SEKHARAN NAMBIAR Vs. RAMANUNNI NAMBIAR

JUDGEMENT

(1.) DEFENDANTS 13,15,16,42,44 to 51,54 and 55 are the appellants. The suit was for partition of the plaint B schedule property.

(2.) BRIEFLY stated the plaintiffs case is as follows: The property belonged in jenm to the grand-mother of the plaintiff Chinna Appissi and her sister Kunchi Appissi and brother Kunhunni Nambiar and they were in possession of the plaint schedule property. On the death of Chinna Appissi, the property vested with the plaintiffs and defendants jointly and they are in joint possession and enjoyment. Defendants 13,42 and 52 sold some timber trees without the consent of the plaintiff and other defendants. So, a petition was filed before the police and the matter was amicably settled. But still, defendants 13,14 and 52 were making attempts to cut and sell trees. In the circumstances, plaintiffs sought a partition, but it was not heeded to by contending defendants. It is in these circumstances, the plaintiff sought for partition and separate possession of 1/56 share out of the plaint schedule B property.

(3.) IN this appeal, learned counsel for contesting defendants vehemently contended that no grounds have been made out for remanding the matter. Though there is no specific plea in the plaint that the B schedule property belonged to the tarwad, the plaint proceeds on the basis that the property belonged to the tarwad consisting of plaintiffs and defendants and it is on that basis, the relief of partition was sought. Those defendants who supported the plaintiffs claim for partition have stated in the written statement that the property belonged to the tarwad. The entire focus was on the question whether the property is a tarwad property or whether 13th defendant obtained the lease hold right in the property for himself. All the parties joined issue on this and adduced evidence. However, the trial court came to the conclusion that the evidence adduced does not support the plea raised by the plaintiff that the property belonged to the tarawad. The appellate court has observed that the plaintiff has not specifically averred that the property is tarawad property. However, the plaint proceeds on the basis that it is tarawad property. The supporting defendants have specifically pleaded that the property belonged to Marumakkathaya family consisting of plaintiff and defendants. The finding of the trial court is not based on the ground that the plaintiff has failed to raise a specific plea that the property belonged to the tarawad. As a matter of fact, the trial court went into the question of family character of property and came to the conclusion on the basis of the materials on record that the evidence does not support the claim of the plaintiff that the plaint schedule property belonged to the thavazhi. As indicated above an issue was framed on the question whether property is a tarawad property or not. IN the circumstances, I do not find any justification for the appellate court to remand the matter to enable an amendment of the plaint. Supreme Court has pointed out in Nedunuri Kameswaramma v. Satnpati Subba Rao (AIR 1963 SC 884)that when each party went to trial fully knowing the rival case and led all the evidence not only in support of its own contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case. IN the instant case, not only the parties went to trial fully knowing the rival contention and led evidence, but a specific issue in regard to the question whether the property is a tarwad or not was also framed. IN the circumstances, there is hardly any justification to remand the matter to enable the party to amend the plaint. It is not shown that because of the failure to specifically state that the property is a tarawad property in the plaint, any prejudice is caused to the plaintiff or the defendants who support the plaintiffs. Therefore, in my view, the order of remand passed by the lower court is fully unjustified. As pointed out by the Supreme Court in Civil Appeal 1610 of 1968 in INdia Army & Police Equipment v. Kanodia Brothers (1968 KLT SN. 19) a first appeal is a re-hearing and if the parties have led all the evidence they desired, it is the duty of the First appellate Court to give its own conclusions upon the evidence before it. If a trial court does not properly understand the pleadings, it is for the appellate court to reverse the findings and give its own findings; again, if an issue has been decided by the trial court in a very perfunctory manner. But power to order retrial after remand, where there has already been a trial on evidence before the court of first instance, cannot be exercised merely because the appellate court is of the view that the parties who could lead better evidence in the court of first instance have failed to do so.