A.S.Venkatachalamoorthy, J.: One Jayaraman as plaintiff filed a suit in O.S. No.160 of 1974 on the file of Subordinate Judge, Vellore, (which hereinafter referred to as ‘the first suit’) praying the Court to grant a decree directing division of ‘A’ and ‘B’ scheduled properties into 28 shares and allot to him his 49/168th share and put him in separate possession and enjoyment of the properties that may be allotted to him and for appointment of a Commissioner to divide the suit properties and for other reliefs. 2. In the said suit, his two brothers by name Marappa Reddiar and Kanniappa Reddiar are defendants 1 and 2. Kalangammal, Rajammal and Vedavalli Ammal are defendants 4, 5 and 6 respectively and are the sisters of plaintiff. The third defendant Kullammal is the mother of the plaintiff. Muthappa Reddy is the brother of the third defendant, who is 12th defendant in the suit. Pending proceedings, 3rd, 5th and 12th defendants died and their legal representatives are on record. 3. There are two schedules to plaint ‘A’ and ‘B’. ‘A’ schedule consists of 16 items, while ‘B’ schedule consists of 28 items. Out of the 28 items, items other than 3 to 6 and 20 in ‘B’ schedule are the properties in the name of the first defendant Marappa Reddiar as per the settlement deed, settlor being the third defendant. Documents relating to items 9 to 19 and 27 in ‘B’ schedule stand in the name of the 12th defendant. 4. First defendant Marappa Reddiar in O.S. No.160 of 1974 on the file of Sub Court, Vellore, as plaintiff, filed a suit earlier in O.S. No.176 of 1971 on the file of District Munsif Court, Sholingar, which was later on transferred to the file of Sub Court, Vellore and renumbered as O.S. No.260 of 1974 (which hereinafter referred to as ‘the 2nd suit’). The suit is one for declaration and injunction, filed against Jayaraman as first defendant, who is the plaintiff in the first suit O.S. No.160 of 1974 and Kanniappan as second defendant, who is also second defendant in the first suit. The scheduled properties in the 2nd suit consist of two schedules ‘A’ and ‘B’, which is nothing but ‘B’ schedule in O.S. No.160 of 1974. The scheduled properties in the 2nd suit consist of two schedules ‘A’ and ‘B’, which is nothing but ‘B’ schedule in O.S. No.160 of 1974. ‘A’ schedule in O.S. No.260 of 1974 are the properties in the name of Marappa Reddiar, i.e., plaintiff in the 2nd suit and ‘B’ schedule are the properties settled in the name of Marappa Reddiar by mother Kullammal. 5. There was joint trial of these two suits viz., O.S. No.160 of 1974 as well as O.S. No.260 of 1974 and by a common judgment dated 23.10.1980, the learned Subordinate Judge disposed of both the suits and it has been declared that the plaintiff in O.S.160 of 1974 viz., Jayaraman shall be entitled for 8/28th share in the entire ‘A’ Scheduled properties in O.S. No.160 of 1974 and in items 1, 2, 7, 19, 21 to 28 in ‘B’ Scheduled properties. The suit O.S. No.260 of 1974 was dismissed with reference to ‘A’ Scheduled properties in that suit (i.e.) 2nd suit and was decreed with reference to ‘B’ Scheduled properties in that suit. 6. The resultant position is, the plaintiff Jayaraman in O.S. No.160 of 1974 shall be entitled for 8/28th share in the entire ‘A’ scheduled properties and in ‘B’ scheduled properties, except items 3 to 6 and 20. Marappa Reddiar, first defendant in O.S. No.160 of 1974 (plaintiff in O.S. No.260 of 1974) shall be entitled for items 3 to 6 and 20 in ‘B’ Scheduled properties in O.S. No.260 of 1974. The 12th defendant (since dead) in O.S. No.160 of 1974 and the legal representatives D-17 to D-20, who were brought on record are not entitled for items 9 to 19 and 27 in ‘B’ Scheduled properties in O.S. No.160 of 1974. 7. For the purpose of convenience, hereinafter we adopt the cause title as given in O.S. No.160 of 1974 on the file of Sub Court, Vellore. 8. The first defendant being aggrieved by the decree and judgment in O.S. No.160 of 1974 on the file of Sub Court, Vellore filed A.S. No.49 of 1982 before this Court. 18th defendant, who is the legal representative of the 12th defendant filed A.S. No.288 of 1983. 8. The first defendant being aggrieved by the decree and judgment in O.S. No.160 of 1974 on the file of Sub Court, Vellore filed A.S. No.49 of 1982 before this Court. 18th defendant, who is the legal representative of the 12th defendant filed A.S. No.288 of 1983. The plaintiff, who is the first defendant in O.S. No.260 of 1974 being aggrieved by the decree and judgment in O.S. No.260 of 1974, preferred an appeal before the District Court, which was later on transferred to the file of this Court and renumbered as A.S. No.837 of 1989. At this juncture, it may be stated only the above three appeals were filed by the parties to the above proceedings being aggrieved by the decree and judgment in the two suits referred supra. 9. The learned single Judge of this Court, by a common judgment, disposed of all the three appeals A.S. Nos.49 of 1982, 288 of 1983 and 837 of 1989 on 30.12.1994 setting aside the decree and judgment in both the suits on the file of Sub Court, Vellore and remitting the matter to trial Court for fresh disposal in the light of the observations made in his judgment. 10. The plaintiff, being aggrieved by the said judgment of the learned single Judge, preferred L.P.A. No.65 of 1996 as against the judgment in A.S. No.288 of 1983; L.P.A. No.66 of 1996 as against the judgment in A.S. No.837 of 1989 and L.P.A. No.67 of 1996 as against the judgment in A.S. No.49 of 1982. In the above facts and circumstances, this Court can dispose of all the above appeals by this common judgment. 11. Before we proceed to refer to the case of the respective parties, we deem it necessary to first consider the preliminary objection raised by Sri.T.R. Mani, senior counsel appearing for the respondents. The learned senior counsel submitted that inasmuch as the judgment of the learned single Judge has not rendered any decision but has only remitted the matter back to the trial Court pointing out certain aspects of the matter, which the learned single Judge has to consider, the present Letters Patent Appeals would not lie. The learned senior counsel submitted that inasmuch as the judgment of the learned single Judge has not rendered any decision but has only remitted the matter back to the trial Court pointing out certain aspects of the matter, which the learned single Judge has to consider, the present Letters Patent Appeals would not lie. In other words, the learned Senior Counsel contended that since the entire matter is now thrown open by virtue of remittal order and the Court has been directed only to consider the matter in the light of the observations made in that judgment, it cannot be said that the learned single Judge decided any issue against the appellants, which alone would enable the plaintiff to file these appeals. 12.Per contra, the learned counsel for the appellant contended that inasmuch as by the order in question the proceedings before this Court has been terminated, and that apart the learned single Judge has also rendered certain findings, which would certainly affect the merits of controversy between the parties in the suits, the Letters Patent Appeals are maintainable. 13. Let us proceed to consider various rulings on this point first and sum up the legal position. (a) The earliest ruling that can be referred to is the one reported in Gopinath Pati v. Moheshwar Pradhan, I.L.R. 35 Cal. 1096, where the Division Bench of Calcutta High Court ruled that an order of remand passed by a single Judge of the High Court is a ‘judgment’ within the meaning of Sec.15 of the Letters Patent and an appeal lies from such an order under the Charter. That was the case where the suit was filed by the plaintiff as a tenant to recover possession of a certain holding. The trial Court decreed the suit, but on appeal, the Subordinate Judge set aside the decree and judgment of the trial Court mainly on the ground that plaintiff had not been able to prove his title to the land, and that occupancy rights purchased by defendants were transferable. The plaintiff appealed to the High Court and the second appeal was heard by the learned single Judge, who set aside the decree and judgment and remanded the case for a satisfactory finding on the question viz., whether the holding in suit was transferable by local usage. Against that order of remand, defendants appealed under Sec.15 of the Letters Patent. The plaintiff appealed to the High Court and the second appeal was heard by the learned single Judge, who set aside the decree and judgment and remanded the case for a satisfactory finding on the question viz., whether the holding in suit was transferable by local usage. Against that order of remand, defendants appealed under Sec.15 of the Letters Patent. A preliminary objection was taken that no appeal would lie because the order of the second appellate Court is not ‘judgment’ within the meaning of Sec.15 of the Charter Act. The Division Bench overruled the preliminary objection and held that the Letters Patent Appeal is maintainable, following the earlier ruling of that Court in L.P.A.72 of 1907, decided on 19th July, 1907. (b) In T.V.Tuljaram Row v. M.K.R.V.Alagappa Chettiar, 21 M.L.J. 1: I.L.R. (1912) 35 Mad. 1, a Full Bench of Madras High Court ruled that an order of a single Judge on the original side refusing to frame an issue asked for by one of the parties is not a ‘judgment’ within clause 15 of the Letters Patent and is not appealable. The Chief Justice Sir Arnold White in his judgment ruled as under: “The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding, I think the adjudication is a judgment within the meaning of the clause. ...” Justice Krishnaswamy Ayyar in his separate, but concurring judgment observed thus, “... I would only stop here to remark that a decision which determines the cause or proceeding so far as the particular Court is concerned, though it refuses to adjudge the merits, must also be deemed to be a judgment: for otherwise the rejection of a plaint for defect of form or insufficiency of Court fee or a return of it for want of jurisdiction would be outside the definition of the learned Chief Justice which could hardly have been his meaning. ...” (c) In the decision reported in Punnayya v. Parandamayya and others, A.I.R. 1927 Mad. 317, the Division Bench held that an order of a single Judge calling for a finding on an issue newly framed by him, or old, whether raised in the pleadings or not is not a judgment within Clause 15, for no right or title can be said to be adjudicated upon by the mere framing of an issue and by directing that issue to be tried. (d) A person brought a suit for damages, but became insolvent during the pendency of the suit. The suit was thereafter dismissed for Official Assignee’s failure to furnish security. The appellate Court however held that the claim being one for damages did not vest in Official Assignee and remanded the case for trial on merits. The question arose whether an appeal would arise under Sec.109(a) of the Code of Civil Procedure against the said order of remand. The Privy Council in Abdul Rahman and others v. Cassim & Sons and another, 64 M.L.J. 307: L.R. 60 I.A. 76: A.I.R. 1933 P.C. 58, ruled that the test of finality is whether the order ‘finally disposes of the rights of the parties’, but as the appeal only left them to be determined by the Court in the ordinary way and even after the order, suit is still a live suit in which the rights of parties are still to be determined, no appeal lies against it under Sec.109(a) of the Code. (e) Another ruling that has to be referred is the one reported in A.B.M.S. Mohamed Ali Maracoir and others v. P.S.N.S. Ambalavana Chettiar, (1948)2 M.L.J. 191 : A.I.R. 1949 Mad. 169, where the Court ruled that where the High Court decides that the plaintiff would be entitled to damages for breach of warranty and to enable it to pass a decree directs the trial Court to take fresh evidence that may be adduced by the parties on a certain issue in the case as regards the difference in the price of the goods on the date of receipt and the date of delivery and send up its findings on the evidence so recorded, the order is not a ‘judgment’ under Clause 15 of the Letters Patent and no appeal therefore lies from it. The Division Bench in that judgment referred to the judgment reported in T.V.Tuljaram Row v. M.K.R.V.Alagappa Chettiar, 21 M.L.J. 1: I.L.R. (1912) 35 Mad. 1 and in particular to paragraph 14 and distinguished it by saying that those observations are general in nature have reference only to cases where there are decrees of the nature of preliminary decrees for accounts in a suit for dissolution of partnership or in a suit for partition or a preliminary decree for sale in a mortgage suit. The Court in that case came to the conclusion that the order calling for a finding on a particular issue is not a judgment within the meaning of Clause 15 of Letters Patent. At this juncture it may be mentioned that subsequent to the above ruling, we have the ruling of the Full Bench of Madras High Court reported in Central Brokers v. Ramnarayana Poddar and Co., (1954)2 M.L.J. 525 : A.I.R. 1954 Mad. 1057 (F.B.). (f) The Supreme Court in Asrumati Debi v. Kumar Rupendra Deb Raskot and others, (1953)1 M.L.J. 710: 1953 S.C.J. 300: A.I.R. 1953 S.C. 198 ruled that an order for transfer of a suit is not a judgment and hence not appealable as the order neither affects the merits of the controversy between the parties in the suit itself, nor it terminates or dispose of the suit on any ground. In fact in paragraph 7 of the said judgment, the Supreme Court referred to the ruling of the Full Bench of the Madras High Court reported in T.V.Tuljaram Row v. M.K.R.V.Alagappa Chettiar, 21 M.L.J. 1: I.L.R. (1912) 35 Mad. 1 In the latter part of the said judgment the Supreme Court ruled thus: "... The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits. This view, which is implied in the observation of Sir Richard Couch, C.J., quoted above, has been really made the basis of the definition of ‘judgment’ by Sir Arnold White, C.J., in the Full Bench decision of the Madras High Court to which reference has been made vide: 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.). This view, which is implied in the observation of Sir Richard Couch, C.J., quoted above, has been really made the basis of the definition of ‘judgment’ by Sir Arnold White, C.J., in the Full Bench decision of the Madras High Court to which reference has been made vide: 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.). According to White, C.J., to find out whether an order is a ‘judgment’ or not, we have to look to its effect upon the particular suit or proceeding in which it is made. If its effect is to terminate the suit or proceeding, the decision would be a ‘judgment’ but not otherwise. ..." (g) The next ruling that can be usefully referred to is the one reported in Central Brokers v. Ramnarayana Poddar and Co., (1954)2 M.L.J. 525 : A.I.R. 1954 Mad. 1057 (F.B.). The question as to whether an order made under Sec.10 of Code of Civil Procedure or any other provision of law for the stay of trial of a suit is not a judgment within the meaning of that term in Clause 15 of the Letters Patent was referred to that Full Bench. The Full Bench after referring to the ruling reported in 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.) observed that the reasoning of the learned Judges that the order did not put an end to the proceedings but merely adjourned the suit if the appellant complied with the terms, and if not, the proceedings go on, is perfectly correct, affirmed it as correct. After considering a number of rulings, the Court observed thus: "Most of the cases cited at the Bar have been noticed above and though it is difficult to ascertain whether a particular decision is a judgment or not by reference and comparison to the discussion regarding the nature of similar or allied orders, the resulting conclusion is that if a decision satisfies he test of finality as laid down by the Supreme Court or is one concerning the merits of the controversy between the parties then it must be termed to be a judgment appealable under Clause 15 of the Letters Patent. The Letters Patent itself in Clauses 39 and 40 uses the word "final judgment" and therefore it is clear that there can be a final and a preliminary judgment. The Letters Patent itself in Clauses 39 and 40 uses the word "final judgment" and therefore it is clear that there can be a final and a preliminary judgment. As stated by Lord Selborne L.C. in ‘(1885)14 Q.B.D. 627 (E)‘, to constitute an order a final judgment nothing more is necessary than that there should be a proper ‘litis contestatio’ and a final adjudication between the parties." (h) In In re. A.K.D.Rangaswami Raja and another, (1957)1 M.L.J. 364 : A.I.R. 1957 Mad. 582, the Court ruled that an order directing that a party shall have liberty to adduce further evidence on certain issue and that the opposite side will be given the fullest opportunity of meeting that evidence is not a judgment within the meaning of Clause 15 and the appeals against such order is not competent. (i) In Shah Babulal Khimji v. Jayaben D.Kania and another, A.I.R. 1981 S.C. 1786, the Supreme Court had to consider whether an order refusing to appoint receiver or to grant an interim injunction is appealable. The Court answered in the positive. The Court ruled that it is undoubtedly a judgment within the meaning of Letters Patent both because O.43, Rule 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of Clause 15 of the Letters Patent. A reading of the judgment would show that the Apex Court referred to the ruling of the Calcatta High Court reported in The Justices of the Peace for Calcutta v. The Oriental Gas Co., (1872)8 B.L.R. 433, wherein the judgment was rendered by Sir Couch, C.J., on interpretation of Clause 15 of the Letters Patent so also the ruling reported in 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.) by Sir Arnold White, C.J. The Supreme Court in paragraph 19 has indicated that the ruling in 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.) seems to have found favour with most of the High Courts in India and in paragraph 91 set out the test prescribed in the judgment of Sir Arnold White, C.J. However in a subsequent paragraph i.e., in paragraph 93, after referring to both these judgments it is observed as under: "... The correct test seems to lie somewhere in between the tests laid down by the aforesaid jurists." In the later part of the judgment, Supreme Court referred to the earlier ruling of the Supreme Court reported in Shanti Kumar R.Canji v. Home Insurance Co. of New York, A.I.R. 1974 S.C. 1719: (1975)1 S.C.J. 187, in which case the Supreme Court was considering the effect of an order passed by the trial Judge allowing an amendment and a question of issue as to whether an order is a judgment within the meaning of Clause 15 of the Letters Patent. In that ruling the Supreme Court observed as under, "... The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. ..." In Shah Babulal Khimji v. Jayaben D.Kania, A.I.R. 1981 S.C. 1786, in para 113, the Supreme Court clearly ruled that the term ‘judgment’ should receive much wider and more liberal interpretation than the word ‘judgment’ used in the Code of Civil Procedure. In para 120 of the said judgment, the Supreme Court gave as many as 15 illustrations of interlocutory orders. At this juncture it has to be pointed out that the Supreme Court considered the entire matter with reference to interlocutory orders only. (j) A Division Bench of Madras High Court in Ramasayee Agro-Industries Limited v. The India Sugars Refineries Limited, (1983)1 M.L.J. 91 : A.I.R. 1983 Mad. 194 had to consider the question as to whether an order refusing to issue subpoena to a witness is a judgment or not. The Court ruled since it causes serious injury to party concerned, the said order is a judgment and hence appealable under Clause 15 of the Letters Patent. The Court while so holding placed reliance on the ruling of the Supreme Court reported in A.I.R. 1981 S.C. 1786 and quoted a passage found at page 1816, which reads as under: “Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate Court in appeal against the final judgment.” Hence, if an order decides matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned, it is a judgment. (k) In the decision reported in Somasundaram v. Thangaraju, (1997)2 M.L.J. 228 : (1997)1 L.W. 506 , the Division Bench of Madras High Court ruled that against an order dismissing the application to set aside the Court sale, preferred under O.21, Rule 90 of the Code of Civil Procedure, no appeal is maintainable under Clause 15 of the Letters Patent.(l) A question arose as to whether an appeal under Clause 15 of the Letters Patent is competent against the judgment of a learned single Judge of the High Court rendered under Sec.82 of the Employees’ State Insurance Act, 1948 (Act 34 of 1948). A Division Bench of this Court in the ruling reported in The Employees State Insurance Corporation, Madras v. M/s.Shanmugha Theatres, Coimbatore and others, (1997)3 L.W. 448 answered in the affirmative. The Division Bench considered various rulings and in paragraph 45 of the judgment, after referring to 21 M.L.J. 1: I.L.R. 35 Mad 1 (F.B.) observed as under: “The same has stood the test all these days and has received universal acceptance, when it gives us the answer to the question what is the meaning of the word, ‘judgment’, found in Clause 15 of the Letters Patent. To put it shortly, a judgment is that adjudication, whatever its form may be and whatever may be the nature of the application in which it is made, if its effect be to put an end to the suit or proceeding so far as the Court before which such suit or proceeding is pending is concerned.” [Italics supplied] 14. The learned senior counsel who raised the preliminary objection placed reliance on the rulings on: (i) Jethanand & Sons v. State of U.P., (1962)2 M.L.J. (S.C.) 5: (1962)2 An W.R. (S.C.) 5: (1962)1 S.C.J. 713: A.I.R. 1961 S.C. 794, (ii) Tarapore & Co., Madras v. Tractors Export, Moscow, (1970)1 M.L.J. (S.C.) 1: (1970)1 An. The learned senior counsel who raised the preliminary objection placed reliance on the rulings on: (i) Jethanand & Sons v. State of U.P., (1962)2 M.L.J. (S.C.) 5: (1962)2 An W.R. (S.C.) 5: (1962)1 S.C.J. 713: A.I.R. 1961 S.C. 794, (ii) Tarapore & Co., Madras v. Tractors Export, Moscow, (1970)1 M.L.J. (S.C.) 1: (1970)1 An. W.R. (S.C.) 1: (1970)2 S.C.J. 514: A.I.R. 1970 S.C. 1168 and (iii) Prakash Chand v. Hindustan Steel, A.I.R. 1971 S.C. 2319 and we have no hesitation to say that they will not be of any use for deciding the issue under consideration as in those cases, the Court was considering the question how the words occurring in Article 133 of Constitution of India viz., ‘judgment’, ‘decree’ or ‘Final Order’ in a Civil proceedings in High Court, should be understood. 15. From the various rulings referred supra, the legal position can be summed up as under: (a) The word ‘judgment’ should receive a much wider and more liberal interpretation while considering Clause 15 of the Letters Patent, than the word ‘judgment’ used in the Code of Civil Procedure. (b) The word ‘judgment’ found in Clause 15 of Letters Patent has to be understood as ‘a judgment is that adjudication, whatever its form may be and whatever may be the nature of application in which it is made, if its effect be to put an end to the suit or proceeding so far as the Court before which such suit or proceeding is pending is concerned’. (c) The interlocutory orders in the nature enumerated in paragraph 120 of the judgment reported in Shah Babulal Khimji v. Jayaben D.Kania, A.I.R. 1981 S.C. 1786 may be treated as judgment. The Supreme Court has given only illustrations of interlocutory orders, which should mean it is not exhaustive. To find out whether an interlocutory order which does not find a place in the illustrations given by the Supreme Court in paragraph 120 of the judgment referred supra is a judgment or not, the test is whether there has been determination of any right or liability or whether it affects the merits of controversy between the parties in the suit itself, or if the order affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Thus, the impugned order of remand is a ‘judgment’ within the meaning of Clause 15 of the Letters Patent. 16. Thus, the impugned order of remand is a ‘judgment’ within the meaning of Clause 15 of the Letters Patent. 16. That apart, coming to the present case, it has to be noted, it is not as if that the learned single Judge remitted the matter without giving any finding and has simply called upon the trial Court to consider and dispose of the matter afresh. If one goes through the judgment of the learned Single Judge carefully, it could be seen that at least in two places, the learned Single Judge has given a finding, which certainly touches what is called the merits of controversy. In para No.18 of the judgment, while considering the testimonies of D.Ws.16 and 17, the learned single Judge has categorically stated that the evidence of D.Ws.16 and 17 are supporting the case of the 12th defendant both in respect of passing of consideration, delivery of possession, interest of the first defendant etc. Such a finding would certainly affect the interests of the plaintiff and the learned single Judge could have, after pointing out that the trial Court has rejected their evidence by a single sentence, directed the trial Court to examine it and give a considered finding as to the acceptability or otherwise of the testimonies of D.Ws.16 and 17. Again, in para No.22 of the judgment, the learned single Judge has rather held that the written statement of the first defendant would only mean that he has no objection for the suit being decreed in favour of the plaintiff in respect of the properties which he admits as joint family properties and not the entire ‘A’ schedule properties. Certainly, this finding goes against the case of the plaintiff. Hence, also on the ground that in the order of remand, the learned single Judge has considered the merits of controversy and rendered some findings and which also would go against the plaintiff, the Court is inclined to hold that an appeal is maintainable against the order of the learned single Judge. 17. As narrated earlier, in A.S. No.160 of 1974, filed by the appellant/ plaintiff, the trial Court has held that the plaintiff would be entitled to 8/28th share in entire ‘A’ schedule properties and in the properties in the ‘B’ schedule, other than items 3 to 6 and 20. Aggrieved by this, the first defendant filed A.S. No.49 of 1982. 17. As narrated earlier, in A.S. No.160 of 1974, filed by the appellant/ plaintiff, the trial Court has held that the plaintiff would be entitled to 8/28th share in entire ‘A’ schedule properties and in the properties in the ‘B’ schedule, other than items 3 to 6 and 20. Aggrieved by this, the first defendant filed A.S. No.49 of 1982. The 18th defendant viz., one of the legal representatives of the 12th defendant has filed A.S. No.288 of 1983. In the 2nd suit filed by the first defendant, i.e., O.S. No.260 of 1974, wherein the first defendant has sought for declaration and injunction, the suit is decreed only with reference to the properties settled in the name of the first defendant by the 3rd defendant, that is to say, items 3 to 6 and 20 in the ‘B’ schedule in the first suit. As against the said judgment and decree, Jayaraman viz., the plaintiff in O.S. No.160 of 1974 has filed the appeal in A.S. No.837 of 1989. Inasmuch as the plaintiff viz., Jayaraman failed to file any appeal as against the judgment and decree in O.S. No.160 of 1974, so far the same is against him, that is to say, with reference to items.3 to 6 and 20, the judgment in O.S. No.160 of 1994 would operate as res judicata and that being so, A.S. No.837 of 1989, where Jayaraman questions the correctness of the judgment only with reference to items 3 to 6 and 20 has to be dismissed. 18. Similarly, inasmuch as the first defendant Marappa Reddiar has failed to file any appeal against the judgment and decree in A.S. No.837 of 1989, wherein the Court has ruled that the properties in the name of Marappa Reddiar are in the nature of ancestral properties, the same would operate as res judicata. Consequently, A.S. No.49 of 1982 has to be dismissed. 19. Consequently, A.S. No.49 of 1982 has to be dismissed. 19. Or in other words, when ‘A’ files a suit, claiming certain rights in two properties viz., “P-1” and “P-2” and the rival claimant “M” files a suit over the same properties against “A” and the two suits are disposed of by c Common judgment, wherein it is declared that ‘A’ is entitled for “P-1” item but not “P-2” so also ‘M’ is entitled for “P-2” item but not “P-1”, then ‘A’ has to file two appeals ie., appeal namely, so far that part of the claim (i.e.) item P-2, which went against him in his suit and in the suit filed by ‘M’. Equally, ‘M’ has also to file two appeals. Thus, if ‘A’ has failed to file an appeal with reference to the disallowed portion (item P-2) in his suit and files an appeal only with reference to the other suit filed by ‘M’, then the judgment in his suit would operate as res judicata and the appeal filed by him as against the decree and judgment in ‘M’s suit, has to be dismissed. 20. At this juncture, it will be useful to refer to the Ruling reported in Ram Prakash v. Charan Kaur, (1997)9 S.C.C. 543 . In that case, two suits were filed by rival parties, claiming damages against each other. Those suits were tried together. For convenience, we take it as ‘A’ and ‘B’. A’s suit was dismissed and ‘A’ did not file any appeal. But ‘B’ filed an appeal and the appellate Court decreed the suit. Second appeal was preferred by ‘A’ against the decree for damages granted against him by the lower appellate Court. It was held by the Supreme Court that the second appealis barred by res judicata. 21. Once this Court comes to such conclusion, then it automatically follows, A.S. No.49 of 1982 as well as A.S. No.837 of 1989 have to be dismissed, leaving alone the appeal in A.S. No.288 of 1983. 22. Now let us proceed to consider whether the order of remand passed by the learned single Judge is sustainable. The learned single Judge, to put it briefly, has pointed out certain reasons for remanding the matter. 22. Now let us proceed to consider whether the order of remand passed by the learned single Judge is sustainable. The learned single Judge, to put it briefly, has pointed out certain reasons for remanding the matter. They are: (a) The evidence of D.W.15 has not been properly appreciated; (b) The evidence of D.Ws.16 and 17 have been rejected by the trial Court by a single sentence, stating that he is not inclined to accept their evidence; (c) Benami Transaction Prohibition Act is only prospective in operation and not retrospective. (d) Finally, the written statement of the first defendant has not been properly understood by the trial Judge. From the above, it could be seen that the learned single Judge remanded the matter on the ground that the evidence of D.Ws.15, 16 and 17 have not been properly appreciated and that the written statement of the first defendant has not been properly understood. The second reasoning is that the lower Court proceeded on the basis that Benami Transaction Prohibition Act is retrospective in nature. 23. The question is whether for these reasons, High Court can remand the matter? As could be seen from the records, the suit was filed by the plaintiff way back in the year 1974. All the required materials were very much available before the learned single Judge and that being so, the learned single Judge should have himself decided the appeal one way or other. 24. The observation of the learned single Judge in para No.21 of the judgment, viz., there is no evidence regarding the date of death of the father of the first defendant, is not correct. In fact, D.W.6 has categorically deposed that the father of the first defendant died during 1962. Or in other words, all the materials required for the purpose of deciding various issues were very much available before the learned single Judge. The appellate Court on the first appeal has got every jurisdiction to go into the factual aspects and give factual findings. There is no justification for the learned single Judge to remand the matter. 25. The Supreme Court had an occasion to consider about the powers of remand of the High Court in Ashwinkumar K. Patel v. Upendra J. Patel, A.I.R. 1999 S.C. 1125. There is no justification for the learned single Judge to remand the matter. 25. The Supreme Court had an occasion to consider about the powers of remand of the High Court in Ashwinkumar K. Patel v. Upendra J. Patel, A.I.R. 1999 S.C. 1125. In para No.7 of the judgement, the Court observed thus: "In our view, the High Court should not ordinarily remand a case under O.41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified." In P.Purushottam Reddy v. M/s.Pratap Steels Limited, A.I.R. 2002 S.C. 771, the Supreme Court pointed out that the inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code and only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23-A. In para No.10, the Supreme Court has observed thus: "The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in O.41 of the Code of Civil Procedure by C.P.C. Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in O.41 of C.P.C. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Sec.151 of the C.P.C. to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of O.41 of the C.P.C. In cases where additional evidence is required to be taken in the event at any one of the clauses of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23-A has been inserted in O.41 which provides for a remand by an appellate Court hearing an appeal against a decree if, (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra v. Sushila, A.I.R. 1965 S.C. 365 at 399, it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors the Rules 23 and 23-A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by O.20, Rule 3 or O.11, Rule 31 of the C.P.C. and hence it is no judgment in the eye of law it may set aside the same and send the matter back to re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided." [Italics supplied] 26. In the result, (a) L.P.A. No.67 of 1996 is allowed and A.S. No.49 of 1982 stands dismissed. (b) L.P.A. No.66 of 1996 is allowed and A.S. No.837 of 1989 stands dismissed. (c) L.P.A. No.65 of 1996 is allowed. The order of remand is set aside. A.S. No.288 of 1983 shall be disposed of on merits by the learned single Judge. (d) C.M.Ps. 8340 to 8342 of 2002 are closed. L.P.A. No.67 of 1996 allowed L.P.A.No. 66 of 1996 allowed L.P.A.No. 65 of 1996 allowed