This Civil Miscellaneous Appeal is directed against the Judgment and order of remand dated 28.03.2002 of the learned Principal District Judge, Tiruvannamalai made in A.S.No.9 of 2000.
2. Patturose Gounder, the deceased first appellant and one Thangavel Gounder had filed the original suit O.S.No.425 of 1996 on the file of the District Munsif cum Judicial Magistrate, Chengam for a declaration of their title to the suit property and for permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit property. The suit was filed contending that the suit property originally belonged Malaiyappa Gramani; that Gopal Gounder, the father of the deceased first appellant purchased the same from the said Malaiyappa Gramani on 06.03.1926 for a sum of Rs.200/-; that from the date of purchase, Gopal Gounder was in possession and enjoyment of the suit property and that he had also obtained patta in his name and was paying kist to the Government for the suit property. It was the further contention made in the plaint that Patturose Gounder (deceased first appellant/first plaintiff), Thangavel Gounder (deceased second plaintiff) and Narayana Gounder were the sons of the above said Gopal Gounder; that after the death of Gopal Gounder, all his three sons were enjoying the suit property jointly; that Narayana Gounder died issueless whereupon Patturose Gounder and Thangavel Gounder (deceased first and second plaintiffs) became entitled to the entire suit property; that since Thangavel Gounder, the second plaintiff, died during the pendency of the suit without any issue, the deceased first plaintiff Patturose Gounder, being the sole legal heir of Thangavel Gounder, became entitled to the entire suit property and that the defendants 1 to 5 who had no manner of right or title in respect of the suit property tried to trespass into the property pursuant to which the deceased first and second appellants/first and second plaintiffs were constrained to file the above suit for the reliefs indicated supra.
3.The original suit was resisted by the defendants by filing a written statement containing the following averments:-
It is true that the suit property originally belonged to Malaiyappa Gramani and the same was purchased by the deceased first plaintiff's father Gopal Gounder. The said Gopal Gounder thereafter created a mortgage in respect of the suit property in favour of Thanipady Co-operative Society. It is also false to allege that Gopal Gounder had three sons and the deceased Plaintiffs 1 and 2 were two out of the three sons of Gopal Gounder. On the other hand, the said Gopal Gounder had got only two sons and they were none others than the deceased plaintiffs 1 and 2. The suit property mortgaged in favour of Thanipady Co-operative Society by Gopal Gounder was not redeemed and hence the same was brought to sale by public auction for the recovery of the mortgage debt. One Mottaiya Mudali took it in the auction on 14.01.1937 and thereafter sold it to one Narayana Mudali under a sale deed dated 08.09.1940. From the said Narayana Mudali, Narayana Gounder purchased half of the suit property under a sale deed dated 26.02.1944. The remaining half share in the suit property was purchased by Narayana Gounder benami in the name of Perumal Gounder at the first instance and later on, got that half share also conveyed to him. Thus the said Narayana Gounder became the absolute owner of the entire suit property. By a Will dated 14.09.1981, the said Narayana Gounder bequeathed the same in favour of Ruthrakumaran, Palani, Mohan (Defendants 3 to 5) and the said defendants being the legatees under the will are in possession and enjoyment of the suit property.
4. Based on the above said pleadings, the defendants prayed for dismissal of the suit with costs.
5. The trial Court framed as many as 14 issues and tried the suit. P.W.1 and P.W.2 were examined and Exs.A1 to A24 were marked on the side of the plaintiffs, whereas D.W.1 was examined as the sole witness and Exs.B1 to B129 were marked on the side of the defendants. At the conclusion of trial, upon considering the evidence in the light of the arguments advanced on either side, the trial Judge (learned District Munsif cum Judicial Magistrate, Chengam) dismissed the suit on merits by its Judgment and decree dated 28.09.1999. As against the said Judgment and decree of the trial court, an appeal in A.S.No.9 of 2000 was preferred on the file of the learned Principal District Judge, Tiruvannamalai.
6. During the pendency of the suit, Thangavel Gounder (the second plaintiff) died and Patturose Gounder, the first plaintiff was recorded as his sole legal representative. Therefore the above said Appeal A.S.No.9 of 2000 was filed by Patturose Gounder, the first plaintiff alone on the file of the Lower Appellate Court. During the pendency of the first appeal before the Lower Appellate Court, the fourth defendant by name Palani passed away and the legal representatives of the deceased fourth defendant were impleaded as respondent Nos. 6 to 8 in the said appeal before the Lower Appellate Court. 7.When the Appeal A.S.No.9 of 2000 was thus pending on the file of the Lower Appellate Court, the respondents therein filed an Interlocutory Application I.A.No.98 of 2000 under Order 47 Rule 27 C.P.C. for reception of seven documents as additional documentary evidence. The Lower Appellate Court by a common Judgment and order dated 29.01.2000 allowed the above said interlocutory application for reception of additional documentary evidence. The learned Principal Sessions Judge however made a mistake by reading the said documents into evidence and referring them as document Nos. 1 to 7 produced in Interlocutory Application, without following the procedure for recording additional evidence and allowed the appeal reversing the Judgment and Decree of the trial Court and granting the reliefs of declaration and injunction as prayed for.
8. As against the said Judgment of the lower Appellate Court dated 21.09.2000, the respondents herein preferred a second appeal (S.A.No.10 of 2001) on the file of this Court. A learned Single Judge of this Court (Justice A.Ramamoorthy) allowed the second appeal (S.A.No.10 of 2001) by his judgment dated 29.06.2001, set aside the Judgment and Decree of the Lower Appellate Court dated 21.09.2000 and remitted A.S.No.9 of 2000 back to the Lower Appellate Court for fresh disposal in accordance with law. A direction had also been issued to the Lower Appellate Court to send the newly marked documents to the trial Court for a finding relating to the said documents to be given after giving opportunity to both parties to adduce evidence and to dispose of the appeal after receiving such finding from the trial Court within a period of one month from the date of receipt of such finding from the trial Court.
The operative portion of the Judgment of this Court dated 29.06.2001 made in S.A.No.10 of 2001 is extracted hereunder for the purpose of convenient reference and proper appreciation:
"...13. For the reasons stated above, the second appeal is allowed and the Judgment and decree of the Lower Appellate Court are set aside and the appeal is remitted back to the Lower Appellate Court for fresh disposal in accordance with law. The Lower Appellate Court is directed to send the newly marked documents (Exs.R1 to R7) to the trial Court and both parties are given opportunity to adduce evidence and the trial Court should be directed to give a finding relating to Exs.R1 to R7 and thereafter, the Lower Appellate Court is directed to dispose of the appeal in a period of one month after receiving finding from the trial Court. No costs. Consequently, CMP No.172 of 2001 is closed."
9. After remand, as per the directions issued by the High Court, the Lower Appellate Court had sent the documents produced as additional documentary evidence in the appeal to the trial Court for the purpose of recording evidence in proof of the same and for submitting a finding in that regard as per the direction of the High Court. The trial Court on receipt of the records from the Lower Appellate Court marked those seven documents as Exs.B130 to B136 through D.W.1 who was recalled for that purpose. The learned trial Judge, after considering the said additional evidence recorded as per the direction of the Appellate Court, submitted a finding to the Lower Appellate Court to the effect that the additional documents marked as Exs.B130 to B136 would establish that the suit property was in possession and enjoyment of the respondents/defendants and that the suit property belonged to them. On receipt of the above said finding along with the records, the learned Principal District Judge, Tiruvannamalai (the Lower Appellate Judge) heard the appeal A.S.No.9 of 2000 and after hearing, allowed the same setting side the Judgment and decree of the trial Court and remanded the suit back to the trial Court for fresh disposal, observing that the parties would be at liberty to adduce further oral and documentary evidence if necessary. The said Judgment and order of remand was passed on 28.03.2002.
10.Aggrieved by the said Judgment and order of remand of the lower Appellate Court, the present civil miscellaneous appeal was preferred by Patturose Gounder (the first defendant) figuring as the sole appellant. Since he died during the pendency of the civil miscellaneous appeal, the appellants 2 to 5 were brought on record as his legal representatives by virtue of an order dated 12.09.2006 made in C.M.P.No.9653 of 2006.
11The point that arises for consideration in this appeal is as follows:-
" Whether the order of remand made by the Lower Appellate Court is sustainable? whether the said order is in consonance with the direction of this Court issued in S.A.No.10 of 2001? whether the same is legally sustainable.?"
12.Mr.T.R.Rajaraman learned senior counsel for the appellants, advancing the arguments on behalf of the appellants, submitted that the Judgment and order of remand of the Lower Appellate Court are not sustainable in law; that the Lower Appellate Court misunderstood and misconstrued the direction issued by this Court in S.A.No.10 of 2001; that the order of remand made by the Lower Appellate Court would not be sustained either under Rule 23 or Rule 23(A) of Order 41 C.P.C.; that the Lower Appellate Court completely ignored the procedure prescribed under Order 41 Rule 27 to Rule 29 in taking additional evidence either by the Lower Appellate Court or by the trial Court and that the very procedure adopted by the Lower Appellate Court vitiated the order of remand. The learned senior counsel for the appellants contended further that apart from there being defects in the procedure adopted by the Lower Appellate Court in simply sending the documents to the trial Court for recording additional evidence and giving a finding without framing the question with regard to which the finding had to be submitted, the Lower Appellate Court also committed a grave error by remanding the suit to the trial Court for fresh disposal on the sole ground that the Lower Appellate Court was not in agreement with the finding submitted by the trial Court; that the Lower Appellate Court should have re-assessed the evidence recorded originally and recorded as additional evidence, both oral and documentary, and disposed of the appeal one way or the other based on its own finding without expecting the trial Court to give the finding which the Lower Appellate Court wanted; that even in the present remand order which is challenged in this civil miscellaneous appeal, the Lower Appellate Court had not indicated what were the issues regarding which the Lower Appellate Court concurred with the finding of the trial Court and what were the issues to be decided afresh and that hence viewed from any angle, the order of remand passed by the Lower Appellate Court should be set aside as the one made not in accordance with law.
13.The learned counsel for the respondents fairly conceded that he could not support the reasons assigned by the Lower Appellate Court for remanding the case back to the trial Court for fresh disposal, without attempting to dispose of the matter on merits based on the available materials on record. The learned counsel appearing for the respondents on the other hand would submit that in case this Court is inclined to interfere with the order of remand, the Lower Appellate Court may be directed to dispose of the appeal on merits within a time to be fixed by this Court.
14.This Court gave its anxious consideration to the submissions made on either side. The materials available on record were also perused.
15. The order of the Lower Appellate Court remanding the suit after setting aside the decree of the trial Court for fresh disposal is the subject matter of challenge in this civil miscellaneous appeal. The order has been attacked on two grounds:-
i)the order of remand is not in consonance with the provisions contained either in Rule 23 or Rule 23(A) of Order 41 C.P.C.
and
ii)the said order has been passed without properly understanding the scope of the Judgment by this Court made in S.A.No.10 of 2001 remanding the first appeal (A.S No.9 of 2000) back to the Lower Appellate Court for fresh disposal according to law.
16. The suit was originally decided against the plaintiffs by the trial Court and the same was dismissed with cost by its Judgment dated 28.09.1999. On appeal to the Lower Appellate Court in A.S.No.9 of 2000, the Lower Appellate Court allowed the appeal reversing the Judgment of the trial Court and decreed the suit in favour of the plaintiffs as prayed for. In fact, the said Judgment of the Lower Appellate Court was pronounced after taking into consideration 7 documents produced as additional evidence on behalf of the defendants before the Lower Appellate Court. However, on a further appeal to the High Court in S.A.No.10 of 2001, this Court held that the Lower Appellate Court committed an error in reading the documents produced in the appeal into evidence without following the procedure prescribed under Rule 27 of Order 41 C.P.C. for recording additional evidence in the appellate stage. On the said ground alone, the judgment of the Lower Appellate Court dated 28.03.2002 was set aside and the first appeal (A.S.9 of 2000) was remitted back to the Lower Appellate Court for fresh disposal according to law with a direction to record additional evidence. The direction issued by this Court is found in the last paragraph of the judgment by this Court dated 29.06.2001 made in S.A.No.10 of 2001 which reads as follows:-
"...13. For the reasons stated above, the second appeal is allowed and the Judgment and decree of the Lower Appellate Court are set aside and the appeal is remitted back to the Lower Appellate Court for fresh disposal in accordance with law. The Lower Appellate Court is directed to send the newly marked documents (Exs.R1 to R7) to the trial Court and both parties are given opportunity to adduce evidence and the trial Court should be directed to give a finding relating to Exs.R1 to R7 and thereafter, the Lower Appellate Court is directed to dispose of the appeal in a period of one month after receiving finding from the trial Court. No costs. Consequently, CMP No.172 of 2001 is closed."
17. Of course, it is true that this Court had directed the Lower Appellate Court to send the documents, which are to be introduced as additional evidence, to the trial Court and get a finding regarding the said documents to be given after giving opportunity to both parties to lead evidence relating to the said documents. But unfortunately this Court has not chosen to specify in unambiguous terms, the question regarding which the finding of the trial Court had to be obtained. A thorough consideration of the direction issued by this Court dated 29.06.2001 for remanding the appeal suit to the Lower Appellate Court for fresh disposal according to law will show that the High Court, in its order of remand has stopped with directing the Lower Appellate Court to call for a finding from the trial Court to be rendered after recording evidence to be adduced by both parties relating to the documents sought to be produced as additional evidence in the appellate stage. The Lower Appellate Court should have chosen to frame the exact question or questions on which the trial Court was to give its finding. Or else, since the High Court has not indicated the questions on which the finding had to be obtained from the trial Court, the Lower Appellate Court should have construed the direction as one for recording additional evidence and transmitting the same along with the report of the trial Court regarding the admissibility and reliability of the documents produced as additional evidence, leaving the other points raised in the appeal to be decided by the Lower Appellate Court. The learned Principal District Judge ( the Lower Appellate Court), on receipt of a copy of the Judgment made in S.A.No.10 of 2001 along with records, has simply chosen to send the entire case records to the trial Court for recording additional evidence and submitting a finding. At the cost of repetition, it is pointed out that the exact question on which the finding had to be submitted by the trial Court had not been framed and communicated to the trial Court. When such is the position, the trial Court was mislead by the absence of framing of such question and hence it had submitted a finding as to who was in the possession of the property and which one of the contesting parties was having title to the suit property. That is why the learned trial Judge after recalling and recording further evidence of D.W.1 and marking the documents produced in the appellate stage as Exs.B130 to B136 and in the light of the fact that the opposite party viz., the Plaintiff did not adduce any further evidence, came to the conclusion that the defendants had proved title to the suit property and that the defendants had also proved to be in possession of the suit property and submitted a finding to the Lower Appellate Court incorporating the said conclusion.
18. The Lower Appellate Court, after perusing the records and the finding submitted by the trial Court, was not prepared to accept the finding and that is the main reason for remanding the suit back to the trial Court for fresh disposal. The finding of the trial Court was rendered based on its appreciation of evidence. If at all the First Appellate Court thinks that such finding is erroneous, on re-appreciation of such evidence it could set aside the finding of the trial Court and reverse it. Instead of doing it, the learned Lower Appellate Judge seems to have thought it fit to invite a finding which the Lower Appellate Court wanted the trial Court to give and that that is why the order of remand under challenge in this appeal has been passed. The said approach made by the learned Principal District Judge (the Lower Appellate Judge) is erroneous and not in accordance with law. For that reason alone, this Court comes to a conclusion that the order of remand passed by the Lower Appellate Judge cannot be sustained in law and the same deserves to be set aside.
19.The learned Principal District Judge (the Lower Appellate Judge) has chosen to cite one additional reason for remanding the case back to the trial Court for fresh disposal. The additional reason is that the respondents/defendants filed I.A.No.34 of 2002 under Order 41 Rule 27 to receive one more document as Additional evidence. It is obvious from the Judgment of the Lower Appellate Court that the appellants did not oppose the said application and made an endorsement in the said application consenting for receiving the proposed additional document as a documentary evidence and for marking it as an Exhibit. Consequently the additional document produced for the second time by the respondents/defendants was marked by consent as Ex.B137. When Ex.B137 was marked by consent, there wont be any question of proving the said document as it stands proved by consent and that the introduction of the said document as a piece of evidence in the appellate stage cannot be a valid reason for setting aside the decree of the trial Court and remanding the suit back to the trial Court for fresh disposal. The entire evidence including Ex.B137 was available with the Lower Appellate Court. the Lower Appellate Court could have re-appreciated the evidence both oral and documentary, adduced on both sides and arrived at a conclusion regarding the issues in the appeal one way or the other. The mere fact that the trial Court, according to the Appellate Court has given a wrong or erroneous finding on a particular issue, cannot be the ground on which the suit can be remanded to the trial Court for fresh disposal.
20. For all the reasons stated above, this Court comes to the conclusion that the Judgment of the Lower Appellate Court and the order of remand cannot be sustained and the same deserve to be set aside. Considering the fact that it is a long pending case, this Court comes to the conclusion that it is just and necessary to fix a timelimit for disposal. Two months shall be quite reasonable.
21. In the result, the civil Miscellaneous Appeal is allowed and the order of remand of the Lower Appellate Court dated 28.03.2002 is hereby set aside. The Lower Appellate Court is directed to restore the appeal (A.S.No.9 of 2000) to its file and dispose of the same on merits based on the available evidence including Ex.B137 that was marked by consent in the first appeal, within a period of two months from the date of receipt of a copy of this Judgment. There shall be no order as to costs.
vri The Registry is directed to despatch the entire records immediately to the Lower Appellate Court.
To
1.The the Principal District Judge, Tiruvannamalai.
2.The District Munsif cum Judicial Magistrate, Chengam