IMPORTANT POINT
Suit for permanent prohibitory injunction – Matter can be remanded to Trial Court in case additional evidenced is required for just decision of the matter.

JUDGMENT

A.S. Bopanna, J.

Leave granted.

2. The appellant herein is before this Court assailing the judgment dated 14.11.2014 passed by the High Court of Kerala in FAO (RO) No.229/2014. Through the said judgment the High Court allowed the appeal, set aside the judgment dated 31.03.2014 passed by the First Appellate Court in AS No.186/2011 and restored the judgment and decree passed by the Trial Court in O.S. No.288/2009. Since the rank of the parties was described differently in the said proceedings the parties will be referred in the rank assigned to them in the trial court in the original suit for the sake of convenience and clarity. The appellant herein was the defendant, while the respondent herein was the plaintiff in the suit. They will be referred accordingly.

3. The chronology of the events is that the plaintiff filed the suit bearing O.S. No.288/2009 in the Court of the Munsiff at Aluva seeking for judgment and decree of permanent prohibitory injunction in respect of the suit schedule property. The defendant appeared and filed detailed written statement disputing the claim of the plaintiff. Based on the rival pleadings the trial court framed issues, the parties tendered evidence and the trial court decreed the suit through its judgment dated 26.08.2011. The defendant claiming to be aggrieved by the same preferred an appeal under Section 96 of Civil Procedure Code (?CPC? for short) in A.S. No.186/2011. The First Appellate Court on reappreciating the matter, through its judgment dated 31.03.2014 set aside the judgment dated 26.08.2011 passed by the trial court in O.S. No.288/2009 and remanded the suit to the trial court for fresh disposal in terms of the directions issued. Since it was a remand in terms of order 41 Rule 23A CPC, the plaintiff preferred an appeal to the High Court in FAO (RO) No.229/2014 as contemplated under Order 43 Rule 1(W) of CPC. The High Court through its judgment dated 14.11.2014 has allowed the appeal and restored the judgment and decree passed by the trial court. The defendant, therefore, claiming to be aggrieved is before this Court in this appeal.

4. The brief facts are that the plaintiff claimed right in respect of the property bearing Resurvey No.371/5 (old Survey No.517/7, 517/1 in Block 28 measuring 15 ?Are? in Vadakkumbhagom, Aluva Taluk, Sreemoolanagaram Sub District, Ernakulam under a Partition Deed No.2617 of 2007 being a cousin of the defendant No.1, the fathers of the plaintiff and defendant No.1 being brothers. The cause for the suit was stated to be the obstruction caused by the defendants when the plaintiff on 19.06.2009 was in the process of constructing a wall on the eastern side. The nature of the incident is referred and, in that background, prayed for permanent prohibitory injunction. The plaintiff examined himself and relied upon the documents at Exhibits A1 to A6. The Report of the Court Commissioner and the sketch were marked as Exhibits C1 and C1(a). The defendant did not tender any evidence or produce documents.

5. The trial court while answering the issues has held that the property is identifiable and the plaintiff is the owner in possession of the suit schedule property. In that light on answering the issues in favour of the plaintiff has decreed the suit. In the appeal filed by the defendant the lower appellate court while reappreciating the evidence has taken into consideration the contention put forth by the defendant with regard to the nature of the property and the manner in which the property had been partitioned in the year 1964. The Court had also taken note that in such circumstance the plaintiff had not made any effort to identify the property nor was the defendant provided sufficient opportunity to prove their claim. The lower appellate court also took note that an application in I.A. No.349/2013 had been filed by the defendant under Order 41 Rule 27 for producing the certified copy of the Partition Deed No.651/1964. Further it was concluded that the suit was tr