SUPREME COURT OF INDIA
Hameed (D) By Lrs. and Others
Vs
Kummottummal Kunhi P.P.Amma (D) By Lrs and Others
Appeal (Civil) 3023 of 2006 (Arising Out of Slp (C) No.13712/2003)
(Dr. Ar. Lakshmanan and L. S. Panta, JJ)
18.07.2006
DR. AR. LAKSHMANAN, J.
Delay condoned.
Leave granted.
Heard Mr. P. Krishnamoorthy, learned Senior Counsel for the appellants and Mr.
M.K.S. Menon, learned counsel for the respondents.
This appeal is directed against the final order/judgment dated 12.7.2002 in
A.S. No.624 of 1994 passed by the High Court of Kerala, whereby the High Court,
after setting aside the decree and judgment of the courts below, remanded the
matter back to the trial court for reconsideration. The LRs. of 5th defendant
are the appellants before us. The respondents filed the suit for recovery of
possession on the strength of title of the plaint schedule property from the
possession of defendants 4 to 6 and for partition of the same among the tavazhi
members and also for prohibitory injunction and damages. The defendants
including defendant no.5 resisted the suit contending that the title and
possession of the property is with them and if at all the title of the property
is found to be with the plaintiffs, the same is lost by adverse possession and
limitation. Witnesses were examined on both sides. The contesting defendants
produced about 41 documents showing the derivation of title and possession of
the property with them.
The Trial Court holding that the respondents-plaintiffs failed to prove title
and the defendants, the appellants herein, are in continuous and uninterrupted
possession of the suit property, dismissed the suit with costs to the
contesting defendants. On appeal by the plaintiffs, the High Court remanded the
matter back to the Trial Court for reconsideration.
We have perused the order passed by the High Court. While remitting the matter,
the High Court has not indicated as to what question of facts and law are
required to be assessed and the circumstances upon which the High Court found
itself unable to decide the matter.
Aggrieved by the order passed by the High Court, the LRs. of 5th defendant
preferred the above appeal in this Court. Mr. P. Krishnamoorthy, learned Senior
Counsel, submitted that the High Court was not justified in remanding the
matter back to the Trial Court for reconsideration with liberty to adduce
further evidence without entering into a finding that the judgment and decree
are erroneous and without considering the case on merit, in view of Order 41,
Rule 23A of the Code of Civil Procedure. He would further submit that the High
Court was not justified in remanding the matter without indicating as to what
question of law and facts are required to be decided and why remand is
necessited? Per contra, Mr. M.K.S. Menon, learned counsel for the respondents,
submitted that the order of remand passed by the High Court is perfectly in
order and that the High Court after satisfying that it is a case whereby the
parties are given sufficient opportunity to adduce evidence, both documentary
and oral, and remanded the matter and therefore no interference is called for
with the judgment passed by the High Court. We are unable to countenance the
submissions made by the learned counsel for the respondents.
The Trial Court in paragraph 16 of its judgment held as follow:
"Apart from Ext.A1 and A2 which are the copies of adangal registers, no
other documents are produced by the plaintiffs to show that they or their
predecessors have got title to the plaint schedule property. During
cross-examination the 7th plaintiff who is examined as PW.1 stated that the
property originally belonged to Kummottungal tarwad and the tarwad gave it to
the tavazhi of Kalliani Pillari Amma. It is on the basis of this that the jama
was transferred in the name of Kalliani Amma. But he could not state how the
tarwad got right over the property."
It is seen from the judgment passed by the Trial Court that apart from Ext.A1
and A2, which are the copies of adangal registers, no other documents are
produced by the plaintiffs to show that they or their predecessors have got
title to the plaint schedule property. This apart, the plaintiff was given
sufficient opportunity to produce the documents. In spite of opportunity, no
other documents were filed and in the circumstances, we are of the opinion that
the High Court should not have remanded the matter with liberty to produce
documents in order to fill lacuna in the evidence.
We, therefore, set aside the order passed by the High Court and remit the
matter to the High Court for consideration of appeal before it on merits only
on the materials already on record. The High Court will dispose of the appeal
without being influenced by any of the observations made by us in this appeal.
The Civil Appeal stands disposed of with no orders as to costs.