G. Anandhan v. V. Palani Padayachi — 1996 DIGILAW 1080 (MAD)

Judgment :- 1. The defendant in O.S. No. 1186 of 1985 on the file of the District Munsif, Cuddalore, has filed the present appeal against the order of remand made by the learned District Judge, South Arcot at Cuddalore in A.S. No. 81 of 1989. 2. The respondent/plaintiff instituted the suit O.S. No. 1186 of 1985 on the file of the District Munsif, Cuddalore, for a declaration of title, recovery of possession and for future mesne profits. It is contended by the plaintiff that he had purchased the suit property and the properties situate on the north, south and west thereof from one Lilly Daniel in and by sale deed dated 27-1-1980 for valid consideration, that possession also was handed over, that a thatched house was put up in the property, that the same was leased out to the defendants father on a monthly rent of Rs. 15/-, that a rent deed dated 1-11-1980 was also executed by the defendants father and that the defendants father was living there with his sons. According to the plaintiff, for convenience, a partition wall was raised and that the defendants father and his brother Ponnu David were in occupation of a portion while the defendant occupied the other portion and that the defendants father handed over possession of the western portion of the thatched house and that the defendant promised to vacate the eastern portion in his occupation. The plaintiff would further aver that he is living in a poramboke which belongs to a Church, that though he has an interest in the house at Anaikuppam, he is not in a position to occupy the same as his other brothers are living there and since the defendant refused to vacate the suit property, the suit has been laid for the above mentioned reliefs. 3. The appellant/defendant resisted the suit contending that the alleged sale deed dated 27-1-1980 in favour of the plaintiff is not true, valid and supported by consideration, that the vendor of the plaintiff viz., Lilly Daniel has no title to the suit property, that she was never in possession nor had she asserted title at any point of time, that the defendants predecessors-in-title and himself have been in possession of the property openly and continuously adverse to the interest of anyone else for more than the statutory period, that is from 1964. The suit property had been described wrongly. The suit property had been described wrongly. The defendant denied the allegations that the properties south, north and east of the suit property belonged to the plaintiff and that the plaintiff was put in possession of the same and that a thatched house was put up in the same, which was rented out to the defendants father under a rental agreement dated 1-11-1980. The defendant further denied that his father was residing in a portion and that he was residing in the eastern portion and that he promised to vacate. He further contended that the plaintiff had suppressed material facts, that the plaintiff is his brother-in-law and that due to ill-feeling between his father and himself, the defendants father is colluding with the plaintiff to grab the suit property from the defendant. According to the defendant, he has been residing in the suit property from 1964 by putting up a hut and that he is in occupation of east west 33 feet and north south 110 feet in T.S. No. 2532-2536, which is situate on the west of the Church property, east of one Jayapals property, north of Manjakuppam Road and south of one Kesava Naidus property. The defendant also contended that in the year 1980 when the dispute arose between the defendant and that his father and the plaintiff colluded and brought into existence bogus sale deed and rent deed. Further, on the date of the rent deed, the defendants father was living only with the plaintiff while the defendant and his brother were living in the suit property and that the rent deed is not true and valid and is a collusive and fraudulent one got up to grab the property from the defendant and his brothers. The plaintiff issued a notice dated 10-4-1981 to the defendant for which the defendant sent a reply on 26-4-1981 after which the defendants father, realising that he had no case, joined the defendant. Thereafter, the matter was not pursued. His father died during 1983 and due to misunderstanding between the plaintiff and the defendant, the plaintiff has come forward with the suit taking advantage of the fraudulent and collusive sale deed and rent deed. According to the defendant, the plaintiff had no title to the suit property and that the suit is a motivated one. 4. The learned District Munsif who tried the suit, decreed the same. According to the defendant, the plaintiff had no title to the suit property and that the suit is a motivated one. 4. The learned District Munsif who tried the suit, decreed the same. Aggrieved by the judgment and decree of learned District Munsif the defendant preferred an appeal in A.S. No. 81 of 1989 on the file of the District Judge, Cuddalore. The learned District Judge found that the description of property as found in plaint does not correlate with the documents produced. However, without dismissing the suit, the learned District Judge remanded the case to the trial court. Aggrieved by the same, the defendant has preferred the present appeal. 5. I heard the arguments of Mr. V. Prabakar for the appellant/defendant and Mr. R. Subramaniam for the respondent/plaintiff and perused the pleadings, documents filed and the judgements of the Courts below. 6. Mr. V. Prabhakar contended that the learned District Judge having found that the description of property as found in the plaint does not correlate with the documents produced, ought to have dismissed the very suit. It is further submitted that the learned District Judge having accepted that the plaintiff as P.W. 1 has not been able to identify the suit property, ought to have rejected the case of the plaintiff. However, the learned District Judge, on an erroneous view of the law and facts of the case, remanded the case. My attention was also invited to the specific finding of the Court below. 7. The entire discussion in paragraph 9 of the judgement of the court below would only strengthen the case of the defendant. The Court below has specifically found that the vendor Lilly Daniel, who sold the property in T.S. No. 2532 to the plaintiff has no right to sell the same, that the plaintiff cannot derive any right for T.S. No. 2532 under Ex. A-1 and that if the thatched shed mentioned in the plaint is situate in T.S. No. 2532, then the plaintiff is not entitled to any relief. A-1 and that if the thatched shed mentioned in the plaint is situate in T.S. No. 2532, then the plaintiff is not entitled to any relief. It is further held by the Court below that from the available evidence let in by both sides, the Court below will not be in a position to arrive at any finding and therefore the Appellate Court held that the judgment of the learned District Munsif, who decided the matter on the available evidence, cannot be allowed to stand and that in order to give opportunity to both parties, the suit should be remitted back to the trial court. The Appellate Court has also categorically decided that on the available evidence let in by both parties, the plaintiff is not entitled to any declaration, recovery of possession and for mesne profits as prayed for. Having held so, the Appellate Court has, however, set aside the judgment and decree of the trial court and remitted the matter back to the trial court to decide the matter afresh after giving opportunity to both parties to let in both oral and documentary evidence. 8. The contention of Mr. V. Prabhakar that the judgment of the Court below remanding the suit for fresh disposal is vitiated and opposed to the evidence on record and therefore the same is liable to be set aside, merits acceptance. The Appellate Court having held that in spite of the earlier order of remand, the plaintiff had not let in proper evidence, ought to have allowed the appeal and set aside the judgement and decree of the trial court without remanding the matter for fresh disposal. I have already referred to the categorical finding rendered by the Appellate Court that the plaintiff has not established his claim for declaration, recovery of possession and also for mesne profits. Having held so, the Court below has totally erred in remanding the matter to the trial court especially after the clear finding that the plaintiff has not established his title. 9. The following points urged by the learned counsel for the appellant/defendant would support his contention that the order of remand for fresh disposal is bad and vitiated: (a) The appellate court ought to have dismissed the suit on the ground that the pleading is contrary to the evidence let in. 9. The following points urged by the learned counsel for the appellant/defendant would support his contention that the order of remand for fresh disposal is bad and vitiated: (a) The appellate court ought to have dismissed the suit on the ground that the pleading is contrary to the evidence let in. (b) The evidence of P.W. 3 that the defendant had been in possession of the suit property by living there even prior to 1967 was accepted by the Appellate Court. Under such circumstances, it should have held that the appellant/defendant has prescribed title by adverse possession and as such, ought to have allowed the appeal and dismissed the suit. (c) Having found that the suit property is not included in Ex. A-22, the family arrangement between the predecessor-in-interest of the plaintiff, the Appellate Court should have dismissed the suit and allowed the appeal. (d) The Appellate Court has clearly found that the vendor of the plaintiff had no title to convey the property under Ex. A-1. Under such circumstances, the Appellate Court ought to have rejected the case pleaded by the respondent/plaintiff. (e) Having found that the description of property as found in the plaint has been wrongly given, the court below ought to have dismissed the suit. (f) The evidence of the plaintiff as P.W. 1 is that he is not aware in which survey number the building is situate. Therefore, the Appellate Court should have dismissed the suit. (g) It is settled law that it is for the plaintiff to establish his case and having failed to do so even after an opportunity had been afforded on the earlier occasion, the suit must fail. (h) The Appellate Court ought to have decided the appeal on merits on the evidence on record and it has erred in remanding the matter to the trial court by giving the respondent/plaintiff a third opportunity to fill up the lacuna in his case. (i) The plaintiff having come to Court with a specific case as to the location of the property and the hut therein and having failed to establish the same, the question of giving another opportunity to the plaintiff to have an Advocate Commissioner appointed for the location of the property does not arise. (i) The plaintiff having come to Court with a specific case as to the location of the property and the hut therein and having failed to establish the same, the question of giving another opportunity to the plaintiff to have an Advocate Commissioner appointed for the location of the property does not arise. (j) The Appellate Court has also overlooked the specific pleading of the appellant/defendant that the suit property has been wrongly described apart from giving details including the boundaries and length and breadth of the property in his possession. (k) The Appellate Court having rightly held that the plaintiff would be entitled to the relief only if he establishes his case, erred in remanding the case, especially after having found that the plaintiff has failed to establish his case. (l) Likewise, the Appellate Court has also erred in giving opportunity to both parties to let in further oral and documentary evidence while remanding the suit for fresh disposal. (m) The Appellate Court has further held in giving an opportunity to the plaintiff to fill up the lacuna in his case especially after holding that he has not established his case. (n) The Appellate Court has failed to notice that opportunity to let in further evidence could be granted only in exceptional circumstances and not as a matter of course or to give an opportunity to the plaintiff to establish his case, as has been done in this case. (o) Order 41, Rule 23-A read with Order 41 Rule 23 of the Code Civil Procedure makes it mandatory that the evidence recorded during the trial shall alone be the evidence after remand. 10. The Appellate Court, in my view, has failed to note that liberty to let in further evidence if given while remanding, reasons of such liberty being given ought to have been stated in the order and that the failure on the part of the plaintiff to establish his case is no reason to give liberty as done by the court below. The court below has not found that there is lack of evidence or that on the evidence on record, no conclusion could be arrived at. Under such circumstances, the Appellate Court ought to have exercised its power under O. 41, R. 24, of the Code of Civil Procedure and rendered its decision on merits. The court below has not found that there is lack of evidence or that on the evidence on record, no conclusion could be arrived at. Under such circumstances, the Appellate Court ought to have exercised its power under O. 41, R. 24, of the Code of Civil Procedure and rendered its decision on merits. It is well settled that the power of remand should be sparingly exercised. There should always be an endeavour to dispose of the case by the Appellate Court itself when the commission or omission made by the first court could be corrected by the Appellate Court. 11. It is contention of Mr. V. Prabhakar that the plaintiff should have filed an appeal against the findings rendered against him by the Appellate Court in the remit order and that the plaintiff not having appealed against the said remand order, the bar under Section 105(2) of the Code of Civil Procedure comes into operation and the plaintiff/respondent is precluded from disputing its correctness in the subsequent stages of the same proceedings. In support of the above contention, it is useful to reproduce the relevant passages in paragraphs 8 and 11 of the judgment reported in Krishnaswami Reddiar v. Muthu Reddiar (92, L.W. 170 = (1979) I M.L.J., 108) which runs thus: “It is well established that the finality given under section 105(2) to an order of remand which is appealable but which has not in fact been appealed against, will apply to the findings rendered in the order of remand as well. In this case the remand was based on the finding that Kumudavalli had not lost her French nationality as a result of her marriage with an Indian national. That finding has become final. It is not, therefore, open to the appellant to question that finding in this appeal arising out of the said order of remand directing a fresh disposal of the suit after giving a finding on the form of the marriage alone. As already stated, the remand order in this case was based on the finding rendered by the appellate Court that Kumudavalli has not lost her French nationality as a result of her marriage with an Indian national and that finding not having been challenged by the 1st defendant, he is precluded from questioning the correctness of that finding in view of Section 105 (2) of the Code. We have already held that the form of marriage between Kumudavalli and her husband was in Brahma form and, therefore the husba nd will succeed to the properties of Kumudavalli to the exclusion of her collaterals including the 1st defendants vendor.” 12. In the decision reported in Narain Singh v. Koomvarjee (A.I.R. 1970 S.C. 997) = (1971) 84 L.W. 68 S.N.) the trial court dismissed the suit upholding the contention of the defendants on two issues viz., (1) that the Civil Court had no jurisdiction to entertain the suit; and (2) that in view of the abolition of jagirs and the vesting of the suit properties in the State, the plaintiff can claim no relief. The first Appellate Court reversed the finding of the trial court on those issues. It came to the conclusion that the Civil Court had jurisdiction to entertain the suit. It further held that though in view of the abolition of the jagirs, the suit properties had vested in the State, it was for the State had not chosen to do so it was open to the plaintiff to press the suit. In view of those conclusions, the Appellate Court set aside the decree of the trial court and remanded the suit to the trial court for deciding the other issues left undecided. After the remand, the trial court negatived every one of the contentions taken by the defendants and decreed the suit as prayed for. In appeal, that decree was confirmed. In Second Appeal, the High Court agreed with the trial court and the Appellate Court on the findings given on all issues excepting the issue relating to the effect of abolition of the jagirs on the suit. On that issue the High Court came to the conclusion that in view of the abolition of jagirs under the Jagirs Abolition Act, the plaintiff had lost his title to the suit properties and therefore he could not get a decree for possession of the suit properties. It rejected the contention of the plaintiff that issue is concluded by the decision of the Appellate Court made before remand as the same had not been appealed against. It opined that the Court had inherent power to consider the correctness of that order. It accordingly allowed the appeal and dismissed the suit. It rejected the contention of the plaintiff that issue is concluded by the decision of the Appellate Court made before remand as the same had not been appealed against. It opined that the Court had inherent power to consider the correctness of that order. It accordingly allowed the appeal and dismissed the suit. In this back ground, the Supreme Court in paragraph 4 has held as follows:— “The High Court in our opinion erred in holding that the correctness on the remand order was open to review by it. The order in question was made under Rule 23, Order 41, Civil Procedure Code. That order was appealable under Order 43 of that Code. As the same was not appealed against, its correctness was no more open to examination in view of Section 105(2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal thereafter be shall there after be precluded from disputing its correctness. The High Court has misconceived the scope of its inherent powers. Under the inherent power of Courts recognised by Section 151, C.P.C., a Court has no power to do that which is prohibited by the code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words the Court cannot make use of the special provisions of Section 151 of Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of Code cannot be exercised as an appellate power.” 13. In the decision reported in Surendra Narain Shukla v. Prashidh Narain Shukla (1988 (Supp.) S.C.C., 171), the Supreme Court has held as follows:— “On an earlier occasion when the matter reached the High Court, the High Court had given categorical findings that the plaintiff was entitled to a partition of 1 anna 7 pies and odd share, that the plaintiff and defendants were in possession as co-sharers and that there was no question of ouster or adverse possession. In view of those findings, there was no need for High Court to remand the matter to the lower appellate court for a fresh hearing. In view of those findings, there was no need for High Court to remand the matter to the lower appellate court for a fresh hearing. In fact we fail to understand what fresh hearing the lowe r appellate court was expected to give in face of the findings recorded by the High Court. Though pursuant to the order of remand, the lower appellate court purported to rehear the matter, ultimately the lower appellate court granted a decree in accordance with the findings recorded by the High Court earlier. The second appeal filed thereafter by the defendants was rightly dismissed by the High Court in limine. We are unable to find any ground for interference at this stage, having regard to the earlier findings recorded by the High Court. The appeal is dismissed.” 14. In the decision reported in Kaluvaroya Pillai v. Ganesa Pandithan (A.I.R. 1969 Madras 248 = I.L.R. (1969) I Madras 802 = (1960) 81 L.W. 565), the question posed before T. Ramamprasada Rao, J., as he then was, as to whether in an appeal against an order of remand, the appellant can canvass all the findings of fact arrived at by the appellate Court or whether the findings of fact relating to and circumscribing the order of remand only could be agitated therein. It has been held by the learned Judge as under: “It is now well settled that a litigant in order to avoid the prescribed statutory bar in Section 105(2), Civil Procedure Code, can and indeed ought to tile an appeal against an order of remand, but the only limitation is that in such appeal under Order 43, rule 1(u). Civil Procedure Code, he can agitate not but only the legality or propriety of the order of remand, but also the findings of fact attendant upon the remit order.” 15. The decision reported in Deva Ram v. Ishwar Chand (1995 (6) S.C.C., 733) was cited by the learned counsel for the respondent/plaintiff to support his contention that an appeal does not lie against a mere finding recorded by a Court. The finding rendered by the Supreme Court in paragraphs 25, 26 and 27 of the above decision was brought to my notice. The finding rendered by the Supreme Court in paragraphs 25, 26 and 27 of the above decision was brought to my notice. In my opinion, the respondent/plaintiff ought to have filed an appeal against the finding of the appellate court since it is ‘order’ as defined in Section 2(14) of the Code and that the said order falls within the list of ‘orders’ indicated in Order 43 of the Code. I have already referred to the findings rendered by the Appellate Court which conclusively held that the respondent/plaintiff has failed to establish his case to regard to title to the suit land, building etc. The respondent/plaintiff has not let in any proper evidence to prove his claim, which was commented upon by the Appellate Court and which would amount to an order. Therefore, the adverse finding rendered by the Appellate Court should have been challenged by the respondent/plaintiff. Having failed to question those findings before this Court in the appeal filed by the defendant, the order of the Appellate Court remitting the matter to the trial court in order to give a third opportunity to the respondent/plaintiff to fill up the lacuna in his case especially after the Appellate court has held that the plaintiff has not established his case, cannot at all be allowed to stand. Therefore, in the absence of the respondent/plaintiff challenging the adverse finding rendered by the Appellate Court, he has no right to let in any fresh evidence, both oral and documentary, after the remand and such an opportunity to fill up the lacuna in his case ought not to have been granted by the Appellate Court, which has miserably failed to appreciate the scope no Order 41, Rule 23 of the Code of Civil Procedure, which makes it mandatory that the evidence recorded during trial shall alone be the evidence after remand. In this case, as already held, there is no need at all for the Appellate Court to remanded the matter. The Appellate Court should have, therefore, dismissed the suit filed by the respondent/plaintiff on the basis of the categorical conclusion reached by it on the available evidence. Therefore, I have no other option except to allow this appeal. 16. For the fore-going reasons, the appeal is allowed, the order of remand passed by the Court below is set aside and the suit filed by the respondent/plaintiff is dismissed. Therefore, I have no other option except to allow this appeal. 16. For the fore-going reasons, the appeal is allowed, the order of remand passed by the Court below is set aside and the suit filed by the respondent/plaintiff is dismissed. However, there will be no order as to costs.