:COMMON JUDGMENT These Civil Miscellaneous Appeals have been filed against the judgment and decree passed in A.S.Nos.69 and 138 of 2004 dated 28.02.2005 respectively, on the file of the Principal District Judge, Tirunelveli, and setting aside the decree passed in O.S.No.249 of 1999 and O.S.No. 226 of 1989 on the file of the second Additional Subordinate Judge, Tirunelveli respectively dated 09.12.2003 on the following grounds,
(i)The Lower Appellate Court erred in law in setting aside the Judgment and Decree of the trial Court and remanding the same for fresh trial in the absence of any requirements contemplated under Order 41, Rule 23 and Rule 23- A of Civil Procedure Code.
(ii)The Lower Appellate Court erred in law in proceeding on the assumption that the document under Ex.A.4 has been invalidated on the basis of the prior proceedings under Ex.B.2 evidently overlooking the absence of any pleadings or evidence on the side of the respondents.
(iii)The Lower Appellate Court completely overlooked and failed to advert to the issues framed before the trial Court and indisputably no issues have been framed with reference to the validity or otherwise of Ex.A.4.
(iv)The Lower Appellate Court erred in law stating that the appellants failed to produce Ex.A.1, the gift deed evidently overlooking the genuineness of the said document has not been disputed and a copy of the deed has also been produced and marked as Ex.B.1.
(v)The Lower Appellate Court having found that respondents faild to establish and produce documents relating to the claim made by the respondents erred in law remanding the same which would enable the respondents to fill up lacuna.
(vi)The Lower Appellate Court erred in law in not adverting to the evidence of P.W.1 and P.W.2 and corroborated by the documentary evidence and EX.A.2 to A.28 which would establish the claim of the appellants.
(vii)The Lower Appellate Court completely overlooked that the suit has not been disposed of on any preliminary stage and as such as retrial is necessary.
(viii)The Lower Appellate Court erred in law in not adverting to the power of the Appellate Court as provided for under Order 41 Rule 25, Order 41 Rule 26 of Civil Procedure Code.
2.When the matter came for final hearing, this Court, suggested that the matter may be remitted back to the Lower Appellate Court and as the subject matters in the suits are of the year 2004 and these being partition suits, these matters can be decided by the Lower Appellate Court itself would be appropriate and both the parties had given their consent, for the suggestion made by this Court. Accordingly, with the consent of both the parties, these matters are remanded back to the Lower Appellate Court that is the Principal District Judge, Tirunelveli for hearing the matter by the Court afresh and both the parties are directed to let in oral and documentary evidence. The Principal District Judge, Tirunelveli shall consider the case of both the parties in detail, after giving opportunity.
3.The Lower Appellate Court shall dispose of the the case, as expeditiously as possible preferably on or before 30th April 2018. The parties are directed to co-operate with the Court without unnecessary adjudication.
4.In the result, these Civil Miscellaneous Appeals are disposed of. No costs. Consequently, connected Civil Miscellaneous Petitions are closed.
To
1.The Principal District Judge, Tirunelveli
2.The second Additional Subordinate Judge, Tirunelveli
3.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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