Judgment : The C.M.A. has been filed against the order of remand by the Subordinate Judge, Mayiladuthurai in A.S.No.12 of 1990 on his file. The first appellant in the Civil Miscellaneous Appeal filed suit O.S.No.171 of 1983 before the District Munsif, Seerghazhi against the respondent herein for a permanent injunction restraining him, his men and agents from interfering with his possession or in the alternative for recovery of possession in respect of an extent of 7 cents in R.S.No.166/4 in No.91 Mudikandanallur Village in Tharangambadi Taluk, Mayiladuthurai Registration District with 22 coconut trees, plantains and trees like portia, vaagai and margoza. Pending C.M.A., he died and his legal representatives have come on record as appellants 2 and 3. The case as set out in the plaint is as follows: The suit property was allotted to the plaintiff in a family partition between his paternal uncle and himself to be enjoyed by them jointly and the paternal uncle having died 40 years prior to the suit without leaving behind any heir or legal representative, he became the sole owner and in possession of the same. The defendant/respondent used to work as a casual labourer in his wet lands in the village and as he was creating trouble demanding higher wages the plaintiff stopped engaging him as a casual labour from January, 1983. The defendant had been nurturing the grievance against the plaintiff from the first week of March, 1983. He attempted to cut the trees in the fence line around the suit property. This was prevented by the plaintiff. He had been coming out from 23. 1983 that he would cause interference to the plaintiffs possession of the property. The defendant is not denying the title of the plaintiff but bent upon causing any once to him and the suit is therefore necessitated. 2. The defendant has filed a written statement and an additional written statement with the following averments: The title and possession of the plaintiff to the suit property are denied. The defendant is poor Harijan in possession of 15 Kuzhis for the past 25 years bounded on the North by the Tank and east West and South by Channels. He has put fence all round and the property is in his possession and lock and key. He has raised the various trees. The defendant is poor Harijan in possession of 15 Kuzhis for the past 25 years bounded on the North by the Tank and east West and South by Channels. He has put fence all round and the property is in his possession and lock and key. He has raised the various trees. He is living in the hut built in the property and it is known to everybody in the village. The enmity mentioned in the plaint is not true. There was no necessity for the defendant to cut the trees belonging to him. The alternative prayer is not maintainable. 3. Thelearned District Munsif Seerghazhi framed the following issues and additional issues on the pleadings: .• (1) Whether the plaintiff was in possession on the date of the suit and whether he is entitled to the permanent injunction prayed for by hime .• (2) What relief the plaintiff is entitled toe Additional issues were: .• (1) Whether the plaintiff would be entitled to the alternative relief of recovery of possession. .• (2) Whether he would be entitled to the other reliefs prayed for by him. 4. On the side of the plaintiff Exs.A-1 to A-6 were marked and the plaintiff besides examining himself as P.W.1 examined 4 other persons as P.Ws.2 to 5. The defendant marked Exs.B-1 and B-2, examined himself as D.W.1 and 4 others as D.Ws.2 to 5. The Advocate Commissioners Report and Plan were marked as Court Documents 1 and 2 and the Report and the plan of the Surveyor/Commissioner were marked as court documents 3 and 4. The learned District Munsif after elaborately considering the oral and the documentary evidence held that the plaintiff had established his case of title, that the defendant had not shown by any acceptable evidence, that he had been in enjoyment and possession of the suit property by production of the kist receipts alleged to have been issued to him. The learned District Munsif also found that the ‘B’ Memos produced by the defendant were not true documents that there were corrections made in them, that his case that it was poromboke land had not been proved. The learned District Munsif further found that the plaintiff was in possession of the property and he was entitled to a decree for permanent injunction. 5. Aggrieved the defendant field a appeal in A.S.No.12 of 1990 before the Subordinate Judge, Mayiladuthurai. The learned District Munsif further found that the plaintiff was in possession of the property and he was entitled to a decree for permanent injunction. 5. Aggrieved the defendant field a appeal in A.S.No.12 of 1990 before the Subordinate Judge, Mayiladuthurai. The learned Subordinate Judge framed the point for consideration as to whether the plaintiff was entitled to a permanent injunction in respect of the suit property. Before the learned Subordinate Judge it was contended on behalf of the defendant that when the defendant had specifically disputed and denied the title of the plaintiff to the suit property and had also set up a case that he had been in possession and enjoyment of the property for 25 years, the appellate court ought to have framed the necessary issues in this regard and in as much the same had not been done by the trial court, the decision could not be sustained. It was contended on behalf of the plaintiff before the lower appellate court that at the time of framing the issues or at the time the trial was proceeded with the arguments were heard, it was not contended on behalf of the defendant that additional issues had to be framed and having not raised the objection before the trial court, it was not open to him to raise it at the hearing of the appeal. 6. The learned Subordinate Judge held that the trial court ought to have raised issues regarding the title of the plaintiff as also the claim made by the defendant and framed the necessary issues, permitted the parties to lead evidence and the same not having been done it had become necessary to set aside the decision of the trial court and remand the matter to the trial court with a direction to frame two additional issues regarding the title and the possession of the defendant for 25 years and whether the defendant had prescribed for title by adverse possession, permit the parties to lead evidence on these issues and decide the suit afresh within a period of 5 months from the date of the order in the appeal. 7. As against this order of remand the present appeal has been filed. 8. 7. As against this order of remand the present appeal has been filed. 8. It is contended by the learned counsel Mr.R.Balakrishnan for appellants that the remand by the appellate court was wholly uncalled for, that the appellate court totally lost sight of the fact that the entire evidence bearing on the plea relating to his alleged possession and denial of title by the defendant/respondent had been exhaustively considered by the trial court. The learned counsel further submitted that he had not pleaded that he had been in possession for 25 years prior to the filing of the suit and that he had perfected the title by adverse possession. The learned counsel lastly contended that in any event the appellate court ought to have decided the matter after resettlement of the issues under O.41, Rule 24 instead of remanding the matter. The learned counsel in support of his submission relied on two judgments: (i) Middi Ramakrishna Rao v. Middi Rangayya and others Middi Ramakrishna Rao v. Middi Rangayya and others Middi Ramakrishna Rao v. Middi Rangayya and others A.I.R. 1954 Mad. 783:1954 M.W.N. 216. (ii) Gangi v. Gian Gour and others Gangi v. Gian Gour and others Gangi v. Gian Gour and others A.I.R. 1991 P. & H. 175. 9. Though the defendant/respondent had been served, he did not engage any counsel to represent his case therefore Mr.A.Muthukumar, Advocate was appointed as amicus curiae to assist the court in deciding the question. Mr.A.Muthukumar referred to a number of decisions on the scope of remand under O.41, Rule 23 of the C.P.C. and submitted that having regard to the facts and circumstances of the case the remand was not at all justified. Though no issue had been framed by the trial court still on the materials produced and the oral evidence let in the trial court found title in favour of the plaintiff and that the defendant had not title. Even otherwise, Mr.A.Muthukumar contended that it was wholly unnecessary for the appellate court to have remanded the matter without even a finding as to why the decision of the trial court was erroneous or wrong. 10. Even otherwise, Mr.A.Muthukumar contended that it was wholly unnecessary for the appellate court to have remanded the matter without even a finding as to why the decision of the trial court was erroneous or wrong. 10. As regards adverse possession Mr.A.Muthukumar referred to the text book on ‘Law of Adverse Possession’ by Mantha Ramamurthy 2nd edition page 546 and submitted that there must be specific plea regarding adverse possession and it was for the court to decide whether there was a specific plea in the instant case by the respondent in his written statement. He also referred to the decision of the Allahabad High Court in Municipal Board Etawah v. Mst Ram Sri Municipal Board Etawah v. Mst Ram Sri Municipal Board Etawah v. Mst Ram Sri A.I.R. 1931 All 620 and the decision of this Court in P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar A.I.R. 1940 Mad. 71. He also referred to Kakarlapudi Jankiramaraju v. Gedola Appalaswami (1954)2 MLJ. 773 :A.I.R. 1954 Mad. 772 as to what the expression expressly “plead” means. 11. As far as the contention regarding the lack of pleading is concerned, I had occasion to consider the question in S.A.No.1661 of 1984 decided on 4. 1898 and in my view the expression ‘adverse possession’ need not specifically find a place in the pleadings as long as the necessary averments in this regard are available in the pleadings. If we look at the written statement filed by the defendant, this is what he has stated in paragraph 2. “The defendant is a poor Harijan and he is in possession of 0.50 Kuzhis for the past 25 years bounded with south of tank and east and west of north of channels. He has put the fences all round and put in his possession with lock and key. He also raised the coconut trees, Poovarasu trees, Neem trees, Punga trees, Tamarind Trees, athi trees. There are house and athimaram. The defendant is living in the hut built in the property. This is known to everybody in the village. He has put the fences all round and put in his possession with lock and key. He also raised the coconut trees, Poovarasu trees, Neem trees, Punga trees, Tamarind Trees, athi trees. There are house and athimaram. The defendant is living in the hut built in the property. This is known to everybody in the village. The defendant is in possession of the above 0.50 Kuzhis and he has raised the plantain, coconut, etc.” In my view, these averments are sufficient to constitute the plea of adverse possession, though the words ‘adverse possession’ as such have not been mentioned in the written statement. The contention that there is no pleas of adverse possession by the defendant cannot therefore be accepted. 12. The next question relates to the order of remand passed by the appellate court. It is necessary to re-state the principles relating to the scope of remand by reference to the relevant provisions and various precedents. .13. Order 41, Rule 23 as applicable to Madras runs as follows: .“remand of case by appellate court: Whether the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal or where the appellate court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case and may further direct what issue or issues shall be tried in the case so remanded, and shall sent a copy of its judgment and order to the courts from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit, and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. ” .14. In Kalahasti Veeramma v. Prattipati Lakshmayya and others Kalahasti Veeramma v. Prattipati Lakshmayya and others Kalahasti Veeramma v. Prattipati Lakshmayya and others (1984)1 MLJ. 427:A.I.R. 1948 Mad. 488, Horwill, J. dealing with the scope of remand observed as follows: .“The judgment of the trial court must be so completely incomprehensible as to be of no value at all. ” .14. In Kalahasti Veeramma v. Prattipati Lakshmayya and others Kalahasti Veeramma v. Prattipati Lakshmayya and others Kalahasti Veeramma v. Prattipati Lakshmayya and others (1984)1 MLJ. 427:A.I.R. 1948 Mad. 488, Horwill, J. dealing with the scope of remand observed as follows: .“The judgment of the trial court must be so completely incomprehensible as to be of no value at all. Otherwise, the appellate court has no jurisdiction to order the trial court to writ another judgment… but under the present rule the appellate court can also remand the suit if in reversing or setting aside the decree it considers it necessary in the interests of justice to do so.” .15. In Kanjanur Sri Agneswarswami Devasthanam by its Superintendent, Chithiah Mudaliar v. Thillai Govinda Pandian Kanjanur Sri Agneswarswami Devasthanam by its Superintendent, Chithiah Mudaliar v. Thillai Govinda Pandian Kanjanur Sri Agneswarswami Devasthanam by its Superintendent, Chithiah Mudaliar v. Thillai Govinda Pandian (1948)2 MLJ. 413 :A.I.R. 1949 Mad. 394, the same learned judge dealing with the question as to whether reception of additional evidence would warrant an order of remand observed as follows: .“The fact that additional evidence was received would still be no ground for the order of remand and it can be passed only when the appellate court has decided that it is necessary to set aside a decree because the fresh evidence could and should be considered by the appellate court together with the evidence already on record. Strict conditions of Order 41, Rule 23 with respect to the reception of additional evidence cannot be circumvented by a mechanical order of remand. ” .16. In Middi Ramakrishna Rao v. Middi Rangayya and others Middi Ramakrishna Rao v. Middi Rangayya and others Middi Ramakrishna Rao v. Middi Rangayya and others A.I.R. 1954 Mad. 783:1954 M.W.N. 216. relied on by Mr.R.Balakrishnan learned counsel for the appellant, P.N.Ramaswamy, J. after an exhaustive reference to a number of decisions summed up as follows: .“The power of remand is not an arbitrary one but should be based upon sound and reasonable grounds and the appellate court should not rashly and without sufficient cause direct remand of the suit. relied on by Mr.R.Balakrishnan learned counsel for the appellant, P.N.Ramaswamy, J. after an exhaustive reference to a number of decisions summed up as follows: .“The power of remand is not an arbitrary one but should be based upon sound and reasonable grounds and the appellate court should not rashly and without sufficient cause direct remand of the suit. The mere fact that the evidence on record is not sufficient to enable a court to come to a finding on a point in issue is not a sufficient ground to justify a remand under O.41, Rule 23 … a remand should not generally speaking be ordered when the defect in the proceeding has been made due to the negligence of defect of the party who will benefit from the remand… the mere fact that the evidence on record is not sufficient to enable the court to come to a definite finding on the point in issue is not sufficient to enable the court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing the evidence that they desire to produce before the court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury.” .17. In Balasubramania Iyer v. Subbiah Thevar and another Balasubramania Iyer v. Subbiah Thevar and another Balasubramania Iyer v. Subbiah Thevar and another A.I.R. 1965 Mad 417:I.L.R. (1964) 2 Mad. 586, K.S.Ramamurti, J. stated the law as follows: .“If the trial court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the appellate court can remand the suit for a fresh trial. The fact that there are some defects and infirmities in the reasoning of the trial court is surely not a ground for the appellate court not to do its duty of disposing of the appeal on merits. The fact that there are some defects and infirmities in the reasoning of the trial court is surely not a ground for the appellate court not to do its duty of disposing of the appeal on merits. The appellate court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial court are correct and if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Ends of justice require the a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial court. The tendency on the part of the appellate court to remand a suit on slender grounds cannot but be strongly deprecated”. .18. In Subramanian and another v. Kaliammal and others Subramanian and another v. Kaliammal and others Subramanian and another v. Kaliammal and others (1968)2 MLJ. 548, M.M.Ismail, J. as the learned Judge then was had this to say: .“Whether it was before the amendment of the Madras High Court or after, before an appellate court can remand a matter for fresh disposal to the lower court, first it must come to a conclusion that the decision of the trial court is liable to be reversed or set aside… where a remand order is passed whether in the case where a suit has been disposed of upon a preliminary point or in a case where the suit has been disposed of an merits, the condition precedent for the exercise of the power of remand is a finding by the appellate court that the judgment and the decree of the trial court are erroneous on facts or on law and therefore liable to be reversed or set aside. So long as that finding has not been arrived at, there is no scope for the appellate court reversing or setting aside the judgment and decree of the trial court and as a consequence thereof remanding the suit for fresh disposal. The expression where the appellate court considers it necessary in the interests of justice to remand the case has to be considered with the other alternative that on having set aside the judgment and decree of the trial court the appellate court itself will have to finally dispose of the matter in the appeal. Consequently, the contrast is between the power to remand for fresh disposal and the power to decide by the appellate court itself, with the result the expression ‘in the interest of justice’ has reference to the appellate court remanding a suit for fresh disposal instead of itself deciding it. The expression interests of justice does not widen the power of the appellate court to remand a suit in the sense that irrespective of the fact whether it comes to the conclusion that the judgment and decree of the trial court are liable to be reversed or set aside or not, if the appellate court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal.” 19. In Sowdammal alias Sundarammal v. Veerammal and others Sundarammal v. Veerammal and others Sundarammal v. Veerammal and others (1970)1 MLJ. 205 , K.S.Venkataraman, J. after a thorough and threadbare analysis of the provisions and the decisions already rendered under O.41, Rule 23 has held that only after exhausting the provisions under O.41, Rules 24 to 27 the appellate court can resort to O.41, Rule 23, C.P.C. In the words of the learned Judge “ Order 41, Rule 24 deals with a case where the evidence on record is sufficient to enable the appellate court to pronounce judgment the appellate court may after resetting the issues finally determine the suit. O.41, Rule 25 deals with a case where it is necessary to take additional evidence on the fresh issues which are to be framed by the appellate court. The appellate court may have the evidence recorded and findings submitted by the trial court but should dispose of the appeal itself finally. O.41, Rule 25 deals with a case where it is necessary to take additional evidence on the fresh issues which are to be framed by the appellate court. The appellate court may have the evidence recorded and findings submitted by the trial court but should dispose of the appeal itself finally. O.41, Rule 27 deals with a situation where the parties were prevented from adducing necessary evidence before the trial court and with a case where the appellate court itself wants fresh evidence to be recorded. There again the appellate court has to keep the appeal on its file. It is therefore clear from the scheme of the rules that generally speaking only where it is not possible to apply O.41, Rules 24 to 27, a remand should be resorted to under O.41, Rule 23. It should be noted further that before remanding the case, O.41, Rule 23 itself contemplates that the appellate court should reverse or set aside the decree. Reading the rules together this provisions will not apply to a case where the District Munsif has considered the entire evidence, but in the opinion of the appellate court, a different view ought to be taken of the evidence and the appellate court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate court to consider the matter as it stands and give its own finding in reversal of the finding of the trial court. But that would not justify a remand.” 20. In Annamalai and another v. Narayanaswami Pillai and another Annamalai and another v. Narayanaswami Pillai and another Annamalai and another v. Narayanaswami Pillai and another (1971)2 MLJ. 330 :A.I.R. 1972 Mad. 316, the same learned Judge reiterated the principles and also further held that there is no inherent power of remand under Sec.151, C.P.C. 21. InRajappan v. Natesan and another Rajappan v. Natesan and another Rajappan v. Natesan and another (1972)2 MLJ. 107:A.I.R. 1973 Mad. 469, which is also by the same learned Judge, it has been held that the reception of additional evidence will not justify an order remand. The appellate court will have to keep the appeal on file and dispose it of after taking the additional evidence under O.41, Rule 28, C.P.C. 22. 107:A.I.R. 1973 Mad. 469, which is also by the same learned Judge, it has been held that the reception of additional evidence will not justify an order remand. The appellate court will have to keep the appeal on file and dispose it of after taking the additional evidence under O.41, Rule 28, C.P.C. 22. In Kannu Naicker and others v. Kalaimani and others Kannu Naicker and others v. Kalaimani and others Kannu Naicker and others v. Kalaimani and others 100 L.W. 922, K.M.Natarajan, J. has observed as follows: “The appellate court has to consider the entire evidence on record and come to a finding on the question whether any further evidence is required as per O.41, Rule 27, C.P.C. The appellate court has to further set aside the decision of the trial court.” 23. In Gangi v. Gian Gour and others Gangi v. Gian Gour and others Gangi v. Gian Gour and others A.I.R. 1991 P. & H. 175, it has been held that, “the appellate court cannot make order of remand without coming to a conclusion that the decision of the trial court is wrong and that it is wrong and that it is necessary to reverse or set aside the judgment and the decree. It has to consider the evidence on record and then arrive at a conclusion whether the finding recorded by the trial court cannot be supported on evidence on record. The appellate court ought not to reverse the judgment of the trial court merely for the purpose of remanding the case remand should be ordered if the case falls within the our corners of O.41, Rule 23 or 23-A of the C.P.C. and final judgment cannot be rendered by resorting to the provisions of O.41, Rule 24 and 25, C.P.C.” 24. From a conspectus of the various decisions referred to above the following guidelines emerge. 25. The appellate court must come to the conclusion on the pleading or on the evidence placed before it or on law that the judgment and the decree of the trial court are erroneous and therefore liable to be reversed or set aside. There must at least be a finding that there has been a misunderstanding of the pleadings of the parties or denial of an opportunity to place the materials they wanted to place before the court in support of their respective claims. There must at least be a finding that there has been a misunderstanding of the pleadings of the parties or denial of an opportunity to place the materials they wanted to place before the court in support of their respective claims. In the absence of such a finding there can be no reversal or setting aside of the judgment and the decree of the trial court and consequent remand. The appellate court thereafter has to find out under O.41, Rule 24 whether the evidence on record is sufficient to enable the appellate court to pronounce judgment and if so, after re-setting the issue if necessary finally determine the suit. This it can do even if the previous courts judgment has recorded wholly upon some ground other than that on which the appellant court proceeds. In case the previous court has omitted to .• (i) frame or try any issue (or) .• (ii) to determine any question of fact which in the opinion of the appellate court is essential to the right decision of the suit upon the merits, the appellate court can seek a finding from the trial court on such issues thus framed by the appellate court being tried by the trial court and then dispose of the appeal; .• (iii) In case where either the parties were prevented from adducing necessary evidence before the trial court or the appellate court itself wants fresh evidence to be recorded, O.41, Rule 27, Civil Procedure Code can be invoked and evidence recorded by itself or by the trial court. The appeal has to be retained by the appellate court on its file and .• (iv) Failing the above, O.41, Rule 23 is to be invoked and the case remitted. The appellate court cannot take umbrage under the tried phrase “Interests of Justice” and send back all sundry cases to the trial court without all the previous requirements having been complied with. Remand is the exception rather than the rule. .26. The appellate court cannot take umbrage under the tried phrase “Interests of Justice” and send back all sundry cases to the trial court without all the previous requirements having been complied with. Remand is the exception rather than the rule. .26. In the present case, the defendant has in his written statement denied that the appellant is the owner of the suit property and that he is in possession for 25 years at the filing of the suit, that he had put fence all round in the suit property, raised coconut and other trees, that he is living in the hut built in the property and this fact is known to everybody in the village. No doubt, no issue with regard to this was raised before the trial court. But the trial court has gone into the question as to whether the respondent has substantiated his case of possession for 25 years and found that his case has not been established. Before the lower appellate court it was contended on behalf of the respondent that the trial court ought to have framed an issue with regard to possession of the respondent for 25 years by raising a proper issue and without doing that the trial court was in error in deciding the suit against the respondent. It was contended on behalf of the appellant before the lower appellate court that the non-framing of an issue was not open to the respondent to put forward the same before the appellate court at the appeal stage. The lower appellate court observed that notwithstanding the non-raising of the issue before the trial court, the trial court ought to have raised the proper issues with regard to possession of the respondent for 25 years and his prescribing for title by adverse possession, allowed the parties to adduce evidence and in as much as it had not been done it was proper for the trial court to raise the issue regarding title of the appellant and the issue regarding possession of the respondent for 25 years whether the respondent had prescribed for title by adverse possession and remanded the matter to the trial court for decision afresh. 27. The first question that arises for consideration is whether on the facts and circumstances of the case the remand is justified. 27. The first question that arises for consideration is whether on the facts and circumstances of the case the remand is justified. It is contended by the learned counsel for the appellant that there is no pleading by the respondent that he had prescribed for title by adverse possession and the appellate court was not justified in remanding the matter to the trial court by framing the issue whether the respondent/defendant was in possession of the suit property for the last 25 years and had perfected title by adverse possession. The learned counsel further submitted that in any event the appellate court ought to have resettled the issues and determined the suit under O.41, Rule 24, C.P.C. instead of remanding the matter. .28. Let us now examine whether there is absence of pleading with regard to adverse possession. In Mantha Rama Murthys “Law of Adverse Possession” 3rd edition page 635 in the chapter relating to plea of adverse possession in a suitable learned author has referred to Mohammed Sharif Kasamji Rangawala v. Amibai Allabux Rangawala Mohammed Sharif Kasamji Rangawala v. Amibai Allabux Rangawala Mohammed Sharif Kasamji Rangawala v. Amibai Allabux Rangawala A.I.R. 1984 Guj. 90 and observed that the intention of the party concerned is to be gathered primarily from the tenor and terms of his pleading taken as a whole a person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was one and undisturbed. There are all questions of fact and unless they are asserted and proved a plea of adverse possession cannot be inferred from them. Therefore in normal cases an appellate court will not allow the plea of adverse possession to be raised before it. There are no doubt some cases in which the plea will be allowed because in some form the allegation upon which it can be raised was made at the time and the facts necessary to prove the plea were brought before the court and proved. In Municipal Board Etawah v. Mst.Ram Sri Municipal Board Etawah v. Mst.Ram Sri Municipal Board Etawah v. Mst.Ram Sri A.I.R. 1931 All. 620, the plaintiffs based their suit on title extending over a period of thirty years. In Municipal Board Etawah v. Mst.Ram Sri Municipal Board Etawah v. Mst.Ram Sri Municipal Board Etawah v. Mst.Ram Sri A.I.R. 1931 All. 620, the plaintiffs based their suit on title extending over a period of thirty years. The plaintiffs case was that the first plaintiff was the owner of the land and she had on that plot four small shops fetching a rent of about Rs.80 a month. Plaintiff 2 was her lessee. The shops were burnt down in June, 1926 and the land was laid vacant. They made an application to the Municipal Board for permission to build again on the land, but this permission was refused on 27th August, 1926, on the ground that the Municipal Board was the owner of the land and not the plaintiffs. It was held that a plea of adverse possession extending over a period of thirty years could be read into this claim and therefore, although it was not specifically raised in the plaint it could be raised at a later stage. In other words, what they held was that the plea of adverse possession was included in the plea of title. In coming to this conclusion the learned Judges no doubt took notice of the fact that plaintiffs had clearly stated that actual physical possession of the property in dispute was with them. This decision was referred to and followed by a learned single Judge of this Court in S.A.No.2367 of 1976 by judgment dated 2. 1980. .29. In the same book “Law of Adverse Possession” at page 637, it is stated as follows: .“Law is well-settled that if on construction of the pleading of the parties a case of adverse possession has been made out and such a plea is not only implict but also the parties are fully conscious of such a plea, even though the expression ‘adverse possession’ has not been used and specific issue has not been struck, the final court of appeal on the basis of findings recorded by the courts below, can ultimately decide the question of adverse possessione” 30. In Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu I.L.R. 24 Mad. In Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu Vasudeva Padhi Khadanga Garu v. Maguni Dewan Bakshi Maha Partulu Garu I.L.R. 24 Mad. 387, it has been held that even if the nomenclature of adverse possession did not find a place in the pleadings if it was pleaded that the person had been in possession and enjoyment of the suit property in his own right it would be enough pleading of adverse possession. 31. No doubt the plea of adverse possession must be raised in the pleading must be put in issue, evidence let in, opportunity to refute the case must be made out by the party and availed by the other party. It cannot be allowed to be flung as a surprise on an unsuspecting party for the first time in appeal. 32. It has been held in P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar P.V.Karuppanan Ambalam v. Pandari Sundara Raja Ayyar A.I.R. 1940 Mad. 71, that “when a plaintiff bases his suit on title, he can claim relief on the strength of his mere anterior possession alternative as an independent ground of claim by itself. A decree can be passed on the strength of plaintiffs possession even if such possession is not specifically made the ground of relief in that plaint if the opposite party is not prejudiced to any extent by the new case being sprung upon him without any previous indication thereof in the plaint.” The learned Judge observed in page 72 as follows: “There is no flexible rule that under no circumstances can a decree be passed on the strength of plaintiffs possession unless such possession is specifically made the ground of relief in the plaint. The cases (extracted are merely illustrations of the salutary principle that parties should ordinarily be confined to the case raised by them in their pleadings and that no relief should be awarded on the basis of a new case not disclosed in the pleadings. The underlying principles is of course that no party should be taken by surprise but should have a fair and adequate opportunity to meet the case of his opponent.” 33. In Kakaralapudi Jankiramaraju v. Gedala Appalaswami Kakaralapudi Jankiramaraju v. Gedala Appalaswami Kakaralapudi Jankiramaraju v. Gedala Appalaswami (1954)2 MLJ. 773 : A.I.R. 1954 Mad. The underlying principles is of course that no party should be taken by surprise but should have a fair and adequate opportunity to meet the case of his opponent.” 33. In Kakaralapudi Jankiramaraju v. Gedala Appalaswami Kakaralapudi Jankiramaraju v. Gedala Appalaswami Kakaralapudi Jankiramaraju v. Gedala Appalaswami (1954)2 MLJ. 773 : A.I.R. 1954 Mad. 772: I.L.R. 1954 Mad. 980, it has been held that, “The question of adverse possession is essentially a question of fact A party relying upon it should expressly plead and ask for an issue to be raised in respect thereof.” 34. If there is no need for elucidation of further facts the stringent condition with regard to absence of pleadings cannot be blindly applied. We have already noticed that the respondent has specifically pleaded that he had been in possession of the property for 25 years he had put up a hut that he is living there and has raised several trees and that this fact is known to everyone in the village. The trial court has also proceeded on the assumption that the respondent had pleaded adverse possession and had also gone into the question referred to and discussed the documents filed on the side of the respondent and come to the conclusion that the respondent had not established his case. As already noticed no issue in so may words was raised. But the parties were aware of what the respondents case was, led evidence and the trial court decided the question. 35. The lower appellate court, however ignored the criteria to be satisfied for remitting the matter to the first court. Indeed as contended by the learned counsel for the appellant it lost sight of the fact that the entire evidence bearing on the plea of the respondent relating to his alleged possession and denial of title to the plaintiff had been exhaustively considered by the trial court and that there was absolutely no need to remand the matter. The lower appellate court ought to have re-settled the issues, if necessary and decide the question. 36. The lower appellate court has also not entered a finding that the judgment and the decree of the trial court are erroneous on the pleadings or the evidence placed before it or on law and therefore liable to be reversed or set aside. The lower appellate court ought to have re-settled the issues, if necessary and decide the question. 36. The lower appellate court has also not entered a finding that the judgment and the decree of the trial court are erroneous on the pleadings or the evidence placed before it or on law and therefore liable to be reversed or set aside. There is also no finding by the lower appellate court that there was a denial of an opportunity to either of the parties to place the materials, they wanted to place before the court in support their respective claims. The parties also were not prevented from adducing the necessary evidence before the trial court. It is also not found by the lower appellate court that the trial court has omitted to determine any question of fact which in the opinion of the appellate court is essential to the right decision of the suit upon the merits. 37. It has already been noticed that there are sufficient pleadings with regard to title of the plaintiff possession and enjoyment of the property by the defendant/respondent and which would satisfy the requirement of pleadings. The order of remand is therefore uncalled for and the same is set aside. The matter is remitted to the lower appellate court for a decision on the issues additionally framed by it on the materials, oral and documentary evidence on record. The lower appellate court is directed to decide the appeal within a period of three months from the date of receipt of the order in the C.M.A. No costs. 38. Before parting with the case I wish to place on record the excellent assistance rendered by Mr.A.Muthukumar as amicus curiae.