Judgment :- 1. The judgment under appeal is quite an unhappy performance, both in regard to the reasoning and the resultant direction by way of remand. However, I hasten to add that this observation does not imply my preference for the defendant's case on the merits. Moreover, my attention has been drawn to certain subsequent events which have happened, and having due regard to these developments, I propose to give directions which, at this stage, will promote justice better than if I proceed to decide on the merits and has the merit of concurrence by parties. 2. This suit was brought by the plaintiff the respondent in the second appeal against the 1st defendant the appellant before me for recovery of arrear of rent for the year 1137 for a magnificent sum of Rs. 14.40 Obviously, there is something more than meets the eye in this litigation and this is evident from the defendants' contention that the Meethaleputhiyottil tarwad (hereinafter referred to, for short, as M. P. Tarwad) from which the plaintiff claims to derive his title, is not the jenmi of the property and that the Thottil tarwad (hereinafter referred to, for short, as T. Tarwad of the first defendant) is not the tenant of the property but its jenmi. The plaintiff claimed title in the M. P. tarwad and proceeded to state that the tarwad was holding it under the former as per an ancient lease of 1070 on an annual rent of Rs. 5/- plus 150 cadjans and 2 cocoanuts. The learned Munsiff found on issue No.1 that the plaintiff and her predecessors-in-interest had no title to the property and that even if they had " that had been lost by adverse possession and limitation". Issues had been raised relating to title as well as limitation and adverse possession. The court went further to hold that "there is a complete absence of any evidence regarding the oral lease." On these findings the suit was dismissed, which led to an appeal which was disposed of by the Subordinate Judge, directing a remand. He found, by a curious process of reasoning, that the plaintiff and her predecessors-in-interest had title to the property and by a more obscure ratiocination negatived the plea of adverse possession. He found, by a curious process of reasoning, that the plaintiff and her predecessors-in-interest had title to the property and by a more obscure ratiocination negatived the plea of adverse possession. I am not dilating on these two aspects in view of the ultimate direction I am giving in this judgment and with a view to avoid prejudice to either party on account of any observations by me herein. Maybe, the plaintiff's case on title is entitled to acceptance, as Shri. Kelu Nambiar, learned counsel for the respondent, urged before me quite persuasively relying on Mr. Justice Madhavan Nair's decision in Second Appeal No. 1316 of 1961 (un-reported) 3. The weakest part of the judgment, however, is where the Subordinate Judge negatives the oral lease set up in the plaint, and by some sixth sense, as it were, observes that the tarwad of defendants 1 to 3 was holding the property "under some entrustment from the tarwad" (i. e. the M. P. Tarwad), a case which neither party had put forward in the pleadings. The appellate court, after holding "that the oral lease set up in the plaint is not true" got into a generous mood and said "but an opportunity should be granted to the plaintiff to amend the plaint and claim an appropriate amount by way of damages for use and occupation. For this purpose, the suit has to be remanded to the lower court". Had the defendant submitted to a decree as prayed for at least he would have been, entitled to a tenancy which is a valuable right under the Land Reforms Act, but as a result of the judgment in appeal even what the plaintiff was willing to give to the first defendant viz., the status of a tenant, has been taken away by the appellate judge, who has now directed that the plaintiff is to be given an opportunity "to get the plaint amended claiming an appropriate amount by way of damages for use and occupation". There is some force in the argument of the appellant that injustice and illegality are writ large in this judgment. Even the direction for remand, solely to enable the plaintiff to amend the plaint to create a cause of action, under the circumstances set out above, is not within the powers of the appellate court. Neither Order XLI R.23 nor even S.151 CPC. Even the direction for remand, solely to enable the plaintiff to amend the plaint to create a cause of action, under the circumstances set out above, is not within the powers of the appellate court. Neither Order XLI R.23 nor even S.151 CPC. (assuming it to confer a power of re remand in situations uncovered by the former provision but promoting the ends of justice) justifies the course adopted. Nevertheless, I should prefer to dispose of this appeal on the lines set out and agreed to by both parties. 4. Shri Kelu Nambiar, learned counsel for the respondent, states that the Sub Court ordered remand on 29 91966 and the learned Munsiff disposed of the suit, after remand on 3110 1965 and that an appeal is now pending against this decree at the instance of the defendant. Of course, the Munsiff was bound by the findings recorded by the first appellate court regarding title and the absence of the status of tenant for the first defendant. The court has chosen to fix an amount of Rs. 14-40 i. e., the amount claimed by way of rent in the plaint, as damages for use and occupation. Now that an appeal is pending, both parties agree that the proper course to adopt would be to direct the appellate court to ignore the findings recorded by the Subordinate Judge in A. S. No. 168 of 1965 and consider denovo the questions regarding the plaintiff's title and the plea of adverse possession and limitation set up by the first defendant. Alternatively, he will also go into the question of the status of the first defendant as tenant a status attributed to him in the original plaint. All this will be done untrammelled by the judgment or the observations made by the Subordinate Judge in the appeal under attack before me. Thus, the first defendant will get an opportunity before the appellate court to establish his contentions and the plaintiff will have a chance to answer back and make out his new claim too. The appeal is disposed of as above. 5. A preliminary objection had been raised by Shri T. P. Kelu Nambiar counsel for the respondent, that the appeal itself is not maintainable. The appeal is disposed of as above. 5. A preliminary objection had been raised by Shri T. P. Kelu Nambiar counsel for the respondent, that the appeal itself is not maintainable. He has fairly conceded that the preponderance of authorities is against him.but hopefully argued encouraged by the absence of any direct ruling of the Kerala High Court on the point, that the reasoning in the over-ruled ruling reported in Venkatrama Aiyar v. Unnamalai Ammal (A. I. R.1949 Madras 377) is more acceptable than that contained in the over-ruling ruling reported in AIR 1951 Madras 883. An order of remand is obviously appealable under Order XLIII R.1 clause (u) and in that sense counsel for respondent agrees that this order is appealable. But, his submission is that though an appeal lies from an order of remand, it must be preferred before the final disposal of the remanded suit, otherwise it. cannot be entertained. In the present case, the remanded suit was disposed of on 3110 1966 and the present Civil Miscellaneous Appeal was preferred only on 14 3 1967. The reason given by judges who have negatived the maintainability of the appeal is that a right of appeal conferred by S.104 and Order XLIII, C. P. C. from orders specified therein ceases to exist when the suit as such ceased to exist. Shri. Nambiar has cited before me a ruling of a single judge of the Madras High Court in AIR. 1949 Madras 377 but has candidly conceded that a Division Bench of the same Court has over-ruled it in AIR 1951 Madras 883. The Calcutta High Court (A Division Bench) took the same view in Salim v. Hajira Bibi (AIR 1928 Calcutta 325) and indeed Mack J. of the Madras High Court relied upon the Calcutta decision in AIR 1949 Madras 377. In the Calcutta High Court, however, a Full Bench Talebali v. Abdul Aziz ILR 57 Calcutta 1013 has strongly criticised the view expressed in AIR. 1928 Calcutta 325. Both the Rajasthan High Court (AIR. 1962 Rajasthan 57 F.B.) and the Orissa High Court (AIR. 19-4 Orissa 156) have fallen in line with this view. The Allahabad High Court also has held that an appeal lies even after the decision of the remanded suit provided it is within the period of limitation (ILR 30 Allahabad 479). 1928 Calcutta 325. Both the Rajasthan High Court (AIR. 1962 Rajasthan 57 F.B.) and the Orissa High Court (AIR. 19-4 Orissa 156) have fallen in line with this view. The Allahabad High Court also has held that an appeal lies even after the decision of the remanded suit provided it is within the period of limitation (ILR 30 Allahabad 479). I have therefore no hesitation in holding on this point that an appeal lies from an order of remand even after the remanded suit has been disposed of by the trial court. Preponderance of authority, the persuasion of commonsense and the clear provision in the statute concur in this conclusion. I set aside the findings of the lower appellate court regarding the title of the plaintiff and the tenancy of the defendant. The entire matter will be left open for its being canvassed by both parties before the appellate Court in the fresh appeal (A. S.14 of 1957, Badagara Sub Court) that has been filed against the decree passed by the trial court after remand. I express no opinion on the merits of the matter. The appeal is disposed of as above; no costs.