Remand Justified Under Order 41 Rule 23A CPC When Fresh Evidence on Admitted Easement's Extent is Necessary: Kerala High Court - 2025-05-26

Kerala High Court Upholds Remand in Pathway Dispute, Emphasizes Need for Fresh Evidence on Easement Width

Ernakulam, Kerala – The Hon’ble Mr. Justice Syam Kumar V.M.of the Kerala High Court, in a judgment dated May 26, 2025, dismissed an appeal (FAO (RO) NO. 3 OF 2024) challenging a remand order by the Sub Court, Chengannur. The High Court affirmed the lower appellate court's decision to send a suit concerning a pathway dispute back to the Munsiff Court for fresh trial, primarily to allow parties to adduce further evidence on the exact dimensions of the disputed pathway, the right to which was based on an admitted grant.

Case Background: A Family Dispute Over Ancestral Pathway

The dispute originated from O.S.No.198 of 2020 filed in the Munsiff Court, Chengannur, by George Jacob (plaintiff/respondent) against Linu Varghese and others (defendants/appellants). Both parties are relatives who inherited properties from a common ancestor. The core issue was the width of a pathway (plaint schedule item No.3) leading to the plaintiff's ancestral house (plaint schedule item No.1). The plaintiff claimed an easement by grant over this pathway, originating from a 1962 Will, alleging it was historically 10-11 feet wide and used for vehicular access. The defendants contended the pathway was only 2-3 feet wide.

The Munsiff Court dismissed the plaintiff's suit and a counterclaim by the defendants, primarily because the plaintiff failed to produce and prove the original 1962 Will. The plaintiff appealed only the dismissal of his suit (O.S.No.198 of 2020) to the Sub Court, Chengannur. The Sub Court, in A.S.No.13 of 2022, set aside the Munsiff Court's decree and remanded the suit for fresh disposal, allowing both sides to adduce new evidence, particularly regarding the pathway's identification and width. This remand order was challenged by the defendants in the present appeal before the High Court.

Key Arguments

Appellants (Defendants - Linu Varghese & Ors.): Represented by Adv. Liju V. Stephen , the appellants argued that the remand by the Sub Court was erroneous. They contended it was merely to fill lacunae in the plaintiff's case, contrary to the provisions of Order 41 Rule 23 of the Civil Procedure Code (CPC). They asserted that the evidence on record, including the undisputed Will (though a photocopy was deemed illegible by the Munsiff), indicated the pathway was only 3 feet wide. They relied on judgments like Sirajudheen v. Zeenath and P. Purushottam Reddy and another v. M/s.Pratap Steels Ltd. to argue against unwarranted remand.

Respondent (Plaintiff - George Jacob ): Represented by Adv. K.P. Sreekumar , the respondent supported the remand. He argued that the Will did not specify the pathway's width, using the term "vazhi" (way) which should be interpreted to meet practical needs, including vehicular access which he claimed was historically used. He pointed out that the defendants also relied on the Will and could have produced it. The respondent emphasized that the core issue of the pathway's actual width remained unresolved due to insufficient evidence and inadequacies in the Advocate Commissioner's reports at the trial stage. He cited Chandan Mull Indra Kumar and Gale on Easements regarding the interpretation of grants and the importance of commissioner reports.

High Court's Rationale for Upholding Remand

Justice Syam Kumar V.M. meticulously examined the contentions and the legal provisions governing remand, particularly Order 41 Rules 23 and 23A CPC.

The Court noted the First Appellate Court's finding that "neither party had disputed the existence of a pathway and only the width of the pathway was disputed." The Sub Court had highlighted deficiencies in the Advocate Commissioner's reports: > "But the Commissioner did not care to identify specifically the length and width of the pathway passing through the plaint schedule item No.2 property… So Ext.C6 series are not sufficient to identify the exact length and width of the disputed pathway passing through plaint schedule item No 2 property." (Para 10 of the judgment, quoting para 18 of the Sub Court judgment)

The High Court agreed with the Sub Court's conclusion that since the easement by grant via the Will was an admitted fact, the trial court erred in dismissing the suit solely because the original Will wasn't formally proved. > "The most clinching aspect in this respect in the case at hand is that the easement by grant over the plaint schedule item No. 3 pathway on the strength of the will was an admitted fact. The Sub court was correct in concluding that an admitted fact need not be proved. Hence in the facts and circumstances as stood admitted, the trial court ought not have concluded that the plaintiff failed to adduce the will so as to prove his easement by grant." (Para 16)

The Court found that the remand met the twin conditions under Order 41 Rule 23A CPC: (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree was reversed in appeal, and a retrial was considered necessary.

The High Court observed: > "I find merit in the conclusion arrived at by the First Appellate Court that in such a factual scenario, the trial court ought to have found that the suit is for declaration of right of easement by grant over plaint schedule item No. 3 pathway and for recovering its portion and for mandatory injunction as well as prohibitory injunction and hence the plaintiff ought to have been given an opportunity to take steps to adduce evidence so as to identify the plaint schedule item No.3 pathway in plaint schedule item No. 2 property especially since the advocate commissioners had not cared to identify the same." (Para 16)

The Court emphasized that the remand was not to fill a lacuna but was essential for a just adjudication given the admitted easement and the unresolved factual question of its width, which required proper evidence, including potentially re-examining the Advocate Commissioner.

Final Decision and Implications

The High Court dismissed the FAO (RO), upholding the Sub Court's judgment and decree remanding the suit to the Munsiff Court, Chengannur. The Court clarified that any factual observations made in its judgment, including those from an Advocate Commissioner's report submitted to the High Court during the appeal, would not bind the trial court. The Munsiff Court is now tasked with conducting a fresh trial, allowing parties to present new evidence to determine the precise extent and width of the disputed pathway.

This judgment underscores the principle that appellate courts can remand cases for retrial under Order 41 Rule 23A CPC when the initial trial has inadequately addressed crucial factual issues, especially when the fundamental rights, like an admitted easement by grant, are clear, but its precise scope requires further evidentiary clarification.