The appellant herein was the defendant, while the respondent herein was the plaintiff in the suit.
The cause for the suit was stated to be the obstruction caused by the defendants when the plaintiff on 19.06.2009 was in the process of companystructing a wall on the eastern side.
The trial companyrt while answering the issues has held that the property is identifiable and the plaintiff is the owner in possession of the suit schedule property.
The plaintiff examined himself and relied upon the documents at Exhibits A1 to A6.
As numbered the lower appellate companyrt has set aside the judgement, remanded the matter and permitted the defendant to file the application under Order 41 Rule 27 CPC before the trial companyrt and has permitted the parties to tender further evidence so as to enable the identification of the plaint schedule property with the assistance of the Taluk Surveyor and thereafter arrive at Page 6 of 13 the companyclusion.
Page 2 of 13 The First Appellate Court on reappreciating the matter, through its judgment dated 31.03.2014 set aside the judgment dated 26.08.2011 passed by the trial companyrt in S. No.288/2009 and remanded the suit to the trial companyrt for fresh disposal in terms of the directions issued.
The Report of the Court Commissioner and the sketch were marked as Exhibits C1 and C1 a .
The High Court through its judgment dated 14.11.2014 has allowed the appeal and restored the judgment and decree passed by the trial companyrt.
The chronology of the events is that the plaintiff filed the suit bearing O.S. No.288/2009 in the Court of the Munsiff at Aluva seeking for judgment and decree of permanent prohibitory injunction in respect of the suit schedule property.
The defendant, therefore, claiming to be aggrieved is before this Court in this appeal.
In that circumstance, the High Court was of the opinion that the learned Judge of the lower appellate companyrt was number justified in arriving at the companyclusion that the property is to be measured on the basis of the title deed.
The defendant claiming to be aggrieved by the same preferred an appeal under Section 96 of Civil Procedure Code CPC for short in A.S. No.186/2011.
They will be referred accordingly.
In that light on answering the issues in favour of the plaintiff has decreed the suit.
Since the rank of the parties was described differently in the said proceedings the parties will be referred in the rank assigned to them in the trial companyrt in the original suit for the sake of companyvenience and clarity.
Since it was a remand in terms of order 41 Rule 23A CPC, the plaintiff preferred an appeal to the High Court in FAO RO No.229/2014 as companytemplated under Order 43 Rule 1 W of CPC.
Heard Shri P.A. Noor Muhamed, learned advocate for the appellant, Mr. C.N. Sreekumar, learned senior advocate for the respondent and perused the appeal papers.
In the appeal filed by the defendant the lower appellate companyrt while reappreciating the evidence has taken into companysideration the companytention put forth by the defendant with regard to the nature of Page 4 of 13 the property and the manner in which the property had been partitioned in the year 1964.
The nature of the incident is referred and, in that background, prayed for permanent prohibitory injunction.
In the appeal filed by the plaintiff before the High Court, the High Court on taking numbere that the suit was for perpetual injunction only and in that light since the possession of the plaintiff number being in serious dispute, Page 5 of 13 was of the opinion that the title to the property was number relevant.
Based on the rival pleadings the trial companyrt framed issues, the parties tendered evidence and the trial companyrt decreed the suit through its judgment dated 26.08.2011.
The Court had also taken numbere that in such circumstance the plaintiff had number made any effort to identify the property number was the defendant provided sufficient opportunity to prove their claim.
S. Bopanna,J. Leave granted.
Through the said judgment the High Court allowed the appeal, set aside the judgment dated 31.03.2014 passed by the First Appellate Court in AS No.186/2011 and restored the Signature Not Verified Digitally signed by MADHU BALA Date 2020.03.02 judgment and decree passed by the Trial Court in O.S. 163308 IST Reason Page 1 of 13 No.288/2009.
The defendant did number tender any evidence or produce documents.
Further it was companycluded that the suit was tried in a hurry without appropriately identifying the property along with its measurement.
In that view, the High Court has set aside the judgment of the lower appellate companyrt and restored the decree passed by the trial companyrt.
In that circumstance, the lower appellate companyrt on finding that the matter requires reconsideration had set aside the decree and remanded the matter.
The lower appellate companyrt also took numbere that an application in I.A. No.349/2013 had been filed by the defendant under Order 41 Rule 27 for producing the certified companyy of the Partition Deed No.651/1964.
The appellant herein is before this Court assailing the judgment dated 14.11.2014 passed by the High Court of Kerala in FAO RO No.229/2014.
The defendant appeared and filed detailed written statement disputing the claim of the plaintiff.
The brief facts are that the plaintiff claimed right in respect of the property bearing Resurvey No.371/5 old Survey No.517/7, 517/1 in Block 28 measuring 15 Are in Vadakkumbhagom, Aluva Taluk, Sreemoolanagaram Sub District, Ernakulam under a Partition Deed No.2617 of 2007 being a companysin of the defendant No.1, the fathers Page 3 of 13 of the plaintiff and defendant No.1 being brothers.
