Heard the learned counsel on either side.
2.The plaintiff in the suit has filed this Civil Miscellaneous Appeal challenging the order of remand made by the Lower Appellate Court. The appellant herein had filed O.S.No.421 of 2007, on the file of the IInd Additional District Munsif Court, Kuzhithurai, Kanyakumari District, seeking the relief of declaration, permanent injunction and for demarcation of plaint ?B? Schedule property. The Trial Court decreed the suit as prayed for on 25.08.2012. Aggrieved by the same, the defendants 1 and 2 preferred A.S.No.62 of 2012, before the Sub Court, Kuzhithurai.
3.The Lower Appellate Court noted that the plaintiff traced her title by virtue of sale deed Ex.A3 dated 21.04.1993. The sale was effected in favour of the plaintiff by one Royappan, who is none other than the father of Ravi, the second defendant in the suit. It is contended by the plaintiff that Ponnan Nadar had sold the suit property in favour of Royappan on 07.07.1969. Ponnannadar, the third defendant had sold the said B Schedule property in favour of the said Royappan on 07.07.1969 vide Ex.A1. According to the plaintiff, the property is comprised in R.S.No.70/13, said to correlate to old survey No.4092 B, mentioned as plot No.6, in the decree in O.S.No.357 of 1962, dated 09.09.1963. The First Appellate Court rightly noted that the said decree was not produced before the Trial Court. When the entire issue rests on the correspondence or correlation between what is mentioned as plot No.6 in the said decree and what was ultimately purchased by the plaintiff, it is absolutely necessary that the suit property is identified with reference to the said decree in O.S.No.357 of 1962. Since this exercise was not undertaken, the First Appellate Court was of the view that it is necessary to appoint a fresh Advocate Commissioner and identify the property. This approach of the first Appellate Court cannot be faulted. The question is whether the order of remand should be made therefor.
4.I am of the view that the very same object can be achieved by calling upon by the Trial Court to submit its findings with reference to the said issue. In other words, the First Appeal can be kept pending at the First Appellate Court and limited remand can be made for the purpose of inviting findings of the Trial Court on this aspect. Therefore, to this extent, I am inclined to interfere with the order passed by the First Appellate Court.
5.Order 41 Rule 25 reads us follows:-
?Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from? Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [412][within such time as may be fixed by the Appellate Court or extended by it from time to time.?
6.The First Appellate Court can invoke this power under Order 41 Rule 25 of Civil Procedure Code instead of setting aside the judgment and decree of the Trial Court and remanding the matter. The impugned order is therefore set aside. The First Appellate Court is directed to invoke its power under Order 41 Rule 25 of Civil Procedure Code. The First Appellate Court shall frame the issue itself and refer the same to the Trial Court for returning the evidence to the Lower Appellate Court together with findings therein and reasons therefor. The First Appellate Court shall frame issue within two weeks from the date of receipt of a copy of this order. The Trial Court shall take evidence and submit its findings on the issue framed by the First Appellate Court within four months and in any event on or before March 31.03.2018. The Trial Court shall appoint an Advocate Commissioner for identifying the property with reference to the decree in O.S.No.421 of 2001 for rendering its findings. It is needless to say that the parties will have the fullest opportunity to place their case before the Trial Court.
7.This Civil Miscellaneous Appeal is allowed as indicated above. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Sub-Court, Kuzhithurai, Kanyakumari District
2.The IInd Additional District Munsif Court, Kuzhithurai, Kanyakumari District
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
.