Kunhianandan Nambiar v. Madhavi — 1997 DIGILAW 73 (KER)

JUDGMENT T. Ramachandran, J. 1. This appeal arises from the order of remand passed by the District Judge, Thalassery in AS No. 175/89 which arose from the judgment and decree of the Additional Sub Judge of Tellicherry in OS No. 69/84. 2. The appellant was the plaintiff in OS No. 69/84 before the Sub Court of Thalassery. He filed the suit for recovery of possession of the plaint schedule property on the strength of his title. The facts are that the plaint schedule property measuring 1.77 acres of land was a portion of item No. l of Ext. A1 marupat chit executed by one Kunhappa. He gifted his right in the year 1942 in favour of his wife and children as per Ext. B2 gift deed reserving life interest in his favour. Later the donees assigned their right in favour of one Pokken. Then Pokken attorned with his landlord and he was keeping possession of the plaint schedule property. Later in the year 1950 it was assigned in favour of the plaintiff. Kunhappa executed a cancellation deed regarding Ext. B2 gift deed. Thus it was alleged in the plaint that the jenm right of the property belonged to the plaintiff's tarwad and that the then karanavan Kunhikammaran Nambiar leased the plaint schedule property along with another item in favour of Kunhappa. The assignment by Pokken in favour of the plaintiff was dated 4.11.1950. Later as per a partition in the tarwad, the plaint schedule property was allotted to the plaintiff. The total extent in that survey number was 23 acres and 27 cents. Out of it 2 acres and 80 cents was allotted to the share of the plaintiff as item No. 3 in the share list. It included the plaintiff schedule property also. The defendants are in possession of the remaining extent shown in the marupat chit of Kunhappa. Defendants filed OA No. 2384/76 before the Land Tribunal of Kuthuparamba for purchase of the jenm right in the entire property without disclosing the plaintiff's title and possession. The name of the landlord shown was one Narendran Nambiar, who was one of the members of the plaintiff's tarwad. Thus purchase certificate was obtained on 13.8.1976. Then the defendants trespassed into the plaint schedule property. When the plaintiff came to know about the purchase certificate, he filed AA No. 1972 of 1978 before the appellate authority. The name of the landlord shown was one Narendran Nambiar, who was one of the members of the plaintiff's tarwad. Thus purchase certificate was obtained on 13.8.1976. Then the defendants trespassed into the plaint schedule property. When the plaintiff came to know about the purchase certificate, he filed AA No. 1972 of 1978 before the appellate authority. The appellate authority set aside the order of the Land Tribunal and remanded the matter to the Land Tribunal for fresh disposal. Thus the plaintiff filed the suit for recovery of possession of the plaint schedule property on the strength of his title. The defendants admitted that the plaint schedule property belonged to the tarwad of the plaintiff. Kunhappa was the husband of the first defendant and he was the father of the other defendants. The marupat chit executed by Kunhappa was on 16.11.1942. It was contended that Kunhappa was in possession of the property till his death in the year 1975. Thus on his death his right devolved on the defendants as his legal representatives. It was contended that the gift deed was executed for the benefit of the tavazhi. But according to the defendants Kunhappa continued possession of the property even after executing the gift deed. Pokken was the brother of the first defendant and Pokken managed to get assignment in his favour. When Kunhappa came to know about it he cancelled the assignment deed as well as the gift deed on the ground that the gift deed was a sham document and that it was not acted upon. Thus Kunhappa continued possession of the property covered by the marupat chit and he was paying the rent and revenue. The alleged assignment of the property by Pokken in favour of the plaintiff was denied. According to the defendants, the documents were created by the plaintiff to grab the plaint schedule property. According to them the plaintiff or his assignor was not in possession of the plaint schedule property. It was contended that the plaint schedule property was allotted to the share of Narendran Nambiar and after the partition on receipt of notice Kunhappa paid rent to Narendran Nambiar. Later the defendants purchased the jenm right through the Land Tribunal. It was admitted that the appellate authority remanded the matter and it was pending before the Land Tribunal. The plaintiff was the Adhikari of the Village for a long number of years. Later the defendants purchased the jenm right through the Land Tribunal. It was admitted that the appellate authority remanded the matter and it was pending before the Land Tribunal. The plaintiff was the Adhikari of the Village for a long number of years. Thus according to the defendants the plaintiff created document for the purpose of the suit and that it was not assigned on the defendants. Thus they denied the right of the plaintiff to recover possession of the plaint schedule property, and the defendants were in possession from 1942 onwards. They denied the liability to pay mesne profits. 3. After framing necessary issues the trial court examined PW 1 and DW 1 and marked Exts.A1 to A12 and Bl to B7. After hearing both sides the trial court considered the matter and held that the plaintiff had title over the plaint schedule property and that the plaintiff was entitled to recover possession. Thus the suit was decreed as prayed for. But the prayer for mesne profits was disallowed. Proportionate costs was allowed. Aggrieved by that judgment and decree appeal was filed before the District Court of Thalassery by the defendant as AA No. 175/89. The learned District Judge held that the additional issue regarding adverse possession and limitation was necessary. The court was of the opinion that additional evidence was necessary. The lower appellate court held that the plaintiff had got title over the property sought to be recovered. But as the aspect of adverse possession has to be considered, the suit was remanded allowing amendment of the written statement. Aggrieved by that remand order this appeal is filed by the plaintiff. 4. Counsel for both sides were heard. According to the learned counsel appearing for the appellant there was no necessity for remand and that the lower court went wrong in allowing amendment of the written statement. Thus according to him the question of adverse possession and limitation did not arise. The learned counsel contended that the cross objections filed by the respondents from the finding of title was not maintainable. 5. The points arising for consideration are: (1) whether the lower appellate court was justified in remanding the suit to the trial court; and (2) whether the cross objections filed by the respondents is maintainable. 6. The learned counsel contended that the cross objections filed by the respondents from the finding of title was not maintainable. 5. The points arising for consideration are: (1) whether the lower appellate court was justified in remanding the suit to the trial court; and (2) whether the cross objections filed by the respondents is maintainable. 6. Point No. 1 : Both sides admitted that the plaint schedule property belonged to Kunhappa in tenancy right and that Kunhappa died in the year 1975. The respondents are his legal representatives. Even though the respondents filed OA No. 2384/76 before the Land Tribunal of Kuthuparamba as evidenced by Ext. A11 and even though purchase certificate was granted, appeal was filed in the year 1978 and admittedly it was remanded to the land Tribunal. Thus learned counsel argued that the plaintiff got jenm right over the property. 7. It was also argued that the gift was not questioned. When the appeal was pending before the lower appellate court IA No. 940/90 was filed for amendment of the written statement and it was allowed. It was argued that the plaintiff made improvements and that itself would show that the plaintiff has got possession over the property. It was argued that the claim made by the alleged assignee was not true. It was argued that the lower appellate court ought to have considered the bona fide of the petitioner and the necessity to amend the written statement. It was further contended that there was no issue raised regarding adverse possession in the pleadings. Thus the learned counsel appearing for the appellants argued that there was no necessity for allowing amendment of the written statement. It was argued that the right of Kunhappa was only to collect the usufructs and as such it was the life interest reserved by him while executing the gift deed. On the basis of the decision reported in 1997 (1) KLT 69 (Sulaikha Beevi v. K. C. Mathew) it was argued that the litigating parties cannot adopt inconsistent pleas at different stages of the suit. Thus according to the learned counsel the plea of adverse possession was inconsistent with the earlier stand of the defendants in the written statement. On the basis of the decision reported in 1997 (1) KLT 69 (Sulaikha Beevi v. K. C. Mathew) it was argued that the litigating parties cannot adopt inconsistent pleas at different stages of the suit. Thus according to the learned counsel the plea of adverse possession was inconsistent with the earlier stand of the defendants in the written statement. In this context it is to be noted that the lower appellate court allowed amendment of the written statement in view of the admission of PW 1 that he had not entered in the plaint schedule property for the last 27 years. Thus the lower appellate Court felt that the admission of PW 1 may amount to absence of possession and that in that respect the defendant will be entitled to raise the question of adverse possession. It cannot be stated that the new plea taken by amendment of the written statement is inconsistent with their earlier stand. On the basis of the decision reported in AIR 1978 SC 798 (Haji Mohammed Ishaq v. Mohammed Iqbal and Mohamed Ali And Co.), it was argued that the nature of suit cannot be changed. It was also argued that a tenant cannot set up adverse possession against a landlord. Thus the learned counsel referred to the decision reported in AIR 1990 SC 553 (Achal Reddi v. Ramakrishna Reddiar). There it was held that the purchaser put in possession in pursuance of a contract of sale cannot contend that his possession was adverse. That decision is not applicable to the facts of the present case. Further it was argued that Kunhappa died only in the year 1975 and that the period of 12 years did not expire on the date of filing the suit. 8. These were all matters to be considered by the lower appellate court at the time of a decision on the additional issue regarding the adverse possession. The learned counsel argued that the lower appellate court should not have allowed the amendment. In support of this argument the learned counsel cited the decision reported in AIR 1984 SC 930 (Gaya Parshad Dikshit v. Dr. Nirmal Chander), wherein the apex court held that in a suit for possession of premises by owner against licensee on the mere termination of licence does not enable the licensee to claim adverse possession and he must assert hostile title in himself. Nirmal Chander), wherein the apex court held that in a suit for possession of premises by owner against licensee on the mere termination of licence does not enable the licensee to claim adverse possession and he must assert hostile title in himself. This decision is not applicable to the facts of the present case. Another decision cited by the learned counsel was as reported in 1991(1) KLT Short Notes 47, Case No. 66 (Damodara Poduval v. Sankar). This court held in that decision that the courts have to consider whether the proposed amendment is opposed to law or the amendment would work injustice to the opposite party. In that decision it was held further that in view of S.116 of the Evidence Act it is not open to a tenant to deny landlord's title and so the revision petitioner claiming leasehold right cannot claim adverse possession. In the light of this decision it is clear that the lower appellate court should not have allowed the amendment of the written statement. The remand allowed was only in the light of the amendment of the written statement. By the amendment the only sentence added in the written statement is that the right of plaintiff was lost by adverse possession and limitation. It is to be noted that no hostile title was asserted by the defendant. Further it is to be noted that he had only tenancy right. PW 1 did not state that he had no possession of the plaint schedule property for the past 26 years. What is stated was that he had not gone to the plaint schedule property for the last 26 years. It did not mean that PW 1 did not make any act of possession in the plaint schedule property. The learned counsel appearing for the respondents drew my attention to the decision reported in AIR 1969 SC 1267 (Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon). Considering the provision under O.6 R.17 and 153 and O.30 R.1 of CPC the apex court held that regarding the amendment of plaint the court had a discretion and that the amendment should not be refused on technical grounds. In the present case in the absence of necessary pleadings in the written statement the amendment sought for was not maintainable and as such the lower court should not have allowed the amendment. 9. In the present case in the absence of necessary pleadings in the written statement the amendment sought for was not maintainable and as such the lower court should not have allowed the amendment. 9. Point No. 2 : Cross objections were filed by the respondents on the finding of title made by the lower appellate court. The lower appellate court held that the finding of title passed by the trial court was correct. In this context the learned counsel appearing for the appellant submitted that no cross objection was maintainable. In this context the learned counsel referred to the provisions under S.104 of the CPC, O.43 R.1 and O.1 R.22 of CPC. His argument was that in an appeal filed under O.43 R.1 of CPC there was no scope for filing cross objections and that the remedy of the respondents was to file second appeal if they were aggrieved by any finding of the lower appellate court. But the learned counsel submitted that there was no decree passed by the lower appellate court. Thus it is clear that there was no ground for filing a second appeal. Thus the only remedy available to the respondents was to file another CMA. If not it will be argued later that the finding of the lower appellate court has become final as it was not challenged by the respondents. But as the CMP is already filed from the remand order, even without filing cross objections the respondents can urge the validity of the findings of the lower court against them. But this court cannot exercise inherent power under S.151 of CPC to review the remand order falling under S.105(2) of CPC as held by the apex court in the decision reported in AIR 1970 SC 997 (Nainsingh v. Koonwarjee). The apex court held that if an order is not appealed against its correctness is no more open to examination in view of S.105(2) of CPC and that the review of the remand order in exercise of inherent power is erroneous. In the decision reported in AIR 1985 Patna 287 (Naresh Ahir v. Barhiya), it was held that in an appeal against judgment of the trial court even if no cross objections or appeal is filed by the respondent challenging the trial court's finding against him, he can still assail that finding before the appellate court while supporting the decree. In the decision reported in AIR 1985 Patna 287 (Naresh Ahir v. Barhiya), it was held that in an appeal against judgment of the trial court even if no cross objections or appeal is filed by the respondent challenging the trial court's finding against him, he can still assail that finding before the appellate court while supporting the decree. The decision reported in AIR 1974 SC 1126 held that no appeal lies against a mere finding. This decision further held on the question of amendment under O.6 R.17 of CPC that the appellate court has got discretion to allow amendment at any stage and that discretion should be properly exercised in the interests of justice subject to the law of limitation. But a caution was given that the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court. Thus the apex court held that the High Court was wholly in error in allowing such a belated amendment when valuable rights had accrued to the decree holder by lapse of time. The learned counsel appearing for the appellant cited the decision reported in AIR 1928 Madras 420 (Jainul Abideen Marakayar v. Habibulla Sahib) and argued that an appeal from an order of remand is confined to the correctness of such order and no other question can be raised. But at the same time in this decision the Madras High Court held that neither party will be precluded from raising legitimate questions in any subsequent second appeal. With great respect I do not agree with that proposition of law and I hold that in an appeal from a remand order the respondents can challenge the findings of the lower appellate court. In the decision of the Full Bench of the. Madras High Court as reported in AIR 1941 Madras 530 (Secretary of State v. Allu Jagannadham) it was held that in an appeal pending before the High Court filed by the plaintiff, the defendant was not precluded from raising question of jurisdiction. In the decision reported in AIR 1926 Madras 475 (Seshammal v. Kuppanaiyyangar) the Division Bench held that in an appeal against an order of remand, the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal. In the decision reported in AIR 1926 Madras 475 (Seshammal v. Kuppanaiyyangar) the Division Bench held that in an appeal against an order of remand, the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal. Thus this decision goes to the effect that in the absence of an appeal the grounds in the judgment of the lower appellate court cannot be attacked. The same view was held later by the Madras High Court in the decision reported in AIR 1969 Madras 248 (Kaluvaroya Pillai v. Ganesa Pandithan). This decision further held that if the lower appellate Court substituted its own judgment and decree to that of the trial court and then remanded the case, the remedy was to file a second appeal and not an appeal under O.43 R.1 of CPC. Thus considering the decisions on point, I am of the view that the cross objections filed by the respondents is maintainable. 10. In the cross objections the respondents have attacked the finding of title entered into by the lower appellate court. As the matter is to be remanded to the lower appellate court for fresh consideration without amendment of the written statement, the finding regarding title is also left open to be decided afresh by the lower appellate court. For the above reason this appeal is allowed and setting aside the remand order of the lower appellate court the matter is remanded to the lower appellate court for fresh disposal in accordance with law. The parties are to appear before the District Court, Thalassery on 18.3.1997. The parties are to bear their costs. Send the lower court records with copy of this judgment to the District Judge, Thalassery immediately.