AMMINI Vs. ANEES

JUDGEMENT

(1.) Appeal is directed against the order of remand passed by the learned Additional Sub Judge, North Paravur in A.S. No. 59/2003 setting aside the decree and judgment in O.S. 638 of 1998 of the Munsiff Court, Aluva. Plaintiffs in whose favour a decree of mandatory injunction was passed in the suit by learned Munsiff, which was set aside in appeal remanding the case for fresh disposal, have filed this appeal. Suit was for declaration and recovery of possession. Plaintiffs, four in number, claimed that they are the wife and children of late Kumaran who had been allotted plaint schedule property in koottukrishi farm, which was later assigned in his favour issuing a patta. Third defendant who is not a legal heir of Kumaran, but, claiming to be his wife, under the influence of second defendant executed a sale deed over the above property in favour of third defendant was their case to seek a declaration that such registered sale deed is void and for recovery of property on the strength of their title. Defendants resisted the suit disputing the status of plaintiffs as wife and children of Kumaran. They contended that third defendant is the legally wedded wife of Kumaran and that she has every right to execute the sale deed which was impeached in the suit. Suit filed three years after the execution of the sale deed was barred by limitation, according to them. Trial Court entering a finding that the relief of declaration canvassed is barred by limitation, passed a decree of mandatory injunction in favour of plaintiffs directing defendants to deliver possession of plaint property within the time limit fixed. That decree was challenged in appeal by defendants in which they moved two applications, one for reception of additional evidence and the other for amending their written statement. Allowing both those applications first appellate court set aside the decree of trial court and remitted the case for fresh disposal.

(2.) After hearing the counsel on both sides and looking into the judgments rendered by two courts below with reference to the records of the case I find that where decree passed by trial court was faulty what has been done by first appellate court in allowing the amendment of written statement of defendants (appellants), receiving additional evidence in appeal and, remitting the case for fresh disposal, was egregiously faulty. By way of amendment to the written statement defendants wanted to set forth a new case conflicting and contradictory to the defence stated in their previous written statement and to support the case newly advanced by amendment number of documents were produced as additional evidence. On the facts involved in the case I find discussion over the findings made by trial court and also the first appellate court is not at all warranted as it is noticed that the rival claims set up by plaintiffs and third defendant over the plaint property as legal heirs of late Kumaran, with both first plaintiff and third defendant claiming to be his legally wedded wife, the suit could not have been entertained by the Munsiff Court. Exclusive jurisdiction to entertain a suit or proceeding between parties with respect to the properties of the spouses or either of them is conferred only on the Family Court constituted under the Family Courts Act, 1984. Where right over the plaint property is claimed by plaintiffs as the wife and children of late Kumaran and it is disputed by third defendant claiming to be his legally wedded wife any dispute thereof can be adjudicated only by the Family Court and the suit filed before the Munsiff Court was not entertainable for want of jurisdiction. Similar is the case of the order of remand, passed by the first appellate court and also its orders allowing amendment of written statement and reception of additional evidence. The case has to be remanded to the Trial Court for return of the plaint to the proper court having jurisdiction to entertain the suit. Orders passed by first appellate court allowing amendment of written statement of defendants shall stand set aside. I make it clear that none of the findings made by the two courts would cause prejudice to any of the parties in adjudicating the rival claim canvassed by them over plaint property. Plaintiffs will also be entitled to have exclusion of time under S. 14 of the Limitation Act; the period during which the suit was prosecuted as there is nothing to indicate that they were not bona fide prosecuting their claim. It is also open to plaintiffs to seek amendment of the plaint for a fair adjudication of the disputes involved, if so advised.