Remand for the sake of remand. Remand though the calls of justice do not demand remand. This is actually what has happened in this case. 2. Waste of time and energy, prejudice to the parties and loss of confidence of the public in the judicial process are the result of unjustified remand, the last of which is fatal. Time and again the Supreme Court and the High Courts including this court have held that the power to remand a case shall be exercised only sparingly and the appellate court should make earnest efforts to dispose of the case on merits if evidence on record is sufficient to make an adjudication. In the following words the apex court has reminded first appellate courts of their duties: “A first appeal is a rehearing and if the parties have led all the evidence they desired, it is the duty of the first appellate court to give its own conclusions upon the evidence before it.............A trial de novo, after setting aside a final order passed by the court of first instance may therefore be made in exceptional circumstances..........”(India Army & Police Equipment v. Kanodia Brothers (1968 KLT(SN) 19).
3. The plaintiff is the owner of 7 ares 78 sq.links described in the plaint schedule. The first defendant is the owner of the adjoining eastern property. Defendants 2 and 3 are the owners of the northern property adjoining the plaintiff's property. There is no boundary separating the properties of the plaintiff and the defendants. The defendants attempted to put up boundary and to construct a road along the northern boundary of the plaintiff's property. These are the allegations on the basis of which the plaintiff sought for fixation of the boundary of her property. The first defendant contended that there is a wall separating his property from the property of the plaintiff. The second and third defendants raised a contention that for more than 15 years a road has been in existence between their property and the plaintiff's property and that there is a wall separating the road and the property of defendants 1 and 2.
4. Ext C1 commission report proves that there is a wall separating the properties of the plaintiff and the first defendant. The plaintiff has given up her claim for fixation of the boundary between her property and the property of the first defendant. This issue does not survive now.
5. The report of the Commissioner that there is a 5 metre wide road separating the properties of the plaintiff and of defendants 2 and 3 stares at her. The case of defendants 2 and 3 that their property has a compound wall on all its boundaries stands confirmed by the admission the plaintiff (PW1) has made in the box.
6. The trial court allowed the plaintiff “to put up boundary of her choice on the northern side of her property along AHG line in Ext C1(b) plan” which is the line separating her property and the northern road. The learned District Judge has made the following observation in his judgment: “Though the defendants raised a contention that a portion of the property owned by the plaintiff on its northern side now lying as a way having a width of 5 metre. They have not produced by document in order to show that it is a public way. On the other hand even according to them the user of the said way is limited for a period of 15 years. Neither the first defendant nor the defendants 2 and 3 have any case that they have got any right, title and interest over the property owned by the plaintiff herein. Even for perfection of prescriptive easement right at least a user as of right for a period of 20 years ending within two years is necessary”.(sic) The learned District Judge has observed that the defendants have no right over the road. I.A.No.205 of 2010 allowed by the plaintiff for amendment of the plaint incorporating relief of recovery of possession. He set aside the judgment and the decree of the lower court and remanded the case. The first defendant, and defendants 2 and 3 have filed separate appeals.
7. Heard Sri.G.S.Reghunath and Sri.V.P.K.Panicker learned counsel for the appellants and Sri.L.Mohanan learned counsel for the first respondent in both cases.
8. In a suit for fixation of boundary it is not the boundary of the plaintiff alone that is fixed, but the boundary between the property of the plaintiff and the defendant. This necessitates description of the properties of both parties in separate schedules in the plaint and the plaintiff's making a prayer for fixation of the boundary between the two properties. This has not been done in this case.
9. To maintain a suit for fixation of boundary it is necessary that properties of the parties to the suit are adjoining properties, which means that the two properties should be in contact with each other. In this case there is a 5 metre wide road in between the properties of the plaintiff and the second and third defendants. There is already a wall separating the property of defendants 1 and 2 from the southern road, beyond which is the property claimed by the plaintiff. There is no dispute with regard to the line on which the wall is put up. In other words, there is no boundary dispute between them.
10. Absence of boundary mark alone will not give the plaintiff a cause of action to institute a suit for fixation of boundary. Existence of a dispute as to the boundary, apprehension that the defendant would trespass into the property taking advantage of the absence of boundary mark or that a dispute might arise if the plaintiff puts up a boundary mark are some situations in which the plaintiff may file a suit for fixation of boundary. A cause of action is necessary even to institute a suit for fixation of boundary as observed in Bapputty(a) Sydali & others v. Cheriakutty(a) Veerankhani Rawther (1990(1) KLJ 218). The observation of the learned Judge is relevant:
“If it is merely for ascertaining and fixing the boundaries of his property without any dispute or atleast apprehension of disputes his remedy may not be before the Civil Court, but under the Survey and Boundaries Act”.
In P.Narayanan Nair v. Achuthan Nair and another (1973 KLT 299) a Division Bench of this court had occasion to deal with a similar situation. The Division Bench has observed:
“Where he seeks to protect his property by having the boundaries of his property demarcated from that of his neighbour apprehending that the neighbour would otherwise trespass upon his property claiming it as his own it appears to us to be in the category of suits where such person seeks to protect his rights to property.”
If the learned District Judge had taken pains to examine whether the plaintiff has a cause of action against the defendants 2 and 3, he would not have committed the error he has committed.
11. The defendants do not claim any right over the road running along the northern boundary of the plaintiff's property. The question of their right over it is beyond the scope of the suit, it being irrelevant to the issues which have come up for determination. Still, it is very surprising, the learned District Judge has made certain observations as if they have claimed a right over it and it is an issue in the suit.
12. The District Judge has allowed I.A.No.205 of 2010 filed by the plaintiff for amendment of her pleadings incorporating relief of recovery of possession. The averments sought to be incorporated by the amendment do not disclose a cause of action for claiming the relief of recovery of possession. The property sought to be recovered is admittedly a road which, the defendants allege, is used by the public. Moreover, the amendment will change the nature and character of the suit. That apart, the property sought to be recovered is not described in a schedule. Total non application of mind to these facts on the part of the learned District Judge is evident. He went awry in allowing the amendment application.
13. Not only that the learned District Judge has failed to address the relevant issues, but examined irrelevant facts and allowed amendment of the plaint, which under no circumstance he should have done. Orders of remand of this nature are invitation to unscrupulous litigants to file unnecessary amendment applications in appellate court with intent to harass the opposite party by delaying the disposal of the case. The order of remand which is unjustified for more than one reason is liable to be set aside.
In the result, these appeals are allowed. The impugned judgment is set aside. The District Judge is directed to dispose of the matter on merits.
cms K.ABRAHAM MATHEW JUDGE