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CASE NO.: Appeal (civil)  3023 of 2006

PETITIONER: HAMEED (D) BY LRS. & ORS.

RESPONDENT: KUMMOTTUMMAL KUNHI P.P.AMMA(D)BY LRS&ORS

DATE OF JUDGMENT: 18/07/2006

BENCH: Dr. AR. LAKSHMANAN & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (arising out of SLP(C) No.13712/2003)

Dr. AR . Lakshmanan, J.

Delay condoned. Leave granted.         Heard Mr. P. Krishnamoorthy, learned Senior Counsel for the appellants  and Mr. M.K.S. Menon, learned counsel for the respondents.         This appeal is directed against the final order/judgment dated 12.7.2002  in A.S. No.624 of 1994 passed by the High Court of Kerala, whereby the High  Court, after setting aside the decree and judgment of the courts below,  remanded the matter back to the trial court for reconsideration.  The LRs. of 5th  defendant are the appellants before us.  The respondents filed the suit for  recovery of possession on the strength of title of the plaint schedule property  from the possession of defendants 4 to 6 and for partition of the same among  the tavazhi members and also for prohibitory injunction and damages.  The  defendants including defendant no.5 resisted the suit contending that the title  and possession of the property is with them and if at all the title of the  property is found to be with the plaintiffs,  the same is lost by adverse  possession and limitation.  Witnesses were examined on both sides.  The  contesting defendants produced about 41 documents showing the derivation of  title and possession of the property with them.         The Trial Court holding that the respondents-plaintiffs failed to prove  title and the defendants, the appellants herein, are in continuous and  uninterrupted possession of the suit property, dismissed the suit with costs to  the contesting defendants.  On appeal by the plaintiffs, the High Court  remanded the matter back to the Trial Court for reconsideration.         We have perused the order passed by the High Court.  While remitting  the matter, the High Court has not indicated as to what question of facts and  law are required to be assessed and the circumstances upon which the High  Court found itself unable to decide the matter.           Aggrieved by the order passed by the High Court, the LRs. of  5th defendant preferred the above appeal in this Court.  Mr. P.  Krishnamoorthy, learned Senior Counsel, submitted that the High  Court was not justified in remanding the matter back to the Trial  Court for reconsideration with liberty to adduce further evidence  without entering into a finding that the judgment and decree are  erroneous and without considering the case on merit, in view of  Order 41, Rule 23A of the Code of Civil Procedure.  He would further  submit that the High Court was not justified in remanding the  matter without indicating as to what question of law and facts are  required to be decided and why remand is necessited?  Per contra,  Mr. M.K.S. Menon, learned counsel for the respondents, submitted  that the order of remand passed by the High Court is perfectly in  order and that the High Court after satisfying that it is a case  whereby the parties are given sufficient opportunity to adduce  evidence, both documentary and oral, and remanded  the matter and  therefore no interference is called for with the judgment passed by

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the High Court.  We are unable to countenance the submissions  made by the learned counsel for the respondents.          The Trial Court in paragraph 16 of its judgment held as follow:         "Apart from Ext.A1 and A2 which are the copies of adangal  registers, no other documents are produced by the plaintiffs to  show that they or their predecessors have got title to the plaint  schedule property.  During cross-examination the 7th plaintiff  who is examined as PW.1 stated that the property originally  belonged to Kummottungal tarwad and the tarwad gave it to the  tavazhi of Kalliani Pillari Amma.  It is on the basis of this that  the jama was transferred in the name of Kalliani Amma.  But he  could not state how the tarwad got right over the property."

       It is seen from the judgment passed by the Trial Court that apart from  Ext.A1 and A2, which are the copies of adangal registers, no other documents  are produced by the plaintiffs  to show that they or their predecessors have got  title to the plaint schedule property.   This apart, the plaintiff was given  sufficient opportunity to produce the documents.  In spite of opportunity, no  other documents were filed and in the circumstances, we are of the opinion  that the High Court should not have remanded the matter with liberty to  produce documents in order to fill lacuna in the evidence.         We, therefore,  set aside the order passed by the High Court and remit  the matter to the High Court for consideration of appeal before it on merits   only on the materials already on record.  The High Court will dispose of the  appeal without being influenced by any of the observations made by us in this  appeal.  The Civil Appeal stands disposed of with no orders as to costs.