuring 3.50 acres comprised in Sy.No240/1. The learned counsel for the appellants would submit that incorporation of wrong kole measurement in Exts.B1 and B5 and other documents by the legal heirs of the original tenant, who obtained property only under Ext.X1 cannot create lease in respect of a larger extent. R.S.A. No. 93 of 2013 -: 10 :- There is no case for defendants that the landlord had subsequently created lease in respect of any area beyond 70 x 60 six feet koles covered by Ext.X1, at any point of time prior to 1.4.1964 or even thereafter. Therefore, according to the learned counsel for the appellant, simply because a wrong kole measurement was shown in a document created inter se , between the legal heirs of the original tenant no right can be claimed in respect of any land in excess of what was shown in Ext.X1. These aspects were not seen considered at all by the courts below. 11. On going through the judgments it would appear that two courts were persuaded to hold that the title deed of the defendants are Exts.B1, B4 and B5, obviously oblivious of the fact that no lease was created in respect of that much land as per Ext.X1. Documents created by tenants themselves, incorporating self serving recitals regarding extent, seems to have persuaded the courts below to hold that those are the three title deeds, (Exts.B1, B4 and B5) upon which the defendants can sustain their plea for possession, totally ignoring the fact that the lease obtained by the defendants' predecessor was in respect of 70 x 60 six feet koles only. 12. It is also pertinent to note that in Exts.B1, B4 and R.S.A. No. 93 of 2013 -: 11 :- B5, there was no recital to the effect that though as per Ext.X1 the property obtained was shown to be measuring only 70 x 60 six feet koles, the grantee under Ext.X1 was actually holding the land measuring 210 x 140 six feet koles and that the said area was found out on a subsequent measurement and that was why the measurement was so incorporated in Exts.B1, B4 and B5. It is inconceivable how such a wrong recital could be entered in a document and then contend that the tenancy obtained from the 'Mana' was in respect of 210 x 140 six feet koles, the total measurement which would covered to 24.50 acres, when in fact the total extent covered by Ext.X1 comes to only 3.50 acres. 13. The courts below were seen harping on the unacceptability of the evidence given by PW1 and the 'Karyasthan' with regard to the oral lease and possession when in fact, after the obtainment of the title by the plaintiff as per Ext.A7, those questions did not assume any relevance at all. The courts below again proceeded to hold whether the case of possession set up by the plaintiff is acceptable or not without going into question as to whether plaintiff's title is valid and if so, whether the plaintiff is entitled to get recovery of possession, if the defendants cannot resist the suit either by R.S.A. No. 93 of 2013 -: 12 :- proving tenancy or deemed tenancy or a case of prescriptive title. 14. It is interesting to note that the courts below even went on to say as to the relevancy of a noting by pencil in the description column of Ext.X1 which is a registered lease deed. What is produced is the original lease deed. The fact as to who wrote 246/2, 246 is not at all relevant. There is no evidence as to who wrote it, when it was written and what was the reason for writing. There is total dearth of evidence regarding the same. That entry has absolutely no relevance to the point in issue but that also has been projected to make it appear that there was something fishy even in making that entry. Ext.X1 was produced by the 'Mana'. The question as to what was the Sy.No of the property in respect of which Ext.X1 lease was granted is not something to be found out from such 'unknown writing'. When the document itself is clear, cogent and convincing as to the nature of lease the extent of leased land and the description of the property, nothing more is required regarding that aspect. 15. It is pointed out that the property covered by Ext.X1 lies to the south of the Panchayath road and it does not go beyond the road. In Exts.B1 and B5 northern boundary of R.S.A. No. 93 of 2013 -: 13 :- the property is shown as Ooduvazhiu (may be a narrow way). In Ext.X1, no reference has been made to such Ooduvazhi as the northern boundary. There is no case for the defendants that the property covered by Ext.X1 is situated to the north of the Panchayath road. Admittedly, property lying to the south of the Panchayath road is held by the defendants. According to the plaintiff, that is the only property covered by Ext.X1 and the defendants are not in possession of any extent of land to the north of the Panchayath road. 16. It is in evidence that the legal heirs of Ahammed Kutty had subsequently entered into a partition of the property including the lease hold property in 1963. But, admittedly, the suit property was not included as an item of property partitioned by them. The courts below observed that the non-inclusion of that property in the partition deed is not of much relevance. True, merely because the plaint schedule property was not included in the partition deed, it cannot be said that the defendants have no right over the property, but at the same time, non-inclusion of the plaint schedule property in Ext.A6 partition deed dated 04.10.1963 cannot be simply ignored in view of the fact that that partition deed was entered into between the parties prior to 01.4.1964. Had the R.S.A. No. 93 of 2013 -: 14 :- parties been in possession of the property of an extent of land measuring 210 x 140 six feet koles, being a vast area measuring 24.50 acres, it would have been actually subjected to partition. Admittedly, the properties left behind by deceased Moideen Kutty was subjected to partition as per Ext.A6. Though Sy.Nos may be different, in fact, one of the items which was partitioned include Puthen Poil Kudiyirippu Parambu, the northern boundary of which was shown as Panchayath road. Puthen Poyil Kudiyiruppu Paramba is the property covered by Ext.X1 lease deed. If so there is merit in the contention raised by the plaintiff that the property covered by Ext.X1 was partitioned and there remained nothing with them to be further included in Ext.A6. 17. If as a matter of fact the plaint schedule property measuring such vast extent of 24.50 acres was held by the legal heirs of Moideen Kutty as tenant and when the property lying immediate to the south of the panchayath road was subject to partition as per Ext.A6 and when there is absolutely no mention in Ext.A6 that the plaint schedule property was enjoyed in common, the defendants cannot simply wriggle out of the difficulty in not including the suit property in Ext.A6 partition deed of 1963. Therefore, though, non inclusion of R.S.A. No. 93 of 2013 -: 15 :- the particular item of property in a partition deed among the members of the family may not by itself be a reason to doubt the veracity of the case put forward by the parties, in the particular factual scenario that non inclusion also assumes much relevance. 18. It is vehemently argued by the learned counsel for the respondents that the order of remand passed by this Court on 27.1.1986 does not authorise the plaintiff to cause amendment to the plaint after purchase of the property as per Ext.A7 and so the courts below were perfectly justified in not acting upon Ext.A7. The order of remand does not say that the parties are precluded from causing amendment to the plaint. At that point of time the plaintiff never contemplated purchase of the property as per Ext.A7 deed. Since it was an open remand and when amendment of plaint was not prohibited by the order of remand, the courts below were not justified in declining the prayer for amendment based on Ext.A7. In this connection, the learned counsel for the appellant has relied upon the decision in **Nalini v. Padmanabhan Krishnan – AIR 1994 Kerala 14** . That was a case where the order of remand reads thus: “the trial Court shall allow the plaintiff to take out R.S.A. No. 93 of 2013 ## -: 16 :- a commission to identify the disputed land with reference to the Survey numbers, as applied for by him in I.A. 6985/85, filed before this Court. The trial Court should also give an opportunity to the contesting parties, to adduce further evidence in support of their respective contentions.” The learned counsel submits that the order of remand in this case is also almost identical to the order of remand referred to above. There also it was contended that the reception of additional written statement and consideration of the question of adverse possession and limitation, were not permissible since the remand order did not permit that. But it was held by this court that though the remand order does not specifically say that the parties are entitled to amend the pleadings or put forward additional pleadings what was done by the remand in that appeal, was remittance of the case to the trial court for fresh disposal. There also certain directions regarding issuance of a commission etc were given. Ultimately, it was held by this court that the directions issued by the court do not mean that remand was for the limited purpose of identifying the property on the basis of the survey numbers by issuing a commission and that when the case is remanded for fresh disposal, it was within the jurisdiction of the trial court R.S.A. No. 93 of 2013 -: 17 :- to receive additional written statement or allowing the parties to amend their pleadings, according to the merits of the matter. Here also, the sale deed was obtained by the plaintiff after the order of remand. Law does not prohibit transfer of property by one owner to another person. The lease originally set up by the plaintiff was hit by section 74 of the K.L.R. Act and therefore unless the defendants are able to show that Ext.A7 was executed in respect of a property held by a cultivating tenant entitled to fixity of tenure, the sale deed cannot be attacked, for, there is no legal impediment in executing the sale deed by one jenmi to another person. When such sale deed was obtained, there was no legal impediment to the plaintiff to cause amendment to the plaint seeking recovery of possession of the property in question in the very same suit instead of filing a fresh suit. 19. The trial court has found that as per Ext.B1 the defendants do not hold property in Re.Sy.No. 240/1. But it is stated that the kole measurement of the property shown in Ext.B1 is 210 x140 six feet koles. As said earlier, the trial court proceeded on the premise that Ext.B1, B4 and B5 are the title deeds of the defendants forgetting for a moment that those three documents were created inter se among the R.S.A. No. 93 of 2013 -: 18 :- members of the family and it is not a document of lease or assignment executed by the jenmi or by persons having title to the property prior to the date of such execution. Therefore, as stated earlier, the wrong recital in the kole measurement shown in the schedule to Exts.B1, B4 and B5 cannot come to the rescue of the defendants to contend that the property which was leased out to them was in fact 210x140 six feet koles. It is further observed by the trial court that in Ext.B5, the property is shown as 210 x 140 six feet koles and that it is comprised in Sy. Nos. 46/3, 47/1 and 247/2 and 247/10. It was no where mentioned in the document that the property covered by Ext.X1 was measured and then it was found that the property within the four boundaries is having more extent or that there was mistake in the survey number or anything of that sort. Of course, even if survey numbers are wrongly incorporated in the document that will not in any way affect the right of the parties if the document of assignment is in respect of the particular property which falls within the four boundaries shown therein. It was pointed out that as per Exts.B1 and B5 the defendants were in possession of the properties lying to the south of 'ooduvazhi'. The trial court has observed that if the Panchayath road is taken as the R.S.A. No. 93 of 2013 -: 19 :- northern boundary, the north - south measurement of Ext. B1 property will be only 66 six feet koles. That exactly is the case of the plaintiff. According to the plaintiff since the northsouth measurement is only 66 feet koles, if X-X2 shown in the Commissioner's plan is taken as the northern boundary then the north-south measurement of Ext.B1 property would be more than 100 koles, and so it is more probable that X-X2 is the ooduvazhi mentioned in Ext.B1 and B5. It is pertinent to note that when the boundary is only an 'ooduvazhi' it is not a certain or definite thing since it is natural and common course of conduct that people used to have shortcuts to reach the public road or other institutions to have easy access and that may change off and on also. The fact that now a Panchayath road is seen or an ooduvazhi is seen and so that must have been the ooduvazhi mentioned in Ext.B1 and so the property must extend up to the northern boundary as pointed out by the defendants cannot be accepted at all. No doubt, the evidence would show that there was an ooduvazhi lying to the north of the present Panchayath road also. It is also pointed out that the karyasthan of the Mana who examined has also stated about the ooduvazhi. 20. Now the dispute centers round the title to the R.S.A. No. 93 of 2013 -: 20 :- property and as to whether the defendants had obtained tenancy right in respect of the property measuring 210 x 140 six feet koles or only 70 x 60 six feet koles. There cannot be mere surmises to hold that the property extends upto a particular ooduvazhi which is now seen without adverting to the fact that the original lease deed was in respect of 60 x 70 (six feet koles) the northern boundary of which extends only up to the Panchayath road. The property covered by Ext.X1 with reference to the kole measurement and the name and description of the paramba shown in the schedule was identified. There is no specific case for the defendants as to how the legal heirs of the lessee under Ext.X1 obtained the additional extent of land now claimed by them. There is no recital to show that it was on subsequent measurement the difference in the extent of the kole measurement could be found out and that was why such recitals were incorporated. The plea that actual land covered by the lease deed or that as per Ext.X1 the defendants were in possession of 210x140 six feet koles cannot be accepted at all. Going by the measurement it could be found that the property measuring 70x60 six feet koles covered by Ext. X1 is outside the property R.S.A. No. 93 of 2013 -: 21 :- claimed by the plaintiff on the strength of Ext. A7 sale deed. As said earlier, the courts below were more concerned about the possession of the properties asserted by the parties in order to find whether the claim of possession asserted by the plaintiff is true. Now that there was change of circumstance after obtainment of absolute title as per Ext. A7, the plea of possession put forward by the plaintiff fails into insignificance. So long as Ext.A7 is not hit by Sec. 72 of the KLR Act, in view of the fact that the property mentioned in Ext.A7 is not in respect of any lands held by the cultivating tenant having fixity of tenure under Sec. 13 of the KLR Act, the plaintiff's title to the said property cannot be denied. 21. Ext.A6, the partition deed No.3034/1963 was in respect of the property jointly held by them. Item No.1 therein is actually Puthen Poyil Kudiyiruppu Paramba which is in fact the description of the property shown in Ext.X1. Not only that the northern boundary of that property is shown as Panchayath Road. Therefore that also is an indication to hold that the parties to Ext.A6 who were claiming as the LRs of deceased Moideen Kutty were not having any extent of land to the north of that Panchayat Road. 22. After the appellant obtained Ext.A7 title deed from R.S.A. No. 93 of 2013 -: 22 :- the Mana, an application as I.A.No.1343/1986 was filed before the trial court to amend the plaint incorporating the particulars as to document purchased by him and the effect of the sale deed so obtained by the plaintiff. That petition was seriously opposed by the defendants. Learned Munsiff passed an order dismissing that petition on 21.8.1996. That order was not challenged independently. But the learned counsel for the appellant would submit that in view of Sec.105(1) of CPC, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. Therefore, though the rejection of the application, I.A.No.1343/1986 was not challenged earlier, the appellant can very well attack the order passed in that application in the appeal filed by him. The learned Appellate Judge has not considered the contention regarding the rejection of amendment or even regarding Ext.A7. In fact, the appellate court has not considered so many vital aspects touching the issue but has dealt with the matter in a casual way. In view of the fact that the order of remand was an open remand and since nothing was stated restricting the amendment of the pleadings, in the light of the decision cited supra, I find that ## R.S.A. No. 93 of 2013 -: 23 :- the amendment has to be allowed, in which case, the defendants may have to be given opportunity to file additional written statement which may sometimes necessitate framing of an additional issue as well. Therefore, it is not possible for this Court to finally dispose of the second appeal. Since the application for amendment was filed in 1986, the contention that the petition is barred by limitation cannot be sustained. In view of what is stated above, the decree and judgment of the courts below are set aside and the suit is remanded to the trial court for fresh disposal in accordance with law and in the light of what have been stated earlier. Parties are directed to appear before the trial court on **17.7.2013.** The trial court will give top priority to dispose of the suit at the earliest. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// ## P.A. To Judge das/jjj/ani/jvt