Sekharan Nambiar v. Ramanunni Nambiar — 1992 DIGILAW 26 (KER)

Judgment :- Defendants 13,15,16,42,44 to 51,54 and 55 are the appellants. The suit was for partition of the plaint B schedule property. 2. Briefly stated the plaintiffs case is as follows: The property belonged in jenm to the grand-mother of the plaintiff Chinna Appissi and her sister Kunchi Appissi and brother Kunhunni Nambiar and they were in possession of the plaint schedule property. On the death of Chinna Appissi, the property vested with the plaintiffs and defendants jointly and they are in joint possession and enjoyment. Defendants 13,42 and 52 sold some timber trees without the consent of the plaintiff and other defendants. So, a petition was filed before the police and the matter was amicably settled. But still, defendants 13,14 and 52 were making attempts to cut and sell trees. In the circumstances, plaintiffs sought a partition, but it was not heeded to by contending defendants. It is in these circumstances, the plaintiff sought for partition and separate possession of 1/56 share out of the plaint schedule B property. 3. Defendants I to 11 and 17 to 31 filed written statements admitting the plaint claim. 13th defendant filed written statement repudiating the contention of the plaintiff. Defendants 15, 16, 42, 43,44 and 55 also filed a written statement taking similar contention as that of the 13th defendant. The contesting defendants averred that the plaint B schedule property belonged in jenm to Koodallur Mana and under the Mana, Cherupara Madhathil Sankunni Nair and Raman Nair were holding the property. The 13th defendant obtained the lease hold right from Sankunni Nair and Raman Nair about 35 years back. In 1970, there was a partition in the thavazhi of the 13th defendant and the plaint schedule property was set apart to the shares of 15th and 16th defendants and they are in possession of the property. They also denied that the 1st defendant was the Karanavan of the tarwad consisting of plaintiffs and defendants and contended that even if the plaintiff had any right, that was lost by adverse possession and limitation. 4. They also denied that the 1st defendant was the Karanavan of the tarwad consisting of plaintiffs and defendants and contended that even if the plaintiff had any right, that was lost by adverse possession and limitation. 4. Issue No.1 framed by the trial court was "whether the property mentioned in the plaint was a thavazhi property in which the plaintiff and defendant have got right." So the area of controversy between the parties is whether the property belonged to the thavazhi of plaintiff and defendants or whether the contention of the contesting defendants that the lease hold right obtained by Sankunni Nair and Raman Naif vested in the 13th defendant and in a partition in the family of 13th defendant the property was allotted to 15th and 16th defendants. This question has been elaborately considered by the trial court. It came to the conclusion that there is absolutely no evidence to show the 13th defendant was holding the property for and on behalf of the tarawad. In that view the trial court held that the plaint B schedule property is not liable to be partitioned. The trial court did not think it necessary to consider the question of adverse possession and limitation in view of the above findings and no findings were entered on issues 2 to 7. On appeal, the learned Subordinate Judge set aside the finding and remanded the matter for fresh disposal after giving the parties an opportunity to amend the plaint. 5. In this appeal, learned counsel for contesting defendants vehemently contended that no grounds have been made out for remanding the matter. Though there is no specific plea in the plaint that the B schedule property belonged to the tarwad, the plaint proceeds on the basis that the property belonged to the tarwad consisting of plaintiffs and defendants and it is on that basis, the relief of partition was sought. Those defendants who supported the plaintiffs claim for partition have stated in the written statement that the property belonged to the tarwad. The entire focus was on the question whether the property is a tarwad property or whether 13th defendant obtained the lease hold right in the property for himself. All the parties joined issue on this and adduced evidence. Those defendants who supported the plaintiffs claim for partition have stated in the written statement that the property belonged to the tarwad. The entire focus was on the question whether the property is a tarwad property or whether 13th defendant obtained the lease hold right in the property for himself. All the parties joined issue on this and adduced evidence. However, the trial court came to the conclusion that the evidence adduced does not support the plea raised by the plaintiff that the property belonged to the tarawad. The appellate court has observed that the plaintiff has not specifically averred that the property is tarawad property. However, the plaint proceeds on the basis that it is tarawad property. The supporting defendants have specifically pleaded that the property belonged to Marumakkathaya family consisting of plaintiff and defendants. The finding of the trial court is not based on the ground that the plaintiff has failed to raise a specific plea that the property belonged to the tarawad. As a matter of fact, the trial court went into the question of family character of property and came to the conclusion on the basis of the materials on record that the evidence does not support the claim of the plaintiff that the plaint schedule property belonged to the thavazhi. As indicated above an issue was framed on the question whether property is a tarawad property or not. In the circumstances, I do not find any justification for the appellate court to remand the matter to enable an amendment of the plaint. Supreme Court has pointed out in Nedunuri Kameswaramma v. Satnpati Subba Rao (AIR 1963 SC 884) that when each party went to trial fully knowing the rival case and led all the evidence not only in support of its own contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case. In the instant case, not only the parties went to trial fully knowing the rival contention and led evidence, but a specific issue in regard to the question whether the property is a tarwad or not was also framed. In the circumstances, there is hardly any justification to remand the matter to enable the party to amend the plaint. In the instant case, not only the parties went to trial fully knowing the rival contention and led evidence, but a specific issue in regard to the question whether the property is a tarwad or not was also framed. In the circumstances, there is hardly any justification to remand the matter to enable the party to amend the plaint. It is not shown that because of the failure to specifically state that the property is a tarawad property in the plaint, any prejudice is caused to the plaintiff or the defendants who support the plaintiffs. Therefore, in my view, the order of remand passed by the lower court is fully unjustified. As pointed out by the Supreme Court in Civil Appeal 1610 of 1968 in India Army & Police Equipment v. Kanodia Brothers (1968 KLT SN.19) a first appeal is a re-hearing and if the parties have led all the evidence they desired, it is the duty of the First appellate Court to give its own conclusions upon the evidence before it. If a trial court does not properly understand the pleadings, it is for the appellate court to reverse the findings and give its own findings; again, if an issue has been decided by the trial court in a very perfunctory manner. But power to order retrial after remand, where there has already been a trial on evidence before the court of first instance, cannot be exercised merely because the appellate court is of the view that the parties who could lead better evidence in the court of first instance have failed to do so. 6. The foregoing discussion would show that the order of remand is unsustainable. The lower appellate court has not disposed of the case on merits. I, therefore, direct the lower appellate court to dispose of the case on merits. The parties will bear their respective costs. Appeal is allowed as above. The parties will appear before the lower court on 3rd March, 1992. Issue photo copy of this judgment on usual terms.