Point of Law: Where a suit is remanded under Order 41 Rule 23 or Order 41 Rule 23A of the CPC, the whole suit is reopened and the questions on which the trial court may have recorded its findings may be re-agitated except as to matters decided expressly or impliedly by the order of remand. When an appellate court remands the case for further inquiry, the lower court has to act within the limits of the remand order. It cannot reopen the finding of the appellate court; if it does so, it exceeds the limits of its jurisdiction.

JUDGMENT :

Common questions of law and fact arise in the above appeals and, therefore, this Court deems fit and proper to consider the above appeals jointly.

2. R.S.A.No.39/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.14/1997 of the Additional District and Sessions Court, Vatakara (hereinafter referred to as 'the first appellate court') which arose out of the judgment and decree dated 21.12.1996 in O.S.No.163/1989 of the Munsiff's Court, Koyilandy (hereinafter referred to as 'the trial court'). The appellant herein is the plaintiff. The respondents herein are the defendants 1 and 3. The suit was for declaration of easement right and injunction.

3. R.S.A.No.64/2021 is directed against the judgment and decree dated 7.3.2020 in A.S.No.20/1997 of the Additional District and Sessions Court, Vatakara which arose out of the judgment and decree dated 21.12.1996 in O.S.No.216/1989 of the Munsiff's Court, Koyilandy. The appellants herein are the defendants. The respondent herein is the plaintiff. The suit was for permanent prohibitory injunction.

4. On trial, treating O.S.No.163/1989 as the leading case, on the side of the plaintiff PWs.1 to 4 were examined and marked Exts.A1 to A8 and on the side of the defendants, DWs.1 to 4 were examined and marked Exts.B1 to B5 documents. Advocate Commissioner's report and plan were marked as Exts.C1 to C5.

5. After the trial, O.S.No.163/1989 was decreed in favour of the plaintiff and dismissed O.S.No.216/1989 by virtue of the common judgment and decree dated 21.12.1996. The defendants in O.S.No.163/1989 challenged the judgment and decree by preferring A.S.No.14/1997. The 1st defendant in O.S.No.163/1989, who is the plaintiff in O.S.No.216/1989, filed A.S.No.20/1997 against the common judgment and decree in O.S.No.216/1989. The Additional District and Sessions Court, Vatakara considered both the appeals together and dismissed the same by the common judgment and decree dated 20.06.2005. The defeated defendants in O.S.No.163/1989 and the plaintiffs in the other suit carried the matter in appeal in R.S.A.No.848/2005 and R.S.A.No.850/2005. By the common judgment dated 18.6.2019 this Court allowed the appeals in part setting aside the common decree and judgment. The matter was remanded back to the first appellate court with the following directions:-

“Both the trial court and the first appellate court decreed the suit in terms of the plaint declaring the prescriptive right of easement over B schedule way and by granting permanent prohibitory injunction. But the legal position settled by this court in Cherootty @ Balan v. Velayudhan Nair [1998(1) KLJ 479] regarding the user of the ridge between the paddy field or ridge lying adjoining to the paddy field neither considered nor adjudicated by both the courts below. The question user 'as of right' should be addressed necessarily based on the decision rendered by this court in Cherootty’s case. The legal position was subsequently reiterated in several decisions of this court including the decision in R.S.A.No.626/2008 dated 11/01/2010 drawn in K.Sarojini v. Poondath Gopalakrishnan and S.A.No.425/2014 dated 03/06/2014 drawn in Paulson v. Rajesh and another. The omission to consider the above said legal position based on the factual issue involved in the case is fatal to the decision rendered by both the trial court and first appellate court. Ext.C3 rough sketch revealed the landed property lying on either side of the way partly as paddy field partly as ‘kuni' which stands for partly reclaimed paddy field. The above said question requires consideration by the first appellate court for that purpose, the decree and judgment of trial court and the first appellate court are hereby set aside. Appeal is allowed in part accordingly. The matter is remanded back to the first appellate court.”

6. After remand, the first appellate court allowed A.S.No.14/1997 and dismissed O.S.No.163/1989 of the Munsiff's Court, Koyilandy. A.S.No.20/1997 was allowed