APPUKUTTAN NAIR Vs. SADASIVAN NAIR

JUDGEMENT

(1.) An order of remand was passed in a suit for fixation of boundary by the first appellate court after setting aside the decree and judgment of the trial court on the simple reason that the property of the defendants was not scheduled in the plaint. The first appellate court has committed a grave error in the exercise of jurisdiction. In a suit for fixation of boundary, it is not at all necessary to schedule the property of the defendants firstly, on the ground that the extent, survey number and other details showing the property of the defendants may not be available to the plaintiff. Secondly, for fixing the boundary of the plaintiff's property, it is not at all necessary to schedule the property of the defendants. It is really not a ground of attack or a valid reason to set aside the judgment and decree of the trial court. The first appellate court has committed a grave mistake by applying a proposition that in a suit for fixation of boundary, the description of properties of both the parties (plaintiff and defendants) should be included in the plaint as separate schedules by relying on a decision rendered by this Court in Nandakumara Varma and another v. Usha Varma and Another (2015 (1) KLJ 73) by extracting paragraph 6 of the said judgment, which is extracted below for reference:

(2.) It is only a casual observation made by this Court and no adjudication was rendered on that point. Hence, it would constitute only an obiter dicta and not a ratio decidendi and it will not have any binding precedent. There is no provision anywhere in the C.P.C. mandating incorporation of property of the defendants as plaint schedule. But, for the sake of convenience, the plaintiff may incorporate the property of the defendants also as a schedule to the plaint. That does not mean that in order to maintain a suit on immovable property and even in the case of fixation of disputed boundary, the plaintiff has to schedule the property of the defendants as a separate schedule to the plaint. No such mandate can be gathered from any provisions in the law in force.

(3.) Yet another grave mistake in the exercise of its jurisdiction has also been committed by the first appellate court. The first appellate court did not understand the jurisdiction vested with it while ordering remand. It can be exercised in accordance with the mandate under Rule 23, 23 A and 24 of Order XLI C.P.C. Without adhering to the abovesaid provisions, the first appellate court has adopted an easy walk over by ordering reverse driving, that too, without any sufficient reason and without attending the dispute involved. Hence, the said practice is highly deprecated. The jurisdiction to be exercised by the first appellate court while ordering remand has been settled and summarised by this court in Gopalakrishnan and Another v. Ponnappan and Others (2021 (5) KHC 548). Very recently, the very same legal position has been settled by the Apex Court in Nadakerappa Since Deceased by Lrs. & Ors. v. Pillamma Since Deceased by Lrs. & Ors. (2022 LiveLaw (SC) 332). Earlier, the Apex Court in Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (1988 KHC 882) had settled the legal position pertaining to the jurisdiction vested with the first appellate court while ordering remand. All these legal position settled has been overlooked by the first appellate court. Hence, the order of remand is hereby set aside. The parties shall appear before the first appellate court on 23/05/2022. The first appellate court shall dispose of the appeal within three months thereafter in accordance with the law in force. The appeal is allowed accordingly. No costs. The Registry is directed to send a copy of this judgment along with a copy of the impugned order to the Director (Academics), Kerala Judicial Academy for future guidance.