Proper adherence to procedural requirements in second appeals under Section 100 CPC is essential; remand orders must be supported by valid grounds as per Order 41 Rule.

ORDER :

1. Leave granted.

2. We have heard Mr. V. Chitambaresh, learned Senior Advocate, appearing on behalf of the appellants and Mr. Kaleeswaram Raj, learned Advocate, appearing on behalf of the respondent-original plaintiff.

3. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.10.2019 passed by the High Court of Kerala at Ernakulam in Regular Second Appeal No. 628 of 2011, by which the High Court has allowed the said Second Appeal and has remanded the matter to the learned trial Court by upsetting the concurrent findings of facts recorded by both the courts below and not only that but has also permitted the original plaintiff to amend the plaint and incorporate the prayer of fixation of the boundary, which was never prayed, the original defendant has preferred the present Appeal.

4. The Respondent herein filed a civil suit before the learned trial Court asking for a simple prayer of permanent injunction/prohibitory relief only. The learned trial Court framed the following issues:-

“1) Whether the plaintiff is having title and possession over the plaint schedule property?

2) Whether the plaint schedule properties are identified?

3) Whether the cause of action alleged is true?

4) Whether the plaintiff is entitled to get an injunction as prayed for?

5) Order as to Cost?

Additional Issue 6:-Whether the right of the plaintiff, if any, over the plaint schedule property is lost by adverse possession of the property by the defendants and limitation?”

Both the plaintiff as well as the defendant led the evidence. Even the plaintiff also took out a commission and the Advocate Commissioner submitted the report and the plan. It appears that the Advocate Commissioner inspected the property by availing the assistance of the Taluka Surveyor and the Village Assistant also. That thereafter, on appreciation of evidence, the learned trial Court held all the issues in negative and against the plaintiff and in favour of the defendant and consequently dismissed the suit. The first appeal against the judgment and order passed by the learned trial Court came to be dismissed. The findings recorded by the learned trial Court, therefore, came to be confirmed by the first Appellate Court.

5. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned trial Court as well as the first Appellate Court dismissing the suit for prohibitory injunction, the original plaintiff-respondent herein filed present Second Appeal under Section 100 of the CPC before the High Court. It appears that, while admitting the Second Appeal, the High Court formulated the following substantial questions of law:-

“1. When under B schedule of Ext.A1 partition deed, three taks of properties were allotted to the share of Lakshmi Amma and under Ext.A2 gift deed, the said B schedule properties were transferred in favour of the appellant, whether courts below were justified in holding that appellant has no title to the plaint schedule properties for the mis-description of the properties in Ext.A2.

2. Whether on the evidence, courts below were justified in holding that appellant did not establish possession of the plaint schedule property and therefore is not entitled to the decree for permanent prohibitory injunction.”

6. By the impugned judgment and order and without answering anything on the substantial questions of law framed/formulated, absolutely in a casual manner, the High Court has allowed the Second Appeal and has set aside the concurrent findings recorded by both the courts below and thereafter has remanded the matter to the learned trial Court permitting the original plaintiff to amend the plaint and pray for fixation of the boundary.

7. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the original defendants have preferred the present Appeal.

8. Having heard learned counsel for the respective parties and having gone through the impugned judgment and order passed by the High Court, we