ORDER: The lower appellate Court had remanded the matter for framing an issue with regard to adverse possession and ouster and for letting in evidence in respect of certain documents that were produced pending appeal. This appeal is against the order of remand. 2. The petitioners are the defendants 1 to 5 and 7 to 11 in the suit O.S. No.181 of 1991 filed by the respondent herein. The suit ws for declaration of title, for possession and for interim injunction. The case of the respondent is that the suit property originally belonged to his father Ratna Chettiar (RC) and his three brothers Rangasamy Chettiar, Velayudha Chettiar and Narayanasamy Chettiar (NC and 2nd defendant in the suit). The four brothers divided the properties on 10.10.1957 under a registered partition deed. A registration copy of this deed is marked as Ex.A-1. A, B, C and D Schedule properties were allotted to each of the parties and E schedule property in Ex.A-1 was kept in common. It is the respondent’s case that if any one of the sharers lost any item allotted to his share, the other sharers shall compensate for the said loss or the sharer who lost can be compensated from E Schedule property. It is the case of the respondent that RC lost about three items of properties that were allotted to him and therefore, his three brothers agreed that RC should take E schedule property absolutely. This was in 1965. From that date, RC had been in possession and enjoyment of this property paying kist, patta etc. RC had two sons, the respondent and one Ramasamy Chettiar. They entered into a partition under a registered partition deed dated 17.11.1987. This document is marked as Ex.A11. Under Ex.A11, the suit property was allotted to the share of the respondent. According to the respondent, he is in possession and enjoyment of the suit property in his own right and he has prescribed title by adverse possession and ouster. There is a long standing enmity between the respondent’s family and the petitioners and since there was interference with possession, the suit was filed. 3. The Trial Court framed four issues: (1) Whether the suit property is the separate property of the plaintiff? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the plaintiff is entitled to declaration and permanent injunction? 3. The Trial Court framed four issues: (1) Whether the suit property is the separate property of the plaintiff? (2) Whether the suit is bad for non-joinder of necessary parties? (3) Whether the plaintiff is entitled to declaration and permanent injunction? (4) To what other reliefs, is the plaintiff entitled to? 4. The suit was dismissed holding that the E Schedule property is not the respondent’s separate property but remained a common property. Against that, the respondent filed A.S.No.104 of 1996. Along with this, he filed three applications. I.A. Nos.162 of 1997, 166 of 1997 and 163 of 1999. The learned Subordinate Judge, Panruti dismissed I.A.162 of 1997, but allowed I.A.166 of 1997 and 163 of 1999. Thereafter, the learned Judge held that since these documents have been received, the parties should be given an opportunity to let in oral evidence relating to these documents. The learned appellate Judge also found that since the trial Court had failed to frame an issue regarding ouster this should also be done and a finding given regarding this issue. So holding, the learned appellate Judge remanded the matter to the trial Court for deciding the matter in accordance with law after giving opportunity to either parties and after framing an issue regarding adverse possession and ouster. 5. Mr.K.Kannan, learned counsel for the petitioners submitted that the order of remand is illegal and that the appellate Judge had not even set aside the finding of the trial Court that the E schedule property continued to be enjoyed in common nor had it accepted the case of the respondent that he was in exclusive possession of the E schedule property either pursuant to the oral understanding or adverse to the rights of the other sharers. In these circumstances, it was not open to the Court below to remand the matter for fresh disposal in accordance with law. He also referred to the order passed in I.A.No.166 of 1997 and 163 of 1999 and submitted that the Court below failed to see that under O.41, Rule 27, the Madras amendment requires the appellate Court to be satisfied that the evidence could not be produced earlier before the decree under appeal was passed. He relied on the following judgments: Ananthachari, S.N. v. A.C. Rajagopalan, (2000)4 C.T.C. 658 and Ignasiammal v. Mrs.Fathima Beevi, (1997)2 C.T.C. 313 . 6. He relied on the following judgments: Ananthachari, S.N. v. A.C. Rajagopalan, (2000)4 C.T.C. 658 and Ignasiammal v. Mrs.Fathima Beevi, (1997)2 C.T.C. 313 . 6. Mr.Gururaj, learned counsel for the respondent on the other hand submitted that there ws no error in the approach of the Court below. All the documents that were sought to be produced before the Court under I.A.No.166 of 1997 and 163 of 1999 were obtained only during the appeal and therefore, the provisions of O.41, Rule 27B was satisfied. He referred to the following judgments: (1) Amiappa Nainar v. Annamalai Chettiar, (1972)1 M.L.J. 317 to show how the document referred to in I.A.No.163 of 1999 which is a sale deed dated 24.3.1977 was relevant; (ii) A.P.Wakf Board v. Mirza Nizamuddin Baig, A.I.R. 1991 S.C. 87 where, for want of evidence, the Supreme Court remanded the matter to the trial Court for fresh disposal; (iii) Kamala Ranjan v. Baijnath, A.I.R. 1951 S.C. 1 in which the Supreme Court held that when appellate Court allows additional evidence to clear up certain matter and for arriving at a proper decision, no interference is warranted in the exercise of the Court’s decision; (iv) K.Venkataramiah v. Seetharama Reddy, A.I.R. 1963 S.C. 1526: (1964)1 M.L.J. (S.C.) 13: (1964)1 S.C.J. 37: (1964)1 An.W.R. (S.C.) 13 in which the Supreme Court held that the provision to record reasons for admitting evidence in the appellate stage is not mandatory and a failure to record reasons will not vitiate such admission; (v) State of W.B. v. Dalhousie Institute Society, A.I.R. 1970 S.C. 1778 to show that when the commencement of possession was found to be illegal, then such possession was prima facie adverse; (vi) Premier Automobiles Ltd., Bombay v. Kabirunissa, A.I.R. 1991 S.C. 91 in which the Supreme Court remitted the case to the appellate Court for fresh decision after receiving the additional evidence; (vii) Collector of Bombay, A.I.R. 1951 S.C. 469 was referred to, to show how the question of adverse possession should be decided; (viii) Muthuveeran Chetty v. Govindan Chetty, (1961)2 M.L.J. 470 : A.I.R. 1961 Mad. 518 was relied on to show that when joint family property is allotted to one member, no transfer of property is involved and therefore, no document in writing in support of the assignment is required under Sec.113 of the Transfer of Property Act. 7. 518 was relied on to show that when joint family property is allotted to one member, no transfer of property is involved and therefore, no document in writing in support of the assignment is required under Sec.113 of the Transfer of Property Act. 7. I do not intend to go into the question of whether the respondent is entitled to plead adverse possession when his case that he was given E schedule property by agreement was rejected by the trial Court. That should be decided by the Court on fact. Nor do I intend to go into the question whether E schedule property was given by the other brothers to the respondent under the agreement not set down in writing. The question mainly urged here is with regard to the legality of the order of remand and the order passed for receiving additional evidence. As regards the document that were sought to be produced in evidence under I.A.No.166 of 1997 and 163 of 1999, the Court below had found that all those documents were obtained by the respondent only after the trial Court had disposed of the suit and the Court was satisfied that the non-production of the documents earlier was not because the respondent lacked due diligence. Therefore, I do not think, the exercise of discretion by the appellate Court in this regard is any way illegal or irregular. 8. Even with regard to the documents produced under I.A.No.163 of 1999, the Court was satisfied that not only that they were public documents, but also that they related to the suit property and were necessary for deciding the issue. Therefore, the decision of the appellate Court with regard to I.A.No.163 of 1999 is also not interfered with. It is always open to the petitioner herein to demonstrate that these documents though produced are either not relevant or do not in any advance the case of the respondent and most importantly that they have not been proved in accordance with law. The receipt of those documents cannot be shut out at the threshold. 9. With regard to the order of remand, the appellate Judge has found that no issue was framed with regard to ouster. No doubt, the respondent had pleaded adverse possession. But, it is not enough merely to plead adverse possession and he should also prove them. The receipt of those documents cannot be shut out at the threshold. 9. With regard to the order of remand, the appellate Judge has found that no issue was framed with regard to ouster. No doubt, the respondent had pleaded adverse possession. But, it is not enough merely to plead adverse possession and he should also prove them. If the evidence on record is sufficient to support his case of adverse possession and ouster, the appellate Court has the power to determine them. The omission to frame an issue relating to ouster cannot be considered fatal to the case unless the appellate Court had on examination of the materials before it found that because of the failure to frame the issue the parties had proceeded with the trial without knowing that the question of ouster was an issue to be decided and had therefore not adduced evidence in this regard. No such exercise by the appellate Court is evident here. The mere production of additional evidence appears to have convinced the appellate Court of the necessity to remand the matter. If the parties had been fully aware of their case, then there is no prejudice. O.41, Rule 27, C.P.C. empowers the Court to allow not only documentary evidence but also oral evidence, if the condition stipulated therein are satisfied. 10. In the decision in Ananthachari, S.N. v. A.C. Rajagopalan, (2000)4 C.T.C. 658 , it was held thus: "While allowing the I.A.No.61 of 1998 filed under O.41, Rule 27 of the C.P.C., the appellate Court observed that for inadequacy of evidence plaintiff’s case has been dismissed by the trial Court and that now before the appellate Court, some more evidence has been placed and it is highly necessary to accept those evidence and hence remanded the matter to the trial Court for fresh trial to be conducted. While doing so, the appellate Court has miserably failed to take into consideration the requirements of O.41, Rule 23 regarding remand. As well pointed out in the judgment reported in Ignasiammal v. Mrs.Fathima Beevi, (1997)2 C.T.C. 313 , neither the appellate Court seems to have been bothered about the requirements of O.41, Rule 27 nor O.41, Rule 23. At both scores, absolutely no legal consideration or norms applied by the first appellate Court and in fact the discussion of the first appellate Court pertaining to both these vital aspects of law is absolutely nil. At both scores, absolutely no legal consideration or norms applied by the first appellate Court and in fact the discussion of the first appellate Court pertaining to both these vital aspects of law is absolutely nil. Hence, it is appropriate only for the appellate Court to decide about these two points in application of the legal yardstick as imposed by the relevant provisions of law and propounded by the said judgment." 11. In the decision reported in Ignasiammal v. Mrs.Fathima Beevi, (1997)2 C.T.C. 313 , it was held thus: "The observation of the learned subordinate Judge that the evidence adduced by the plaintiff and the defendants does not support their respective case cannot be a ground for remanding the suit. It has been held in the decision reported in Visalakshmiammal v. Dhanalakshmiammal, (1989)2 L.W. 414 that "the unsatisfactory consideration of an issue by the first Court, and the non-advertence to the judicial precedents by the first Court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacunae, if in fact they are present, can be rectified by the appellate Court itself. Therefore, even if the evidence of P.W.1 and D.W.1 does not establish their respective rival contentions, it can be rectified by the appellate Court itself and the matter need not be remanded to the trial Court." 12. The case relied on by the learned counsel for the petitioners is squarely on the point. If the appellate Court, on the materials before it, finds that though the issue relating to adverse possession and ouster has not been framed, yet, there are materials sufficient to decide the issue and still comes to the conclusion that the trial Court’s finding that the respondent is in possession not in his own right, but only on behalf of the joint family, is correct then, the order of remand is an unnecessary exercise. The decisions cited by the learned counsel for the petitioners and extracted in the paragraph 9 above are squarely on the point. The impugned order is therefore set aside. The matter is remanded to the Sub Court, Panruti. The first appellate Court is directed to consider the materials before it in view of his framing the issue regarding adverse possession and ouster and dispose of the appeal in accordance with law. The C.M.A. is allowed. The impugned order is therefore set aside. The matter is remanded to the Sub Court, Panruti. The first appellate Court is directed to consider the materials before it in view of his framing the issue regarding adverse possession and ouster and dispose of the appeal in accordance with law. The C.M.A. is allowed. No costs. C.M.P. No.6965 of 2000 is closed.