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2011 DIGILAW 2272 (MAD)

Jamila Beevi v. K. Mariammal

2011-04-20

K.B.K.VASUKI

body2011
JUDGMENT ( 1. ) THE appeal is filed by the plaintiff against the judgment and decree made in A.S.No.113 of 2002, on the file of the Principal Sub-Court, Dindigul, dated 18.09.2003 thereby setting aside the judgment and decree, dated 28.08.2001 of the trial court in O.S.No.133 of 2009, on the file of the District Munsif, Nilakkottai and remanding the suit for fresh disposal to the court. ( 2. ) THE parties are for the purpose of convenience, named as per their rank in the suit. The plaintiff filed the suit in O.S.No.133 of 1996 for declaring the plaintiff's title over the suit property and for restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit properties consisting of two items(1) S.No.48/5-42 cents and (2)S.No.52/3-1.22 acres, punja lands in Kanmaipatti village, Nilakkottai District. According to the plaintiff, the property originally belonged to the plaintiff's father having purchased the same under Ex.A1-Registered sale deed from one Chinnamuthu Rowther and since the date of purchase, the plaintiff's father had been in exclusive possession and enjoyment of the property and after his death in 1930, the plaintiff and his brothers inherited the same and the suit properties are in the partition under Ex.A2, partition deed, dated 22.05.1969 allotted to the share of the plaintiff and the plaintiff since that date has been in exclusive possession by paying kists and she has also by such long, continuous and open possession and enjoyment of the same prescribed title by adverse possession and her right, title and interest is sought to be interfered with by the defendants without any right or interest to do so. The first defendant died during the pendency of the suit. The suit is seriously contested by the second defendant, who is none else than the daughter of the first defendant. According to the second defendant, the suit property originally belonged to one Paramasamy, from whom the father of the deceased first defendant and the grand-father of the second defendant purchased the same on 22.07.1948 under Ex.B1-Registered sale deed and since the date of such purchase, the same has been in possession and enjoyment of the defendant's family members. According to the second defendant, the suit property originally belonged to one Paramasamy, from whom the father of the deceased first defendant and the grand-father of the second defendant purchased the same on 22.07.1948 under Ex.B1-Registered sale deed and since the date of such purchase, the same has been in possession and enjoyment of the defendant's family members. The further case of the second defendant is that though the correct survey number of the suit item is S.No.52/3, it is wrongly mentioned as S.No.51/1 in Ex.B1-sale deed, but the survey number is correctly mentioned in Ex.B3-Patta and other subsequent documents such as chitta, adangal and kist receipts and other mortgage deeds relating to the suit property and the plaintiff has been by taking advantage of the error crept in mentioning the survey number in Ex.B1-sale deed, claiming wrongful right over the suit property. The parties have in support of their respective claim examined the plaintiff and the defendant as P.W.1 and D.W.1 and produced Ex.A1 to Ex.A13 and Ex.B1 to Ex.B19 documents. ( 3. ) THE trial court has on the basis of the evidence let in having found that the defendants have no objection for declaring the plaintiff's right, title and interest in respect of Item No.1 in S.No.48/5 and the actual dispute is only with regard to S.No.52/3 and the same is under Ex.A1-Sale deed purchased by the plaintiff's father and the failure to mention the four boundaries in Ex.A1 will in no way affect the claim of the plaintiff in respect of the suit property and the defendant's predecessor-in-title and thereafter the second defendant is under Ex.B1-sale deed entitled to only the lands in S.No.52/1 and they have no claim over S.No.52/3, granted the suit reliefs in respect of S.No.52/3. ( 4. ) AGGRIEVED against the same, the second defendant preferred an appeal in A.S.No.113 of 2002. The appellate court on the basis of the available evidence arrived at the conclusion that S.No.52/3 is described in the suit schedule without four boundaries and the same is as per Ex.B2-partition deed, dated 22.05.1983 allotted to the plaintiff's share and the same is the subject-matter of Ex.A3 and Ex.A4-patta issued in the name of the plaintiff, Ex.A9-Chitta, Ex.A5 to Ex.A8-Kist receipts and the absence of four boundaries for the survey number will not render the claim made by the plaintiff under Ex.A1 to be negatived. It is further decided by the appellate Court that Ex.B1-sale deed dated 22.07.1948 in favour of the defendants grandfather is in respect of 1.16 acres, out of 5 acres and 6 cents in S.No.52/1 and other remaining documents such as patta, chitta, adangal, kist receipts, mortgage deeds, sale deeds in favour of third parties produced as Ex.B2 to Ex.B19 on the side of the defendants are only relating to the property purchased under Ex.B1, whereas, the survey number is wrongly mentioned as S.No.52/3 under Ex.B2 and as S.No.52/2 in patta and such inconsistency in the defendants side documents could be clarified only through due inspection and measurement of both the suit S.Nos.52/3 and 52/1 with reference to revenue records by Taluk Surveyor and only after such inspection and only after receiving the report and sketch from Taluk Surveyor after such inspection and after duly examining the revenue officials as witnesses, the total extent of land comprised in S.No.52 and the circumstances in which S.No.52 is subdivided as S.No.52/1,52/2, and 52/3 in favour of the predecessor-in-title and the current title holders of the suit properties can be ascertained and the declaratory relief cannot be granted in favour of the plaintiff in respect of S.No.52 without any particulars of boundaries in respect of the subject matter of Ex.A1-sale deed and even the title in favour of the defendants cannot be upheld without any evidence as to on what basis survey number is mentioned as S.No.52/3 in the defendants' documents-Ex.B1. The appellate court is of the further view that for the purpose of getting clarification of the aspects referred to above, it is the fit case to be remanded back to lower court for fresh disposal in terms of the clarifications sought for and directions issued by the lower appellate court and remanded the case accordingly. AGGRIEVED against the same, the plaintiff has preferred the present appeal before this Court. The learned counsel for the appellant has seriously contended that the lower appellate court has passed the order of remand contrary to the well-established legal position and by ignoring various decisions of this Court as to the circumstances under which the order of remand can be resorted to. The learned counsel for the appellant has seriously contended that the lower appellate court has passed the order of remand contrary to the well-established legal position and by ignoring various decisions of this Court as to the circumstances under which the order of remand can be resorted to. It is further argued by the learned counsel for the appellant that the lower appellate court has grossly erred in remanding the matter without setting aside the judgment and decree of the trial court in violation of the procedure laid down under Order 41 of Civil Procedure Code. It is also argued that the trial court ought to have on the basis of the available records decided the case on merits and ought not to have remanded the matter back on its own without any remand being sought for by either of the parties. It is further argued that in the event of the lower appellate court arriving at a conclusion that the documents available are not sufficient enough to decide the issue in hand without further proof in the shape of Advocate Commissioner or Surveyor report, plan and rough sketch, the lower appellate court being a fact finding authority and the appeal being the continuation of the suit ought to have retained the appeal on its file. It ought to have called for further finding from the trial court and ought to have on the basis of it decided the case in hand without remanding the same to the trial court. The learned counsel for the appellant has also cited various authorities as to how the order of remand passed by the trial court is unwarranted and is bad in law. The authorities cited are: 1. AIR 1999 Supreme Court 1125 (Ashwin Kumar K.Patel Vs. Upendra J.Patel); 2. AIR 2002 Supreme Court 771 (P.Purhshottam Reddy Vs. M/s.Pratab Steels Limited); 3. (2008) 8 Supreme Court cases 485 (Municipal Corporation, Hyderabad Vs. Sundar Singh); 4. 2005-3-L.W.366(DB) (S.Shanmugham Vs. S.Sundaram and 4 others); 5. AIR 2005 Madras 399 (Bhuvaneswari Vs. Saraswathi Ammal); 6. 2004(3) CTC 130 (Narayanan Vs. Kumaran and others); ( 5. ) 2007(3) CTC 383 (Arockiaprakash Vs. Rengasamy); ( 6. ) 2000(1) CTC 613 (M/s.Sekaran Real Estates Vs. Punjab National Bank); 1968 (2) MLJ 546 (Subramanian and another Vs. Kaliammal and others); ( 7. ) 2010(3) CTC 512 (Thangavelu Vs.Sampoornam and others); and ( 8. Saraswathi Ammal); 6. 2004(3) CTC 130 (Narayanan Vs. Kumaran and others); ( 5. ) 2007(3) CTC 383 (Arockiaprakash Vs. Rengasamy); ( 6. ) 2000(1) CTC 613 (M/s.Sekaran Real Estates Vs. Punjab National Bank); 1968 (2) MLJ 546 (Subramanian and another Vs. Kaliammal and others); ( 7. ) 2010(3) CTC 512 (Thangavelu Vs.Sampoornam and others); and ( 8. ) AIR 1969 A.P 216 (Purapabutchi Rama Rao Vs. Purapa Vimalakumari). 7. On the other hand, the learned counsel for the respondent has not only attempted to defend the order of remand, but has also questioned the maintainability of this C.M.A by relying upon the judgement reported in 2004(3) CTC 130 (Narayanan Vs. Kumaran and others). 8. Heard the rival submissions made on either side and perused the records. 9. Before going into the correctness of the order of remand on merits and on facts, the legal objection regarding the maintainability of C.M.A has to be considered. Our High Court has in the judgment reported in 2008(4) TLNJ 40 is following the judgement of 2004 (3) CTC 134 SC dismissed the C.M.A filed against the order of remand passed by the first appellate court as not maintainable on the ground that the impugned order of remand passed by the first appellate court after a full-fledged judgement by setting aside the judgement and decree of the trial court is not an order of remand simplicitor on particular aspect but is a detailed judgment on all aspects touching the main controversy in issue as such only any appeal will lie against the judgment and decree of the first appellate court and C.M.A is hence not maintainable and the same deserves to be dismissed with liberty given to the appellant to file an appeal against the judgment and decree passed by the lower appellate court. However, the perusal of the judgement in 2004(3) CTC 130 is in my opinion not laid down any law to the effect that C.M.A is not totally maintainable against a full-fledged judgment of the lower appellate Court with an additional order of remand. In the authority of the Apex Court cited before this Court, the C.M.A is filed against the order of remand and the C.M.A is challenged before the High Court and the High Court without framing any substantial questions of law has interfered with the judgement of the lower appellate court after a detailed appreciation of evidence on facts. In the authority of the Apex Court cited before this Court, the C.M.A is filed against the order of remand and the C.M.A is challenged before the High Court and the High Court without framing any substantial questions of law has interfered with the judgement of the lower appellate court after a detailed appreciation of evidence on facts. When the judgment of the High Court is challenged before the Supreme Court, one of the objections raised before the Supreme Court was that the High Court has exceeded its jurisdiction under Section 100 of Civil Procedure Code by reversing the well-considered judgment of the lower appellate Court on facts without framing any substantial questions of law for its due consideration. The Supreme Court has observed that the lower appellate court has passed a full-fledged judgment on facts and set aside the judgment and decree of the trial court and no question of law much less substantial question of law arose for entertaining the appeal before the High Court. It is further observed by Apex Court that the High Court should have heard the appeal under Order 43 Rule 1(u) of Civil Procedure Code only on the grounds enumerated under Section 100 of the Civil Procedure Code and the High Court has erred in going into minute details of facts and appreciated the evidence under Section 100 of Civil procedure Code wherein the parties are not permitted to agitate the questions of facts and the High Court ought to have confined itself to such facts, conclusion and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate Court and appeal ought to have been heard only on the grounds enumerated under Section 100 of Civil Procedure Code and not on question of facts as in the case of first appeal and is hence, set aside the judgment of the High Court and restored the judgement passed by the District Court, however, by deleting the directions given by the District Court in regard to the order of remand and retained and sustained the judgement of the District Court in toto. The Apex Court has in the judgment cited above has after referring to earlier judgments of our High Court in (a)AIR 1926 Madras 475 (Seshammal and others Vs. The Apex Court has in the judgment cited above has after referring to earlier judgments of our High Court in (a)AIR 1926 Madras 475 (Seshammal and others Vs. Kuppanaiyyangar and anothr); and (b) AIR 1933 Madras 360 (Ambukutti Vaidier Vs. Kannoth Koottambath Kelan) held that CMA stand on the same footing as second appeals with regard to their being arguable only question of law. Though in the same judgment Apex Court has referred to the judgment of our High Court in AIR 1969 Mad. 148 (Kaluvaroya Pillai and others Vs. Ganesa Pandithan and others), wherein it is held that when there has been a substitution of the judgment and decree of the appellate Court to that of the trial Court thereby the lower appellate Court set aside the trial Court judgment in full and remanded the totality of the suit, the only remedy available is to file Second Appeal and not to file an appeal under Order 43 Rule 1(u) C.P.C. The Apex Court has in the judgment cited above did not decide against the maintainability of similar C.M.A but has only discussed and observed that the scope of enquiry in the C.M.A is very limited on the grounds enumerated under Section 100 of Civil Procedure Code. 10. In this appeal filed under Order 41 Rule 1(u) of C.P.C., the substantial question of law arises is; "Whether the order of remand made by the lower appellate Court is against the provisions of Order 41 Rule 27 of C.P.C. and against the settled position of law regarding the scope of order of remand?" 11. As far as the validity and correctness of the order of remand is concerned, the main attack is that the order of remand is passed without rendering any specific finding that the judgment of the trial court is erroneous and without setting aside the lower court judgment and is hence bad in law and is legally unsustainable. The learned counsel for the appellant has also in support of such proposition of law cited the authorities of Apex Court and our High Court reported in (1) AIR 2002 Supreme Court 771 (P.Purushottam Reddy and another Vs. M/s.Pratab Steels Limited); (2)(2008) 8 SCC 485(Municipal Corporation, Hyderabad Vs. Sunder Singh); (3) 2000(1) CTC 613 (Sekaran Real Estates Vs. Punjab National Bank); and (4) 2010 (3)CTC 512 (Thangavelu Vs. Sampoornam and others). M/s.Pratab Steels Limited); (2)(2008) 8 SCC 485(Municipal Corporation, Hyderabad Vs. Sunder Singh); (3) 2000(1) CTC 613 (Sekaran Real Estates Vs. Punjab National Bank); and (4) 2010 (3)CTC 512 (Thangavelu Vs. Sampoornam and others). In all these cases, the Supreme Court and our High Court has clearly laid down that unless and otherwise, the appellate Court arrived at a conclusion and rendered a specific finding on the basis of the available records that the trial court has passed an erroneous judgment and the order of remand cannot be legally sustained and one such finding setting aside the judgment of the trial court is a condition precedent for ordering remand for de-nova trial. As rightly argued by the learned counsel for the appellant in this case, the lower appellate court has nowhere discussed the findings rendered by the trial court on the issues in controversy on the basis of the available records and has rendered any finding referring to the sufficiency or otherwise of the materials to support such finding or as to whether the finding so rendered is factually or legally sustainable or not. Without such findings, the lower appellate court has simply set aside the judgment and decree of the trial court for the purpose of remanding the matter and such course adopted by the lower appellate court in view of the ratio laid down in the judgments cited above is totally erroneous and cannot be factually and legally sustainable. ( 9. ) NEXT aspect to be considered is the grounds on which the lower appellate court has remanded the matter back for fresh trial which are as follows: (a) Ex.A1-sale deed does not contain the description of the property with specific boundaries. (b) There is no oral and documentary evidence adduced on both sides to show the total extent of land comprised in S.No.52 and the exact extent covered under three sub-division Nos.S.No.52/1,52/2 and 52/3. The revenue records are not produced to show the title holders of S.Nos.52/1,52/2 and 52/3. (c) As per Ex.B1-sale deed, the property purchased by the defendants is in S.No.52/1 and whereas, it is not shown as to under what circumstances the revenue records (patta) was issued for S.No.52/3. The revenue records are not produced to show the title holders of S.Nos.52/1,52/2 and 52/3. (c) As per Ex.B1-sale deed, the property purchased by the defendants is in S.No.52/1 and whereas, it is not shown as to under what circumstances the revenue records (patta) was issued for S.No.52/3. (d) Unless and until the property was measured with reference to the revenue records with the help of Taluk Surveyor, the question of title cannot be gone into and title of either the plaintiff or the defendant cannot be decided. ( 10. ) AS rightly pointed out by the learned counsel for the appellant, the plaintiff has in support of her contention that she is the owner of S.No.52/3 produced the title deeds and revenue records, whereas except Ex.B2-patta, other documents produced on the side of the defendant do admittedly relate to S.No.52/1. Though serious dispute is raised with regard to the identity of the property before the trial court, neither of the parties sought for appointment of an Advocate Commissioner and the same is discussed in the light of the available documents and decided by the trial court in favour of the plaintiff. The defendant as the appellant before the lower appellate court has not thought fit to seek appointment of Advocate Commissioner to measure the property with reference to the revenue records with the help of Taluk Surveyor and to produce any additional documents. The judgement of the trial court is seriously questioned by the defendant before the lower appellate court only on the ground that the trial court failed to consider the documents produced on the side of the defendant and has failed to decide the description of the property on the basis of the boundaries given in the documents filed on her side and by overlooking the oral evidence adduced on the side of the defendant and the failure of the plaintiff to produce any satisfactory evidence to prove the possession of the plaintiff. However, the lower appellate court on its own raised few issues which are not raised by either of the parties and suo-motu remanded the case for the purpose of deciding the same by taking measurement of the properties to identify and to locate the suit survey number with its sub-division and to decide the correctness of extent covered in different sub-divisions of suit survey numbers. As rightly pointed out by the learned counsel for the appellant, the lower appellate court ought to have on the basis of the available evidence proceeded to decide the correctness or otherwise of the findings rendered by the trial court and ought to have either confirmed, varied, modified or reversed the findings for reasons recorded in writing and ought not to have remanded the matter back to the trial court when the same is being not sought for on either side of the parties particularly the appellant who is the aggrieved party before the same. The course so adopted by the lower appellate court amounts to nothing but allowing the party to fill up the lacunae which is found wanton in records and the same has only helped the defendant who failed to prove his claim. As rightly argued by the learned counsel for the appellant herein, the lower appellate court would have retained the appeal on its file and would have called for a finding from trial court upon any material aspect if any found lacking in the records available and after receiving one such finding or any fresh material as additional evidence decided the claim of the parties. The order of remand passed by the lower appellate court without adopting such course is, in my considered view and in the light of the law laid down in the judgments cited above, improper. The lower appellate court while remanding the matter failed to see that the power of remand can be exercised only on exceptional and extraordinary circumstances and not as a matter of routine. The lower appellate court has failed to see that the same is empowered to adopt all the courses as provided under order 41 Rules 24 to 29 of the Code. When the evidence on record is sufficient enough to determine the case finally or when the trial Court or the Court from whose decree the appeal is preferred has omitted to frame and decide any issue or omitted to determine any question of fact, the lower appellate Court may frame additional issues and may also allow additional documents to be produced or witnesses to be examined. Thus, when the lower appellate Court has wider power under statute to decide the issue in the appeal finally, the order of remand passed by the lower appellate Court amounts to failure or improbable exercise of jurisdiction enjoined upon the same. ( 11. ) THE order of remand is also hit by the guidelines laid down by our Supreme Court regarding the circumstances under which the discretionary power of remand under Order 41 Rule 23 can be exercised. THE Supreme Court and the Division Bench of our High Court in the judgments reported in (a) AIR 1999 Supreme Court 1125 (Ashwin Kumar K.Patel Vs. Upendra J.Patel); (b) AIR 2002 Supreme Court 771 (P.Purushottam Reddy Vs. M/s.Pratab Steels Limited); (c) (2008) 8 Supreme Court cases 485 (Municipal Corporation, Hyderabad Vs. Sundar Singh); (d) AIR 2005 Madras 399 (Bhuvaneswari Vs. Saraswathi Ammal); and (e) 2005-3-L.W.366 (DB)(S.Shanmugham Vs. S.Sundaram and 4 others) have laid down that and the scope of remand in terms of Order 41 Rule 23 of the Code is extremely limited and the Court should be loathe to exercise its power and the order of remand should not be passed routinely and the order of remand leads to unnecessary delay and cause prejudice to the parties and unwarranted order of remand gives the litigation an undeserved lease of life and hence must be avoided. THE Division Bench of our High Court has also in the judgment above cited is of the view that when the provisions under Order 41 Rules 23 to 29 CPC are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and try the appeal, there is no necessity to remand the matter back to the trial Court and the lower appellate Court itself can try the matter after taking further evidence and if it is possible for the appellate Court to evaluate the evidence made available on record and to come to its own conclusion one way or the other, then it is not open to the lower appellate Court to come to the aid of the parties filling up a lacuna which is found wanting in the records. THE appellate Court should not exercise the power of remand to give an undue advantage to the aggrieved party to fill in gaps or lacuna in the evidence on record and it would in effect amount to circumvent the provisions of Rule 27, Order 41 and cross cutting the specific provisions of the Code. ( 12. ) THUS the legal principles laid down by the Apex Court and the Division Bench of our High Court makes it clear that the remand cannot be made on the ground that the trial Court has not properly assessed evidence or when defect in the proceeding has been due to negligence or default of the party to the proceedings who will benefit by such remand and the tendency to remand the case in toto after setting aside the judgment of the trial Court to direct a de-novo trial is against the tenor of law. THUS the order of remand appealed against does not satisfy the legal requirement and is legally and factually unsustainable and is hence liable to be set aside. In the result, the appeal is allowed and the judgment and decree of the lower appellate court, dated 18.09.2003 made in A.S.No.113 of 2002 is set aside and the appeal is remanded back to the lower appellate court for fresh disposal on merits and in the event of the lower appellate court finds it necessary to call for further evidence, it may do so, in accordance with law, by giving due opportunity to the parties to adduce further evidence before the appellate court and to dispose of the matter on merits and on the basis of the available evidence. Considering the period during which the litigation is commenced, the lower appellate court is directed to dispose of the appeal, as expeditiously as possible, not later than four months from the date of receipt of the copy of this order. Consequently connected Miscellaneous Petitions are closed. No costs.