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Kizhakke Neliyarambath Rafeek, Rep. by Power of Attorney Holder, K.N. Nizar & Others v/s Thavararakkattil Choyikutty Master & Another


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    R.S.A. No. 39 of 2021

    Decided On, 08 September 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Appellant: K.I. Mayankutty Mather, T.K. Sreekala, Advocates. For the Respondents: Dr. V.N. Sankarjee, Advocate.



Judgment Text

1. Common questions of law and fact arise in the above appeals and, therefore, this Court deems fit and proper to consider the above appeals jointly.2. R.S.A.No.39/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.14/1997 of the Additional District and Sessions Court, Vatakara (hereinafter referred to as 'the first appellate court') which arose out of the judgment and decree dated 21.12.1996 in O.S.No.163/1989 of the Munsiff's Court, Koyilandy (hereinafter referred to as 'the trial court'). The appellant herein is the plaintiff. The respondents herein are the defendants 1 and 3. The suit was for declaration of easement right and injunction.3. R.S.A.No.64/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.20/1997 of the Additional District and Sessions Court, Vatakara which arose out of the judgment and decree dated 21.12.1996 in O.S.No.216/1989 of the Munsiff's Court, Koyilandy. The appellants herein are the defendants. The respondent herein is the plaintiff. The suit was for permanent prohibitory injunction.4. On trial, treating O.S.No.163/1989 as the leading case, on the side of the plaintiff PWs.1 to 4 were examined and marked Exts.A1 to A8 and on the side of the defendants, DWs.1 to 4 were examined and marked Exts.B1 to B5 documents. Advocate Commissioner's report and plan were marked as Exts.C1 to C5.5. After the trial, O.S.No.163/1989 was decreed in favour of the plaintiff and dismissed O.S.No.216/1989 by virtue of the common judgment and decree dated 21.12.1996. The defendants in O.S.No.163/1989 challenged the judgment and decree by preferring A.S.No.14/1997. The 1st defendant in O.S.No.163/1989, who is the plaintiff in O.S.No.216/1989, filed A.S.No.20/1997 against the common judgment and decree in O.S.No.216/1989. The Additional District and Sessions Court, Vatakara considered both the appeals together and dismissed the same by the common judgment and decree dated 20.06.2005. The defeated defendants in O.S.No.163/1989 and the plaintiffs in the other suit carried the matter in appeal in R.S.A.No.848/2005 and R.S.A.No.850/2005. By the common judgment dated 18.6.2019 this Court allowed the appeals in part setting aside the common decree and judgment. The matter was remanded back to the first appellate court with the following directions:-“Both the trial court and the first appellate court decreed the suit in terms of the plaint declaring the prescriptive right of easement over B schedule way and by granting permanent prohibitory injunction. But the legal position settled by this court in Cherootty @ Balan v. Velayudhan Nair [1998(1) KLJ 479] regarding the user of the ridge between the paddy field or ridge lying adjoining to the paddy field neither considered nor adjudicated by both the courts below. The question user 'as of right' should be addressed necessarily based on the decision rendered by this court in Cherootty’s case. The legal position was subsequently reiterated in several decisions of this court including the decision in R.S.A.No.626/2008 dated 11/01/2010 drawn in K.Sarojini v. Poondath Gopalakrishnan and S.A.No.425/2014 dated 03/06/2014 drawn in Paulson v. Rajesh and another. The omission to consider the above said legal position based on the factual issue involved in the case is fatal to the decision rendered by both the trial court and first appellate court. Ext.C3 rough sketch revealed the landed property lying on either side of the way partly as paddy field partly as ‘kuni' which stands for partly reclaimed paddy field. The above said question requires consideration by the first appellate court for that purpose, the decree and judgment of trial court and the first appellate court are hereby set aside. Appeal is allowed in part accordingly. The matter is remanded back to the first appellate court.”6. After remand, the first appellate court allowed A.S.No.14/1997 and dismissed O.S.No.163/1989 of the Munsiff's Court, Koyilandy. A.S.No.20/1997 was allowed in part. Consequently, O.S.No.216/1989 was decreed in part granting a permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property or committing any waste or damage thereto and from interfering with the possession of the plaintiff therein in any other manner. Hence this second appeal. The parties are hereinafter referred to as referred in O.S.No.163/1989 unless otherwise stated.7. Before adverting to the evidence on record, it is appropriate to state the facts of the cases. O.S.No.163/1989 was the leading case before the trial court. The plaint A schedule property originally belonged to the grandfather of the plaintiff. He gifted his property to the father of the plaintiff who was in physical possession of the property. Since the father of the plaintiff was employed abroad, the plaintiff was in possession as a licensee under his father. The plaint B schedule property is a pathway leading to A schedule property and the house therein. It starts from the southern boundary of plaint A schedule property and reaches the main road of Kodassery-Cheekkilode. The pathway runs through the property owned by the defendants. The said property situates on the south of plaint A schedule property. It is stated that the plaintiff and the predecessors have been uninterruptedly using the plaint B schedule pathway for the last 40 years as of right and thereby they have acquired easement right of prescription over the same. The plaintiff has constructed a compound wall on the southern side of the plaint A schedule property giving an opening where the plaint B schedule pathway enters the plaint A schedule property. The house in the plaint A schedule property is facing south. It is alleged that the defendants have been making attempt to block the plaint B schedule pathway. Hence the plaintiff filed the suit seeking to restrain the defendants by way of decree for permanent prohibitory injunction.8. An Advocate Commissioner was appointed after the institution of the suit. When the commissioner filed the report, the plaintiff filed an application to amend the plaint in accordance with the commission report. Accordingly, the plaint was amended alleging that after passing the interim order of injunction, the defendants removed the ridge ('varambu') along BC line shown in the Commissioner's plan which is the plaint B schedule pathway. Thus, the plaintiff sought additional reliefs of declaration and mandatory injunction for the removal of illegal construction.9. The defendants resisted the suit contending that the plaint B schedule property is not a pathway as alleged. They also contended that the plaintiff or his predecessors have no right over the plaint B schedule pathway. According to them, the pathway to the plaint A schedule property is through the western side of the plaint A schedule property. It is alleged that he put up a compound wall on the southern side of the A schedule property giving a gap in the middle just to make it appear that he has access to the plaint A schedule property from the property of the defendants. When the plaintiff made an attempt for making a passage, it was further alleged that, the defendants constructed a small compound wall on the Northern boundary of their property. Alleging that the plaintiff demolished a part of the boundary wall on 20.6.1989, the 1st defendant filed O.S.No.216/1989. It was alleged that the compound wall on the north of the defendants' property was put up long before 20.1.1989. It was further alleged that the wall along the AB line noted by the Commissioner was also constructed long before the suit.10. Heard Sri.K.I.Mayankutty Mather, the learned counsel for the appellants and Dr.V.N.Sankarjee, the learned counsel for the respondents.11. As indicated earlier, by the common judgment dated 18.6.2019, this Court remanded back the case to the first appellate court to consider the question regarding the user of the ridge between the paddy field or ridge lying adjoining to the paddy field in the light of the decision in Cherootty @ Balan v. Velayudhan Nair [1998 (1) KLJ 479]. It was certainly a restricted remand. Thus, the scope of the remand having been expressly restricted, the parties to the appeal were precluded from raising any other issue or matter travelling beyond the scope of remand. The order of remand has become final. Accordingly as ordered by this Court, the first appellate court considered mainly two points:-i) Has the plaintiff in O.S.No.163/1989 proved user of plaint B schedule property as of right for the required period of 20 years and thereby prescribed to a right of easement over the same?ii) Is the plaintiff in O.S.No.216/1989 not entitled to a prohibitory injunction as prayed for?12. On a reading of the common judgment of the first appellate court dated 18.6.2019, this Court is of the view that the court correctly analysed the points for consideration in the impugned judgment. The first appellate court mainly arrived at the following conclusions:-(i) The plaint A schedule in O.S.No.163/1989 is the dominant tenement and the plaint schedule property in O.S.No.216/1989 is the servient tenement. The servient tenement is not scheduled as such in O.S.No.163/1989. The pathway claimed by the plaintiff therein alone is scheduled as schedule 'B'. In a suit for easement right, the servient heritage and dominant heritage must be shown in the plaint as separate schedules.(ii) Ext.C1 report of the commissioner would show that dominant heritage is on the north of servient heritage. On the south of servient heritage, there is a road. The pathway claimed by the plaintiff is said to be commencing from this road and reaching up to his property. Existence of a 'nadavaramba' or mud ridge across the servient heritage is admitted by the 1st defendant when he was examined as DW1. He constructed a granite stone bund by replacing the erstwhile mud ridge. The claim of the plaintiff is over the mud ridge which existed earlier. When the commissioner inspected the properties for the first time, the mud ridge was not there. Instead a newly constructed granite stone bund was found. Hence the first appellate court entered a finding that in all probabilities, on the eve of the suit, there existed a mud ridge or a nadavaramba in the servient heritage.(iii) In Ext.C1 report, it was specifically stated that the property of the defendants in O.S.No.163/1989 (servient heritage) is a paddy field. In Ext.A1 title deed of the plaintiff's father, the southern boundary of the said property is a paddy field. In Ext.B1 title deed of the 1st defendant, which pertains to servient heritage, the property is described as a paddy field. Further, the defendants in O.S.No.216/1989 admitted that the plaint schedule property is a paddy field and there existed a ridge on its eastern side on south-north direction. Therefore, the first appellate court held that the servient heritage was a paddy field and the plaintiff claimed right of way through the ridges between the paddy fields.(iv) Later, the paddy field was reclaimed and when the suit was filed that part was a garden land. The first appellate court held that there was no evidence to prove when the part of the paddy field was reclaimed. Analyzing the evidence, the first appellate court held that the alleged reclamation does not change the character of the paddy field and ridges between them.(v) The evidence adduced by the PWs.1 to 4 are not helpful to the plaintiff to prove the user of the ridge as of right. PW1 was aged 20 years when the suit was filed. Hence he was incompetent to prove the user of the ridge for a continuous period of 20 years.(vi) There is no evidence to show that PW1's predecessors used the ridge as an easement. The best evidence would have been that of his father or mother or any other elderly people. However, they were not examined.(vii) Easement right is a precarious right claimed over the property of another person. Being a precarious right, the burden is on the part of the plaintiff to prove ingredients under Section 15 of the Easement Act. The plaintiff has not discharged his burden.(viii) Following the legal principles in Cherootty @ Balan's case (supra), it was held that by travelling or using the ridges of a paddy field one does not acquire the right of easement by prescription unless of course it is later on converted into a road. It is a common feature in Indian Villages that people generally pass over the ridges between two paddy fields which can only be termed as permissive.(ix) Since there is evidence to show that the compound wall constructed by the plaintiff in O.S.No.216/1989 was demolished so as to make an entry to the plaint schedule property in the said suit, the said suit was decreed by the first appellate court granting a permanent prohibitory injunction.13. The learned counsel for the appellants contended that the first appellate court bluntly applying the ratio settled in Cherootty @ Balan's case (supra) and decided the case at hand overlooking the cardinal principles regarding the applicability of judicial precedents. It was further contended that the correctness and legality of an order of remand by this Court does not attain finality and can be subsequently re-agitated before the court to which appeal is filed against the order passed on remand.14. Per contra, the learned counsel for the respondents contended that the first appellate court meticulously considered the entire matter in detail and decided the case based on the evidence on record. The learned counsel for the respondents further contended that the jurisdiction of the High Court being confined to a substantial question of law, findings of facts are not open to challenge in second appeal even if the appreciation of evidence is palpably erroneous and the finding of facts incorrect. According to the learned counsel for the respondents, no question of law is involved much less any substantial question of law.15. A learned Single Judge of this Court remanded the cases to the first appellate court directing the first appellate court to consider the matter in the first appeal in accordance with the restricted order of remand. The question, therefore, arising for consideration is as to whether the remand order operates as a legal bar and preclude the remanding court from re-opening it at the subsequent stage of the same continuing proceedings even when the findings underlying the remand order have been concluded between the parties.16. Ordinarily, the decision once recorded, whether an issue of fact or law, is conclusive and binding on the parties. This is a rule of procedure based on sound public policy to prevent the harassment of the litigants, avoid waste of time of the courts and to keep the confidence of litigants in the machinery of justice unimpaired. In the very nature of things, however, when such order or finding is recorded at the stage of remand, the order happens to be interlocutory and cannot finally terminate the case and the litigation. The possibility of the litigation coming up before the remanding court at another stage cannot be ruled out. Generally, such orders would be conclusive and binding on the parties like any other interlocutory order. The matters finally disposed of by the order of remand cannot, any of them, be re-opened, when the case comes back before this Court in the second round from the first appellate court but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, it is open to a court of coordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again on appeal from the judgment after remand. Judicial propriety warrants that finding of a court of co-ordinate jurisdiction on certain points made earlier by remanding the case, deserves to be respected and therefore, this Court cannot go beyond the earlier decision rendered. In other words, this Court is not justified in sitting in appeal over an earlier judgment of the court of co-ordinate jurisdiction which has become final.17. It cannot be disputed that the order of remand would become final if not attacked by an appeal and it cannot be challenged in the appeal from the decree after remand. (See State of Kerala v. Thomas [1984 KHC 193] and Kunhammed v. Pathumotti [1984 KLT 1055].)18. Where a suit is remanded under Order 41 Rule 23 or Order 41 Rule 23A of the CPC, the whole suit is reopened and the questions on which the trial court may have recorded its findings may be re-agitated except as to matters decided expressly or impliedly by the order of remand. When an appellate court remands the case for further inquiry, the lower court has to act within the limits of the remand order. It cannot reopen the finding of the appellate court; if it does so, it exceeds the limits of its jurisdiction. Acting contrary to the order of remand is against law.19. It is a well settled law that an order of remand cannot be passed by the second appellate court as a matter of course. One will have to make out a case for remand of the case to show if any material evidence was either ignored, misread or misconstrued by the first appellate court.20. Sub-section (2) of Section 105 of the CPC provides that where any party is aggrieved by an order of remand from which an appeal lies and does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. However, when an order of remand is illegal, and more so, if it is without jurisdiction, the appellant shall not be precluded from disputing its correctness in the second

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appellate jurisdiction. Where an appeal is actually filed by the appellant and has been disposed of and the said decision has become final, it cannot be re-agitated at a subsequent stage either before the first appellate court to which the case was remanded or before this Court in second appeal.21. It is clear from the order of remand passed by this Court that the first appellate court was directed to decide the case in accordance with the directions issued by this Court as provided under Order 41 Rule 23A of the CPC. Finality attached to the litigation on the above point debars the appellant from contending that the appellant is at liberty to challenge the earlier order of remand in this appeal. It is not the realm of the second appellate court to adjudicate upon a different kind of dispute, i.e., a dispute that was never taken before the first appellate court after remand.22. The question as to whether the appellant is entitled to a declaration of easement by prescription over the plaint schedule property has been decided against the appellant by the first appellate court based on pleadings and evidence. The first appellate court examined the evidence on record at length and arrived at a reasoned conclusion that the appellant is not entitled to get an easement right as claimed in the suit. This finding is based on binding documents of title, commission report, pleading of the parties and other proved circumstances. With due respect to the learned counsel for the appellant, neither of the two questions canvassed before this Court is a question of law, far less a substantial question of law. The conclusion of the first appellate court regarding the entitlement of the appellant to get an easement right by prescription over the plaint schedule pathway does not warrant interference in this second appeal.For the aforesaid reasons, the appeals must fail and are dismissed. There will be no order as to costs. Pending applications, if any, stand closed.
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