Judgment :- The subject matter of dispute is relatable to an extent of land measuring 1 49 cents in S.No.23/2A, Erivakkam village. One Samikkannu is said to have purchased same from Chinnathambi and his children under Ex.A-5, registered sale deed dated 19.11.1974. Chinnathambi is said to have purchased said property from one Chinnappan under Ex.A-1 sale deed dated 19.12.1953. 2. Samikkannu, after the purchase of the said property, was said to have entered possession of the same and his possession was sought to be disturbed by one Raju, none-else than Chinnathambi’s elder sister’s son. Consequently, the said Samikkannu, figuring as plaintiff, insti-tuted the suit in O.S.No.1071 of 1974 on the file of the Munsif, Kancheepuram for declaration and injunction, impleading Raju and his sons, Chandran, Mani and Kanniappan, as defendants 1 to 4. 3. The said suit had been resisted by the defendants 1 to 4 contending that the suit property had been purchased by the first defendant, Raju, benami in the name of Chinnathambi, maternal uncle, who was always said to be ready and willing to execute reconveyance property in some form or other, and actually such a conveyance, in the shape settlement deed under Ex.B-3 dated 1.9.1974 came into existence and that therefore suit is liable to be dismissed. 4. Samikkannu and his previous vendor Chinnathambi also filed a suit in O.S.No.82 of on the file of the District Munsif, Kancheepuram, impleading Raju as the sole defendant declaration that the alleged settlement deed by Chinnathambi is a forged one. During pendency of the said suit, Chinnathambi, died and consequently, his legal representatives, namely, Thulasi, Kanaga and Lakshmi had been impleaded as plaintiffs 3 to 5. 5. The said suit had been stoutly resisted by the sole defendant Raju pleading the very contentions as had been pleaded in the other suit. 6. Learned District Munsif framed necessary and requisite issues on the pleadings parties and the parties went to trial and adduced evidence on the issues so framed. 7. 5. The said suit had been stoutly resisted by the sole defendant Raju pleading the very contentions as had been pleaded in the other suit. 6. Learned District Munsif framed necessary and requisite issues on the pleadings parties and the parties went to trial and adduced evidence on the issues so framed. 7. On a consideration of the materials available on record, learned District Munsif, delivered a common judgment recording findings that the sale deed under Ex.A-5 is true, valid genuine; that Samikkannu and his previous vendor Chinnathambi had been in possession and enjoyment of the suit property, that the plea of benami set up by Raju had negatived; and that the settlement deed under Ex.B-3 is a forged one and on those both the suits had been decreed with costs. 8. Aggrieved by the judgment and. decree, the defendants in both the suits appeals in A.S.Nos.98 and 99 of 1982 on the file of the Subordinate Judge, Kancheepuram. Learned Subordinate Judge, on consideration of the materials available on record and hearing the arguments of the respective learned counsel for the parties, rendered a judgment remanding the matter to the trial court for fresh trial and disposal after aside the judgment and decrees of the trial court mainly on the ground of non-consideration of certain materials available on record as respects the plea of benami and non-examination of the Expert as to the claim of forgery as set up by the parties. 9. Aggrieved by the order of remand passed in A.S.No.98 of 1982, Samikkannu, the in O.S.No.1017 of 1974 resorted to file the present C.M.A. 10. However, as against the order of remand in A.S.No.99 of 1982, no appeal had preferred. The fact that no such appeal had been preferred is not at all a lacuna canvassing the correctness or otherwise of the said remand order in the present preferred against the remand order in A.S.No.98 of 1982, inasmuch as the remand had been made by rendering of a common judgment in A.S.Nos.98 and 99 of 1982 represented at the Bar that in fact, a civil miscellaneous appeal had been preferred against the remand order made in A.S.No.99 of 1982 and the same had been returned the office for complying with certain defects and the same is also said to have represented and it is yet to be numbered. There is no necessity for that civil miscellaneous appeal to be numbered and to be brought before this Court for passing an order along the present appeal, on the face of the salient and sanguine provisions adumbrated O.41, Rule 33, C.P.C. In this view of the matter, the present appeal had been taken considered and arguments had been advanced by learned counsel appearing respective parties. 11. Though the records in the present appeal had not been called for by the learned counsel appearing for the parties agreed to argue the matter on the basis of the materials traceable to judgment of both courts below. 12. Even at the outset, I may point out, the order of remand made by learned Subordinate Judge is not sustainable, on the facts and circumstances of the case. As already indicated, is not as if sufficient materials are not available on record for the lower appellate court consider and pass a judgment on merits. The lower appellate court itself would state order of remand that certain materials, in the shape of admissions made by the plaintiffs witness, namely, P.W.3, during the course of cross-examination, as regards the nature of the transactions has not been taken into account. 13. The other ground, on which remand is made, is that though the plaintiff had taken petition for sending the disputed signature in Ex.B-3 with the admitted signatures found other documents for being examined by the Assistant Government Examiner of questioned Documents, Hyderabad and opinion therefor had in fact been received, yet for reasons known to him, the said Expert had not been examined in court. 14. Of course, the opinion received by court on the disputed signature reveals that it forged one. But the trial court did not at all base its conclusion solely on such a report. such an opinion is taken into account, the conclusion so arrived at is not at all sustainable, the absence of the examination of the Expert, for the simple reason that the report expressing such an opinion has not been proved in the manner allowed by law. But what trial court had done was that it had taken into account plethora of evidence circumstances available on record, as reflected in paragraphs 26 and 28 of its judgment come to the conclusion that the signature in the disputed document is a forged one. But what trial court had done was that it had taken into account plethora of evidence circumstances available on record, as reflected in paragraphs 26 and 28 of its judgment come to the conclusion that the signature in the disputed document is a forged one. In a situation, it is very well open to the lower appellate court to have rendered its rinding the materials so available without the matter being remanded to the trial court consideration afresh, on the fact of the provisions adumbrated under O.41, Rule 24 C.P.C, which prescribes that where the evidence upon the record is sufficient to enable appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary finally determine the suit, notwithstanding that the judgment of the court whose decree, the appeal is preferred has proceeded wholly upon some ground other that on which the appellate court proceeds. As such, the remand order of the lower appellate court, is, on the face of it, perverse. 15. This apart, the fulcrum of the case of the respondents/defendants is based upon plea of benami, in the sense of the suit property having been purchased by Raju in the name of his maternal uncle Chinnathambi under Ex.A-1, dated 19.12.1953 and the Chinnathambi was said to be contemplating reconveyance of the property, in some form other, in favour of Raju and did actually make a settlement deed under Ex.B-3. It appears that such a defence does not appear to be permissible, on the face of certain salutary provisions made under Sec 4 of the Benami Transactions (Prohibition) Act, 1988 (45 1988). If the provisions of the said Act are made applicable, then there is no need for lower appellate court, to consider the correctness or otherwise of the question of benami should not be mistaken that I have aired any opinion as to the applicability of the provisions of the said Act, It is however open to the parties to canvass arguments before the appellate court as regards the applicability of the provisions of the said Act to the facts the present case. 16. In this view of the matter, the remand order made by the lower appellate court deserves to be set aside and is accordingly set aside. 16. In this view of the matter, the remand order made by the lower appellate court deserves to be set aside and is accordingly set aside. Consequently, the lower appellate court directed to restore both the appeals to its file, afford adequate opportunities to the parties advance arguments, consider the materials available on record and dispose of both appeals on merits, in accordance with law. However, in the circumstances of the case, make no order as to costs. Appeal allowed.