Savithri v. Maniyan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 19TH DAY OF JUNE 2013/29TH JYAISHTA 1935 FAO.No. 56 of 2011 ( ) ----------------------AGAINST THE ORDER/JUDGMENT IN AS 190/2007 of III ADDL. DISTRICT COURT, TRIVANDRUM DATED 19.01.2011 AGAINST THE ORDER/JUDGMENT IN OS 1040/2005 of I ADDL.MUNSIFF COURT,TRIVANDRUM DATED 29.06.2007 APPELLANTS/RESPONDENTS/DEFENDANTS: ---------------------------------- 1. SAVITHRI, W/O. LATE RAGHAVAN, LEKSHMI VILAKATHU VEEDU, THAMALAM, POOJAPPURA P.O. THIRUVANANTHAPURAM. 2. R.SURESH, S/O. RAGHAVAN, RESIDING AT -DO- -DO3. S.AMBIKA KUMARI, D/O. SAVITHRI, RESIDING AT -DO- -DO4. R.JAYAKUMAR, S/O. RAGHAVAN, RESIDING AT -DO- -DO5. R.UDAYAKUMAR, S/O. RAGHAVAN, RESIDING AT -DO- -DO6. R.AJAYAKUMAR, S/O. RAGHAVAN, RESIDING AT -DO- -DOBY ADVS.SRI.L.MOHANAN SMT.LIGEY ANTONY RESPONDENT(S)/APPELLANTS/PLAINTIFFS: -----------------------------------1. S.MANIYAN, S/O. SUKUMARAN, KANATHUVILAKOM PUTHEN VEEDU, THAMALAM, POOJAPPURA THIRUVANANTHAPURAM. 2. OMANA, D/O. SARADA, PARAVATHALA PANAYIL VEEDU, THAMALAM, POOJAPPURA P.O. THIRUVANANTHAPURAM. 3. V.SATHEESH @ RAJESH, S/O. VELAYUDHAN, RESIDING AT -DO- -DO4. L.THANKAMMA, D/O. KESAVAN, TC 19/1198, THAMALAM, POOJAPPURA P.O. THIRUVANANTHAPURAM. R2-3 BY ADV. SRI.M.BALAGOVINDAN R2 AND R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 19-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P.JOSEPH, J. ========================= F.A.O.No.56 of 2011 ============================ Dated this the 19[th] day of June, 2013** ## **J U D G M E N T** This appeal arises from the judgment dated 19.01.2011 in A.S.No.190 of 2007 of the learned third Additional District Judge, Thiruvananthapuram. Records are not called for in view of the dispute involved and required to be decided in this appeal. 2. The 4[th] respondent/4[th] plaintiff is the eldest daughter of late Kesavan. The respondents 1 to 3/plaintiffs 1 to 3 are the children of sister of the 4[th] respondent. The appellants/defendants are the widow and children of Raghavan, predeceased son of the late Kesavan. 3. The respondents claimed that the suit property - 8.600 cents in survey 2051/2-1 of Thirumala Village and building bearing door No.TC-19/1198 along with other items belonged to the late Kesavan. After the death of Kesavan, there was a partition among his legal representatives as per document No.34 of 1997 (a photocopy of which was marked in the trial court as Ext.A1). It is their further case that as per that partition deed the suit property was allotted to the 4[th] respondent/4[th] plaintiff as A schedule. The appellants were allotted the F schedule. The 4[th] respondent later conveyed the suit property to the respondents 1 to 3 as per Ext.A2 and A3, sale deeds. At the time F.A.O.No.56 of 2011 2 of partition as per deed No.34 of 1997 as there was no building in the F schedule allotted to the appellants, they were allowed to stay in the building in the A schedule of Ext.A1. Respondents on the above allegations sought for recovery of possession of the suit property and building. 4. The appellants denied that the respondents have title to the suit property. They claimed that Kesavan allowed his son, the late Raghavan to construct a building in the suit property. Accordingly, Raghavan constructed building where the appellants are staying. They also raised claim of title by adverse possession. 5. Trial court dismissed the suit for various reasons including that neither the original nor a certified copy of the partition deed is produced and for absence of proper identification of the suit property. 6. Respondents challenged that judgment in A.S.No.190 of 2007. Pending that appeal, respondents filed I.A.Nos.2497 of 2010, 2498 of 2010, 2896 of 2010 and 4163 of 2010. I.A.Nos.2497 of 2010 and 2498 of 2010 were to receive additional oral/documentary evidence. I.A.No.2497 of 2010 was to appoint an Advocate Commissioner to identify the A and F schedules of the partition deed. I.A.No.4163 of 2010 was to amend the plaint schedule to state that the building is part of the family building which existed in the A schedule of the partition deed. The learned F.A.O.No.56 of 2011 3 Additional District Judge allowed the said applications notwithstanding objection of the appellants. The appeal was allowed by way of remand with certain directions. The order of remand is under challenge in this appeal. 7. The learned counsel for the appellants has contended that learned Additional District Judge was not right in allowing the applications on the face of objections the appellants had raised. It is pointed out that there was no scope for adducing oral evidence and at any rate, a remand should not have been permitted to fill up the lacuna in the case of the respondents. It is argued that learned Additional District Judge at any rate went wrong in allowing I.A.No.2497 of 2010 and appointing the Advocate Commissioner in identification of F schedule in Ext.A1 which is not the subject matter of the suit. The learned counsel has placed reliance on the decision in **Sreenivasan v. Thilakan (2003(2) KLT 958** (paragraph 15)) and **Municipal Corporation, Hyderabad Vs. Sundar Singh (2008(8) SCC 485** (paragraphs 19 and 20)) as regards power of the appellate court to remand under Order 41 Rule 23 of the Code of Civil Procedure (for short, "the Code”). 8. The learned counsel for the respondents contended that though the original or certified copy of the partition deed was not produced in the trial court, existence of the partition deed was not disputed by the appellants also and in the circumstance, marking of F.A.O.No.56 of 2011 4 the photocopy is justified. It is also argued that having regard to the contentions of the appellants it was necessary that A and F schedules of the partition deed is identified so that identity of the suit property could be fixed to show that what was allotted to the appellants in the partition is F schedule. The learned counsel contends that in appropriate cases it is the power, nay, the duty of the appellate court to allow a remand so that the dispute between the parties is resolved. 9. In **Sreenivasan v. Thilakan** (supra) it is observed in paragraph 15 that the discretionary jurisdiction vested in the appellate court to remand the matter to the trial court cannot be exercised in cases where the appellate court can decide the issue considering the evidence on record and that a remand cannot be made due to the reason that the findings arrived at by the trial court are erroneous or due to misreading the evidence or due to the failure to apply the correct law on the point or for writing a better or more satisfactory judgment or to fill up the lacuna in the case. In **Municipal Corporation, Hyderabad Vs. Sundar Singh (supra)** it is held that the Court should be slow in exercising the discretionary power under Order 41 Rule 23 of the Code. The power to remand is an enabling provision. 10. The crux of the decisions above stated is that there should not be no remand as an empty formality. Where the F.A.O.No.56 of 2011 5 appellate court can decide the case on the evidence on record, a remand is not encouraged. For, the appellate court should decide the issue based on the evidence. Nor can there be a remand to fill up the lacuna on the side of the party. What is 'lacuna' is understood by the courts as “the inherent wedge in the case”. If by inadvertence a party or counsel omits to take some steps in the case, that cannot be taken as an inherent wedge so that it could be described as a 'lacuna' in the case. 11. In this case, in view of the contentions the appellants have raised in the written statement, it was appropriate that title claimed by the respondents in the suit property is proved. Title cannot be decided by surmises and conjunctures. A properly measured plan of the property is essential. Therefore it was necessary that the respondents took steps in the trial court for identification of the suit property with reference to the partition deed they claimed. 12. That the respondents did not do so in the trial court cannot be understood as a lacuna in their case. For, respondents stand by their case that they got absolute title over the suit property as per the partition deed above stated. 13. So far as identification of the property, reception of additional evidence and amendment of the plaint is concerned, I am inclined to think that the proper course would have been to direct F.A.O.No.56 of 2011 6 the learned Munsiff to consider those applications having regard to the fact situation rather than learned Additional District Judge allowing those applications and issuing directions to the learned Additional Munsiff as contained in paragraph 12 of the judgment. 14. I am inclined to think that a remand of the case is warranted though it would appear that necessary steps were not taken by the respondents in the trial court. The respondents should not be punished for not taking proper steps in the trial court. Their claim of title over the property has to be adjudicated once and for all rather than leaving that question open. Also, claim of the appellants that the building in question was constructed by their predecessor-in-interest as permitted by the late Kesavan is required to be decided by the trial court. In that view of the matter I do not find reason to interfere with the ultimate order remanding the case to the trial court for a fresh decision. At the same time the orders allowing I.A.Nos.2497 of 2010, 2498 of 2010, 2896 of 2010 and 4163 of 2010 and the directions learned Additional District Judge has issued in paragraph 12 of the judgment should go. Resultantly this appeal is allowed in part as under: (i) The orders of learned third Additional District Judge, Thiruvananthapuram on I.A.Nos.2497 of 2010, 2498 of 2010, 2896 of 2010 and 4163 of 2010 in A.S.No.190 of 2007 are set aside. F.A.O.No.56 of 2011 7 (ii) Judgment of learned Additional District Judge remanding O.S.No.1040 of 2005 of the Munsiff's Court (R.C.C), Thiruvananthapuram is confirmed. (iii) The directions issued by the learned Additional District Judge in Paragraph 12 of the judgment are also set aside. (iv) I.A.Nos.2497 of 2010, 2498 of 2010, 2896 of 2010 and 4163 of 2010 will stand remitted to the learned Additional Munsiff along with the suit for decision after hearing both sides. (v) It is made clear that if any fresh application for amendment of the plaint/written statement is preferred by the parties before the learned Munsiff, that application also shall be decided by the learned Munsiff after hearing both sides on its merit. (vi) Learned Munsiff is directed to decide the issue involved in the case after giving both parties opportunity to adduce evidence. (vii) Parties shall appear in the Additional Munsiff's Court (R.C.C), Thiruvananthapuram on 15.07.2013. All interlocutory applications will stand dismissed. Sd/- ## **THOMAS P.JOSEPH, JUDGE** Sbna True Copy / P.A to Judge