Kerala High Court
Linu Varghese vs George Jacob on 26 May, 2025
FAO (RO) NO.3/2024 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
FAO (RO) NO. 3 OF 2024
ARISING OUT OF THE JUDGMENT & DECREE DATED 29.09.2023
IN AS NO.13/2022 OF SUB COURT, CHENGANNUR
ARISING OUT OF THE JUDGMENT & DECREE DATED 04.08.2022 IN
OS NO.198/2020 OF MUNSIFF COURT,CHENGANNUR
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 LINU VARGHESE
AGED 43 YEARS
S/O. LATE V.V. VARUGHESE, VATTAPPARAMBIL
PUTHENVEETTIL HOUSE, PAVUKARA.P.O., PAVUKARA
MURI, KURATTISSERY VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
2 SUSY VARUGHESE ALIAS SOSAMMA VARGHESE
AGED 69 YEARS
W/O. LATE V.V. VARGHESE, VATTAPPARAMBIL
PUTHENVEETTIL HOUSE, PAVUKARA.P.O.,PAVUKARA MURI,
KURATTISSERY VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
3 LEENA VARUGHESE
AGED 46 YEARS
D/O. LATE V.V. VARUGHESE, AALELIL HOUSE,
PRAYIKKARA.P.O., MAVELIKKARA VILLAGE,
ALAPPUZHA DISTRICT, PIN - 689622
BY ADVS.
LIJU.V.STEPHEN
INDU SUSAN JACOB
P.M.HRIDYA
TAJ K. TOM
FAO (RO) NO.3/2024 2
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RESPONDENT/APPELLANT/PLAINTIFF:
GEORGE JACOB
AGED 71 YEARS
S/O. LATE V.G.CHACKO, VATTAPPARAMBIL HOUSE,
PAVUKKARA.P.O., PAVUKKARAMURI, KURATTISSERY
VILLAGE, CHENGANNUR TALUK,
ALAPPUZHA DISTRICT, PIN - 689622
BY ADVS.
R.GIREESH VARMA
V.K.NANDAKUMARAN
K.P.SREEKUMAR
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING
BEEN FINALLY HEARD ON 26.05.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 26th day of May, 2025
This appeal is filed challenging the judgment and decree dated
29.09.2023 in A.S.No.13 of 2022 on the files of the Sub Court,
Chengannur, which is filed against the judgment and decree dated
04.08.2022 in O.S.No.198 of 2020 of the Munsiff's Court,
Chengannur. Appellants herein were the defendants in the said suit
and the respondent was the plaintiff therein.
2. Two suits, viz., O.S.No.198 of 2020 and O.S.No.199 of
2020, filed by relatives against each other were considered by the
Munsiff Court, Chengannur. The dispute inter alia concerned the
width of a pathway. A counterclaim too had been raised in OS No.
198 of 2020. The learned Munsiff dismissed both suits as well as the
counterclaim vide common judgment dated 04.08.2022. An appeal,
A.S.No.13 of 2022 was filed before the Sub Court, Chengannur
challenging the judgment and decree in O.S.No.198 of 2020. No
appeal was filed challenging the judgment and decree in O.S.No.199
of 2020 or from the dismissal of the counterclaim in O.S.No.198 of
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2020. The Sub Court, Chengannur, disposed of A.S.No.13 of 2022
remanding the case back to trial court granting opportunity to both
sides to adduce fresh evidence. The said judgment in A.S.No.13 of
2022 is challenged in this appeal.
3. O.S.No.198 of 2020 was initially filed for injunction
simplicitor. It sought to restrain defendants from reducing the width
of item No. 3 pathway and from causing any manner of obstruction
to vehicular traffic to the plaint schedule item No.1 property through
the plaint schedule Item No.3 pathway. Later it was amended and a
comprehensive relief of declaration of easement by grant over plaint
schedule item No.3 pathway, to recover item No.4 after removing all
obstruction and also to restore plaint schedule item No.3 into its
original position from the date of the suit and mandatory injunction
were incorporated.
4. Heard Sri.Liju V. Stephen, Advocate on behalf of the
appellants (defendants) and Sri.K.P.Sreekumar, Advocate on behalf
of the respondent (plaintiff).
5. Before proceeding to consider the respective contentions
of the parties, the brief facts as contended by the plaintiff is as
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follows:
Plaintiff as well as the defendants got their respective
properties from their predecessors. Their grandfather had executed
a registered Will in 1962 which came into effect in 1968. The building
situated in the plaint schedule item No.1 is the ancestral house,
which was constructed as early as 60 years ago by the grandfather.
As per the Will, the plaint schedule item No.1 was bequeathed to the
plaintiff's father. The 1st defendant's father was bequeathed the
property on the western and northern side of plaint schedule item
No. 1 property. Later, in the year 1995 plaintiff's father executed a
settlement deed and thereby plaint schedule item No. 1 vested in the
plaintiff. Plaintiff is thus in absolute possession and enjoyment of the
plaint schedule item No. 1 property and he is residing in the
ancestral house with his family. By virtue of the same settlement
deed, Plaintiff was also vested with a paddy field lying on the
northern side of the plaint schedule Item No. 1 property. Plaint
schedule item No.2 property is owned by the defendants. It is
situated on the western side of plaint schedule item No.1. A
panchayat road situated on the western side of the plaint schedule
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item No.2 property. From the said Panchayat Road a pathway
commences which is lying through the northern side of the entire
family property and on the south of the northern paddy field. The
said pathway has been used for ingress and egress of heavy
vehicles to plaint schedule item No.1 property since the time of the
late grandfather itself. The width of the pathway was however not
specified in the said Will. It was being used by the plaintiff's
predecessor, including grandfather, to reach the building situated in
plain schedule item No.1 property. At the time of execution of the
Will in 1962, the grandfather had incorporated right over the pathway
leading to plaint schedule Item No.1 property towards the western
Panchayat road. Said pathway is lying on the northern side of the
plaint schedule item No.2 property having an average width of 10
feet and length of approximately 100 feet and was widened to an
average 10 to 11 feet through the plaint schedule item No.2 property.
Subsequent to the death of the grandfather, the defendants' father
had constructed a boundary wall along the pathway. Thus the
pathway mentioned in the Will itself was to augur to the benefit the
plaintiff. It is the width of the said pathway which is scheduled as
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plaint schedule item No.3 property, that has now become the
subject matter of the suit. The right over the plaint schedule item
No.3 pathway was regulated by a grant on the basis of the will deed.
The plaintiff and his predecessors have been using the plaint
schedule item No.3 pathway without any obstruction for more than
40 years in continuation of the grant. However, offlate the
defendants had been trying to obstruct the plaint schedule item No.3
pathway and the vehicular traffic through the same in spite of the fact
that they have their own direct access to the Panchayat road on the
western side. They have no manner of right to obstruct the peaceful
enjoyment of plaint schedule item No.3 pathway by the plaintiff and
his family. Hence the suit was laid praying for relief as mentioned
above.
6. In the written statement, filed by the defendants they
contended that plaint schedule item No.3 pathway is passing
through plaint schedule item No.2 property and that the pathway
had only a width of two to three feet and was only a naattuvazhi.
Even as per the will of the grand father, the width of the pathway is 3
feet and it does not have a width of 10 or 11 feet as contended by
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the plaintiff. None of the documents including the Will supports the
claim of the plaintiff. No vehicles were ever driven through the plaint
schedule item No.3 pathway as alleged in the plaint. During the
lifetime of the grandfather of the plaintiff and the defendants, plaint
schedule item No.3 pathway was never used for taking any vehicles
The said pathway was being used to park defendants' tractor and
other agricultural implements, and also to store the paddy crops at
the time of harvesting. It was the 3 feet wide pathway through plaint
schedule item No.2, which was being used by the plaintiff and his
father as also by the grandfather earlier. If the plaintiff is permitted to
widen the plaint schedule item No.3 pathway, it will cause irreparable
hardship to the defendants and inconvenience to their agricultural
activities. A counterclaim was also raised by the defendants seeking
a permanent prohibitory injunction to restrain the plaintiff from
widening the pathway provided through the property and from plying
vehicles along the said pathway and from causing any damage to
the property of the defendants.
7. During the pendency of the suit, the interim injunction/
status quo that had been granted in the suit was subject matter of
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contention from both sides. While the plaintiff alleged obstruction and
putting up of structures by the defendants to reduce the width of the
path way as well as obstruction at the bell mouth, the defendants
inter alia alleged that on the strength of the injunction/ status quo the
plaintiff had for the first time started plying vehicles through the
pathway and thereby potentially damaging the boundary of the
defendants' property. That due to the interim order, the defendants
are not in a position to make cultivation on the Northern portion of
the plaint schedule item No 3 which is a paddy field was also
alleged. Plaintiff alleged and sought relief for recovery of plaint
schedule item No.4 property and restoration of plaint schedule item
No. 3 to its original position.
8. After the due amendment and filing of additional written
statements, issues were framed in OS 198/2020 and 199/2020 and
the parties proceeded to trial. PW1 was examined from the side of
the plaintiff and Exts.A3 and A5 were marked. DW1 was examined
from the side of the defendants and Ext.B2 was marked. Some
documents produced by the parties were marked subject to proof
while some other documents were not marked.
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9. After hearing both sides, the learned Munsiff inter alia
concluded that there is no dispute between the parties regarding the
existence of pathway through plaint schedule item No.2 property and
that the only variance was regarding the width of the pathway. It was
found that since the claim of the plaintiff is an easement by way of
express grant, the plaintiff ought to have produced the will deed.
Neither the original will deed nor its certified copy had been
produced and the photocopy which had been produced was not
legible for which reason it was not admitted in evidence. Holding
inter alia that since the easement in the case was by way of an
express grant as no document had been produced to prove the
same, the plaintiff had failed to prove that he got the right of
easement by grant to the property of the defendants to use the
pathway as a motorable and hence O.S.No.198 of 2022 filed by the
plaintiff was dismissed. It was held that in the absence of the
document to prove the same, the plaintiff had not succeeded to prove
that the right of vehicular traffic along the plaint schedule item No.3 is
implied in the grant. As regards the counter claim and O.S.No.199 of
2020 filed by the defendants the same were also dismissed.
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10. In the appeal, which was filed only against the judgment in
O.S.No.198 of 2020, the First Appellate Court found that neither
party had disputed the existence of a pathway and only the width of
the pathway was disputed. The First Appellate Court concluded in
paragraph 18 as follows :
"18. The survey commission report and plan were
marked as Ext.C6 and C6(a). From the said commission
reports it can be seen that the survey number of plaint
schedule item No.1 property belonging to the plaintiff is
118/8 and the survey No. of plaint schedule item No.2
property through which plaint schedule item No.3 pathway
is alleged to be passing through is 118/2. The survey
number of defendants northern nilam which is not at all
scheduled as a suit property is 118/3. The said
commission report made it clear that the disputed
pathway having width of 19.5 feet at the starting point and
subsequently varied the width from 15 to 7.8 feet is
passing through Survey Number 118/2 as well as 118/3 of
the defendants property. It probablized the contention of
the defendants that the width of the pathway claimed by
the plaintiff by making subsequent amendment in the
plaint includes the portion of mud bund or the portion of
northern nilam. It is also noted that the plaintiff in the
plaint does not claim any easement right through the
pathway in Survey No.118/3 of the defendants and the
said property was not scheduled in the plaint. So the
width of the pathway lying in Survey No.118/2 has to be
deduced so as to identify the pathway lying in Survey No.
118/3 which is shown as plaint schedule item No.2
property through which easement right by way of grant is
claimed. But the Commissioner did not care to identify
specifically the length and width of the pathway passing
through the plaint schedule item No.2 property. The
measurement mentioned at the starting point is not at all
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tally with the finding of the Commissioner that the total
width of the starting point of the disputed pathway is 19.5
feet. The commissioner and surveyor were not examined
as witness so as to clarify the said contradictions in C6
report and C6 (a) plan. So Ext.C6 series are not sufficient
to identify the exact length and width of the disputed
pathway passing through plaint schedule item No.2
property. The learned counsel for the plaintiff at the time
of hearing stated that they did not get sufficient
opportunity to examine the commissioners during trial due
to the time limitation prescribed by Hon'ble Appellate
Court." (Emphasis supplied)
11.The First Appellate Court thus concluded that the plaintiff
should be given an opportunity to take steps to adduce evidence, so
as to identify the plaint schedule item No.3 pathway in plaint
schedule item No.2 property as the Commissioners did not care to
identify the same even though several commission reports were
obtained in the said case. It is thus holding that the First Appellate
Court allowed the appeal by remanding back the suit alone for fresh
disposal.
12. Pursuant to the order in IA No. 3 of 2024 in this FAO, an
Advocate Commissioner had been appointed by this court and a
report dated 19.06.2024 had been submitted by the Advocate
Commissioner. It had been inter alia stated in the said commission
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report that while entering from the Panchayat road from the western
side, it could be found that the width of the pathway at the beginning,
that is the western end,- the Bellmouth portion, is 4.72 meters, (15.5
feet), and that the pathway is at its widest at this portion. It had been
stated in the Advocate Commissioner's report that the pathway starts
from the Panchayat Road on the western side and ends at the
plaintiff's property with residential building on the east. The pathway
is approximately 3.45 meters wide ( that is approx. 11.31 feet) at the
eastern end where it meets the plaintiff's gate. The plaint schedule
pathway lies in between the defendant's property (nilam) on the
north and the defendant's residential property (with house) on the
southern side. It has been stated that in fact the plaint schedule
pathway is sandwiched in between two properties belonging to the
defendants. The report further states that the northern nilam
belonging to the defendants lies at a lower level when compared to
the plaint schedule pathway. The level difference varies at different
places and at some places there is a level difference of almost one
metre. It has been reported by the advocate commissioner that there
is a clear level difference throughout between the properties. The
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northern end of the plaint schedule pathway is lying in a slanting
manner towards the northern nilam of the defendants. It had also
been stated in the report that the plaint schedule pathway is an
unpaved pathway which is approximately hundred feet long. The
current width of the pathway is such that four-wheelers such as car
or heavy vehicles cannot ply on the said pathway due to lack of
adequate width. The report has stated that the width of the pathway
in the middle of the pathway was found to be 2.40 meters (approx.
7.87 feet) from the compound wall on the western side of the
pathway to the line of plants and trees found on the eastern end of
the pathway. It is relevant to note that the Advocate Commissioner
has in her report stated that the exact identification of all the plaint
scheduled properties as per title deeds could not be done without the
assistance of the surveyor and as such it was not done. Further, it
has been stated that the defendant did not make available the will
which was the basis for their contention. Thus as per the commission
report, the width of the path way is having ranges from 3.45 meters
(that is approx. 11.31 feet) at the eastern end, 2.40 meters (approx.
7.87 feet) at the middle of the pathway and 4.72 meters, (15.5 feet)
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at the western end, the Bellmouth portion, 4.72 meters, (15.5 feet).
Of Course this has been arrived at with the caveat that the exact
identification of all the plaint scheduled properties as per title deeds
could not be done without the assistance of the surveyor. However
for the limited purpose of this appeal, the Commission report gives
some prima facie indicators regarding the width.
13. The learned counsel for the appellant has suggested the
following questions of law in this FAO (RO) for consideration:
"a. Whether the Lower Appellate Court erred in allowing
the appeal and remanding the case for filing up the lacuna
of the plaintiff's case, which is against the provisions of
Order 41 Rule 23 of C.P.C.?
b. Whether the lower appellate court ought to have found
that in the facts, circumstance and evidence in the case
the plaintiff failed to establish that the width of the plaint
schedule item Nos.3 and 4 pathway was beyond 3 feet
pathway, especially when the fact remains that the width
of the 'nattuvazhy' at the time of grant of right of way in
the year 1962 was only 3 feet ?
c. Whether the lower appellate court failed to consider the
fact that the Will Deed No.2/1962 is an undisputed
document and that it was upon the failure of the
respondent to prove by cogent evidence that the original
width of the plaint schedule pathway was more than 3 feet
that the respondent's suit was dismissed, hence whether
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the Lower Appellate Court erred in remanding the case for
denova trial for enabling the respondent to adduce an
undisputed document ?"
It is the contention of the learned counsel appearing for the appellant
(defendant) that the First Appellate Court erred in remanding the
matter back. He submits that the court ought to have dismissed the
appeal. There was no cause or reason to direct a remand. None of
the mandates of Order 41 Rule 23 had been complied with while
ordering remand. Reliance has been placed by the counsel on the
dictum reported in Sirajudheen v. Zeenath [2023 (2) KHC 577] to
contend that the scope of remand in terms of Order 41 Rule 23 is
very limited and that an Order for remand cannot be passed on the
ipse dixit of the court. Relying on the dictum in Pavizhamma v.
Mangalamma [2024 (1) KHC 325] it was contended that in the
matter of easement by grant the parties are governed by the terms of
the grant and not anything else. Easement of necessity and quasi
easement are dealt with in Section 13 of the Act. The grant may be
express or even by necessary implication in either case. It will not
amount to an easement of necessity under Section 13 of the Act
even though it may also be an absolute necessity for the person in
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whose favour the grant is made. Availability of alternative way also
would not defeat the right of easement by grant. Limit of the
easement acquired by grant is controlled only by the terms of the
contract. If the terms of the grant restricts its user subject to any
condition, the parties will be governed by those conditions. Anyhow,
the scope of the grant could be determined by the terms of the grant
between the parties alone. As regards the propriety of the order of
remand, pointing to the dictum laid down in P. Purushottam Reddy
and another v. M/s.Pratap Steels Ltd. [2002 KHC 1159] the
learned counsel contended that an appellate court should be
circumspect in ordering a remand when the case is not covered by
Order 41 Rule 23 or Rule 23A or Rule 25 of the CPC. An
unwarranted order of remand gives the litigation an undeserved
lease of life and therefore must be avoided. Reliance was also
placed on the dictum in Thayyil Gopalan and others v. Thayyil
Madhavi and others [2018 (5) KHC 871] and N.K.Mohd. Sulaiman
Sahib v. N.C.Mohd. Ismail Saheb and others [1966 KHC 498] in
support of the contentions put forth by the learned counsel for the
defendants.
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14. Per contra, the learned counsel appearing for the plaintiff
(respondent in the F.A.O.) submitted that both the parties claim
under the common ancestor. The wording in the Will does not
mention the width of the pathway. The word used is vazhi which can
only mean way. The term 'vazhi' has been used deliberately and
ambiguously, so as to meet the felt necessities of the times. Even
though the appellant would contend that it had only 3 feet, there is
no material whatsoever to evidence the same and such a width has
not been mentioned in the Will document. It has been put forth in
evidence that a plaintiff has a car and that he had taken the car
through the pathway into his property. It is also brought out in
evidence that for his daughters' marriage as well as on the death of
his father, vehicles have plied through the way. The substantial
evidence shows the use of the vehicle. The learned counsel also
relies on the Advocate Commissioner's report appointed by the High
Court. He further contends that the Will could have been produced
by the defendants as well.The learned counsel vehemently contends
that the Will had been produced only for a collateral purpose and so
there was no need to produce the original. The learned Munsiff
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erred in concluding that the Will ought to be produced and proved as
envisaged under the Evidence Act and the Succession Act. He had
further contended that in so far as the counterclaim had not been
pursued further, there is a res judicata since it has been abandoned
by the defendants. The evidence with respect to the width has been
lacking and hence it was valid and proper on the part of the First
Appellate Court to direct a remand and the retrial. In support of the
remand and regarding the factual aspects noted in the
commissioners reports, reliance is placed on the dictum laid down in
Chandan Mull Indra Kumar and others v. Chiman Lal Giridhar
Das Parekh and another [(1940) 42 Bom LR 387] wherein the
principle to be adopted in dealing with Commissioner's report had
been quoted as follows:
"Inference with the result of a long and careful local
investigation, except upon clearly defined and sufficient
grounds, is to be deprecated. It is not safe for a court to
act as an expert, and to overrule the elaborate report of a
commissioner, whose integrity and carefulness are
unquestioned. whose careful and laborious execution of
his task was proved by his report, and who had not blindly
adopted the assertions of either party."
The following reference from the Law of Easements and Licences,
B.B. Katiyar, Eleventh Edn. 1993, p. is brought to my notice by the
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learned counsel for the plaintiff:
"Gale in his well-known treatise, Gale on Easements,
1950 edition, pp. 72-73, stated as follows:
It may, however, be shortly stated that, in construing the
grant or other instrument whereby the easement is
created and the document itself, and that only, can, in the
first instance, be looked at to discover the extent and
nature of the easement and the other terms of the grant.
if, on the face of the document, no doubt arises that the
words are used in their primary sense, and if, read in that
sense, they are plain and unambiguous, the matter is
concluded no further evidence of any kind can be
admitted to show that the document does not or was not
intended to create the easement in the exact terms of the
primary meaning which the words bear but if on the face
of the document it appears that the words may be used in
some sense other than that which they would naturally
bear or if there is some ambiguity or omission apparent in
the document itself, then the circumstances existing at the
time when the instrument was executed may properly be
considered."
The following quotation in the same context was also brought to my
notice by the learned counsel:
"Waterpark (Lora) v. Fennel was referred to and applied
by the court of appeal in the Sharon Ltd. v. Fennell Ltd.
where the question at issue viz., the ascertainment of the
dominant tenement to which the right of way was attached
in terms of the grant really turned upon the true
construction of the grant. The words employed therein not
being clear and definite as to the real intention of the
parties at the time of the grant. The decision of the full
court was that, as the relevant words of the conveyance
were not clear in their meaning, the court was entitled to
consider the surrounding circumstances and as part of
them, evidence was admissible that the purchasers under
the conveyance, the plaintiffs had certain plans for the use
of the land conveyed which were communicated to the
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vendor before the conveyance."
My attention is also invited to the dictum laid down in Madhavan
Pillai v. Ebrahim [1964 KHC 92]; Damayanthi v. Theyyam & Ors.
[1979 KHC 25]; Tikaram v. Besru [AIR Online 2024 HP 958].
15. I have heard both sides in detail and have considered the
contention put forth. The precedents relied on by both sides were
also pursued. Since the challenge put forth is against an order of
remand by the first appellate court, it is relevant to remind myself of
Order 41 Rule 23 and 23 A which read as follows :
"23. Remand of case by appellate court : - Where
the court from those decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the appellate court may,
if it thinks fit, by order remand the case, and may
further direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its
judgment and order to the court from whose decree the
appeal is preferred, which directions to readmit the suit
under its original number in the register of civil suits
and proceed to determine the suit ; and the evidence (if
any) recorded during the original trial shall subject to all
just exceptions be evidence during the trial after
remand.
23A:- Remand in other cases :- Where the court from
whose decree an appeal is preferred has disposed of
the case otherwise than on a preliminary point, and the
decree is reversed in appeal and a re-trial is
considered necessary, the Appellate Court shall have
the same powers as it has under Rule 23." "
While explaining the scope of Rules 23 and 23-A of Order 41 CPC,
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in Municipal Corporation, Hyderabad v. Sunder Singh [(2008) 8
SCC 485] the Hon'ble Supreme Court has observed as under: -
"32. A distinction must be borne in mind between diverse
powers of the appellate court to pass an order of remand.
The scope of remand in terms of Order 41 Rule 23 is
extremely limited. The suit was not decided on a
preliminary issue. Order 41 Rule 23 was therefore not
available. On what basis, the secondary evidence was
allowed to be led is not clear. The High Court did not set
aside the orders refusing to adduce secondary evidence.
33. Order 41 Rule 23-A of the Code of Civil Procedure is
also not attracted. The High Court had not arrived at a
finding that a retrial was necessary. The High Court again
has not arrived at a finding that the decree is liable to be
reversed. No case has been made out for invoking the
jurisdiction of the Court under Order 41 Rule 23 of the
Code.
34. An order of remand cannot be passed on ipse dixit of
the court......" (Emphasis added)
In P. Purushottam Reddy (supra) it has been held that if the
superior court finds that the judgment under appeal has not disposed
of the case satisfactorily in the manner required under Order 20 Rule
3 or Order 11 Rule 31 of the CPC and hence it is no judgment in the
eye of law, it may set aside the same and send the matter back for
rewriting the judgment so as to protect the valuable rights of the
parties. With the amendment in 1976, Rule 23A has been inserted in
Order 41, which provides for a remand by an appellate court hearing
an appeal against a decree if twin conditions are met. (i) The trial
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court disposed of the case otherwise than on a preliminary point and
(ii) The decree is reversed in appeal and a retrial is considered
necessary.
In Sanjay Kumar Singh v. State of Jharkhand [(2022) 7 SCC 247]
in the context of additional evidence, the Hon'ble Supreme court held
as follows:
"7. It is true that the general principle is that the
appellate court should not travel outside the record of
the lower court and cannot take any evidence in
appeal. However, as an exception, Order 41 15 Rule
27 CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also be
true that the appellate court may permit additional
evidence if the conditions laid down in this Rule are
found to exist and the parties are not entitled, as of
right, to the admission of such evidence. However, at
the same time, where the additional evidence sought to
be adduced removes the cloud of doubt over the case
and the evidence has a direct and important bearing on
the main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be
permitted on record, such application may be allowed.
Even, one of the circumstances in which the production
of additional evidence under Order 41 Rule 27 CPC by
the appellate court is to be considered is, whether or
not the appellate court requires the additional evidence
so as to enable it to pronounce judgment or for any
other substantial cause of like nature.
8. As observed and held by this Court in A. Andisamy
Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713],
the admissibility of additional evidence does not
depend upon the relevancy to the issue on hand, or on
the fact, whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but it
depends upon whether or not the appellate court
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requires the evidence sought to be adduced to enable
it to pronounce judgment or for any other substantial
cause. It is further observed that the true test, therefore
is, whether the appellate court is able to pronounce
judgment on the materials before it without taking into
consideration the additional evidence sought to be
adduced." (Emphasis added)
In Sirajudheen (supra) this court had in the context of remand and
additional evidence sought to be adduced, held that the admissibility
of additional evidence does not depend upon the relevancy to the
issue on hand or on the fact whether the applicant had an
opportunity for adducing such evidence at an earlier stage or not, but
it depends upon whether or not the appellate court requires the
evidence sought to be adduced to enable it to pronounce judgment
or for any other substantial cause.
16. As could be culled out from the precedents above, the
true test therefore is whether the appellate court is able to pronounce
judgment on the materials before it without taking into consideration
the additional evidence sought to be adduced. I find merit in the
finding of the learned Sub Judge that though the original will had not
been produced before the trial court and the plaintiff could not prove
the same by examining attesting witness to the Will deed, the same
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cannot be considered as a patent defect so as to dismiss the suit.
The most clinching aspect in this respect in the case at hand is that
the easement by grant over the plaint schedule item No. 3 pathway
on the strength of the will was an admitted fact. The Sub court was
correct in concluding that an admitted fact need not be proved.
Hence in the facts and circumstances as stood admitted, the trial
court ought not have concluded that the plaintiff failed to adduce the
will so as to prove his easement by grant. It is also relevant to note
that the defendants had also admitted that the width of the plaint
schedule item No.3 pathway was not mentioned in the Will deed. I
find merit in the conclusion arrived at by the First Appellate Court
that in such a factual scenario, the trial court ought to have found
that the suit is for declaration of right of easement by grant over
plaint schedule item No. 3 pathway and for recovering its portion and
for mandatory injunction as well as prohibitory injunction and hence
the plaintiff ought to have been given an opportunity to take steps to
adduce evidence so as to identify the plaint schedule item No.3
pathway in plaint schedule item No. 2 property especially since the
advocate commissioners had not cared to identify the same. The
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commissioner and the surveyor had not been examined as
witnesses so as to clarify the contradictions in the commission
reports and the plan. The same are not sufficient to identify the exact
length and width of the disputed pathway passing through the plaint
schedule item No 2 property. That the plaintiff at the time of hearing
also did not get sufficient opportunity to examine the advocate
commissioners during trial due to the time limitation was also taken
note of by the first appellate court. The First appellate court has thus
reversed the decree and have arrived at a finding that a retrial was
necessary. Failure to consider an issue of non-joinder of a necessary
party was also noted by the first appellate court. Upon these, I
reckon that a valid circumstance existed for invoking the jurisdiction
under Order 41 Rule 23 A of the Code. In the above discussed facts
and circumstances, the remand is valid and proper and meets the
test as laid down in Sirajudheen (supra). Further as held in
Pavizhamma (supra) the scope of the grant could be determined by
the terms of the grant between the parties alone. The Will and its
terms thus assume relevance. The remand for the reasons stated
elaborately by the Sub court in the judgment under appeal cannot
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thus be said to be out of place or unnecessary. As noted in P.
Purushottam Reddy (supra) the mandates of Order 41 Rule 23A
are very clear. The twin mandates have been met in the case of the
plaintiff, so as to justify a remand.
17. In the facts and circumstances revealed, it cannot be
termed that the remand was for filing up the lacuna of the plaintiff's
case as alleged by the defendants. The remand allowed is valid and
falls within the ambit of law. The first Appellate Court had correctly
allowed the appeal and had remanded the case. As regards the
factual questions concerning the evidence regarding the width of the
plaint schedule item Nos.3 and 4 the same are to be left open to be
decided by the trial court in remand after the tendering of fresh
evidence. The questions suggested for consideration in this FAO
(RO) are thus answered in terms above.
In view of the above discussion, there is no reason to interfere
with the judgment and decree dated 29.09.2023 in A.S.No.13 of
2022 of the Sub Court, Chengannur. The FAO (RO) fails and it is
only to be dismissed. It is clarified that none of the factual
observations made herein above, including the measurements prima
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facie arrived at by the Advocate Commissioner in the report
submitted to this court shall bind, preclude or stand in the way of the
trial court appreciating the matter afresh on evidence and in arriving
at due conclusions based on the same, as directed in the judgment
and decree dated 29.09.2023 in A.S.No.13 of 2022 of the Sub Court,
Chengannur .
FAO (RO) dismissed. No costs.
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
2025:KER:35973
APPENDIX OF FAO (RO) 3/2024
RESPONDENT ANNEXURES
Annexure R1 CERTIFIED COPY OF THE PLAINT IN THE SUIT
Annexure R2 CERTIFIED COPY OF THE COMMISSION REPORT
FILED BY THE COMMISSIONER WHO VISITED
THE PROPERTY IMMEDIATELY AFTER THE
FILING OF THE SUIT DATED 13-4-2012
Annexure R3 CERTIFIED COPY OF THE COMMISSION REPORT
AS PER IA 2/2020 DATED 30-9-2020
Annexure R4(a) TRUE COPY OF THE PHOTOGRAPH TAKEN
EARLIER SHOWING THE ORIGINAL CONDITION
OF THE WAY BEFORE COMMITTING WASTE BY
THE DEFENDANT
Annexure R4(b) TRUE COPY OF THE PHOTOGRAPH TAKEN
EARLIER SHOWING THE ORIGINAL CONDITION
OF THE WAY BEFORE COMMITTING WASTE BY
THE DEFENDANT
Annexure R4(c) TRUE COPY OF THE PHOTOGRAPH TAKEN
EARLIER SHOWING THE ORIGINAL CONDITION
OF THE WAY BEFORE COMMITTING WASTE BY
THE DEFENDANT
Annexure R5(a) TRUE COPY OF THE PHOTOGRAPH TAKEN
RECENTLY SHOWING THE DEPLORABLE
CONDITION OF THE SCHEDULED WAY
Annexure R5(b) TRUE COPY OF THE PHOTOGRAPH TAKEN
RECENTLY SHOWING THE DEPLORABLE
CONDITION OF THE SCHEDULED WAY
Annexure R5(c) TRUE COPY OF THE PHOTOGRAPH TAKEN
RECENTLY SHOWING THE DEPLORABLE
CONDITION OF THE SCHEDULED WAY
PETITIONER ANNEXURES
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Annexure A1 A TRUE COPY OF THE REPRESENTATION DATED
08/02/2019 MADE BY THE APPLICANT TO THE
R.D.O, CHENGANNUR
Annexure A2 A TRUE COPY OF THE DOCUMENTS RECEIVED
UNDER RTI DATED 13.08.2024
Annexure A3 A TRUE COPY OF THE PHOTOGRAPHS OF THE
PLAINT SCHEDULE ITEM NO.1 PROPERTY
