JUDGMENT Prakash Krishna, J.
1. This is plaintiffs appeal. Suit No. 386 of 1981 was filed against the present defendant respondents for permanent injunction directing them to remove the disputed construction shown by letters GHIJ and MLK and hand Pipe and the trees sown by them and restored back the possession of the plaintiffs over the disputed land,
2. It was pleaded that the plaintiff is owner in possession of a house described by letter 'X' and 'Baithaka' described by letter 'Z' in the map annexed with the plaint. The land towards west of the Baithaka described by letter L M C D I J K is the property of the plaintiff and is the land appurtenant to the plaintiffs house and Baithaka and has been settled with him under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. He has been in possession of the disputed land since before the abolition of zamindari and using it as a Sahan land for tethering the cattle, etc. The possessive title was also claimed and the plea of adverse possession on the property in question being in possession for the last 20 years was also set up in the plaint. The cause of action is that the defendants have raised construction and installed a hand pump and planted trees. Hence the suit.
3. The suit was contested by the defendant respondents by denying the plaintiff's title and claiming title themselves. It was further pleaded that the defendants since the time of their ancestor are using the disputed land as their family graveyard and the plaintiff has no right to use the same. The suit is barred by Section 34 of Specific Relief Act.
4. The parties led evidence and seven issues were framed by the trial court on the basis of pleadings. The issue No. 1 was to the effect as to whether the plaintiff is the owner in possession of the disputed land and the things standing thereon. During the pendency of the suit the trial court issued a Commission for spot inspection. The Commissioner submitted his report and prepared a site plan. The plaintiff filed objection to the Commissioner's report vide paper No. 44C which was supported on affidavit vide Paper No. 45C. The Commissioner's report 41A, was accepted by the trial court subject to the evidence of the parties.
5. The suit was decreed by judgment and decree dated 21.12.1982 on the finding that the land in dispute was not a graveyard and the plaintiff has been able to prove his ownership and possession over the disputed property. The trial court has further found that the plaintiff is entitled for the decree on the basis of his possession having acquired ownership right. The defendants have failed to prove that the disputed property is their ancestral graveyard. The other issues regarding acquiescence and estoppel, the suit is barred by time, and is hit by Section 34 of the Specific Relief Act, etc. were decided in favour of the plaintiff.
6. The said decree of the trial court has been set aside by the court below in Civil Appeal No. 2 of 1983 by its judgment and decree dated 8.11.1983 and the matter has been remanded to the trial court for reconsideration of the dispute with the direction that the trial court shall decide the objections filed to the Commissioner's report first and thereafter afford proper opportunity to the parties to produce evidence and then decide the suit within a period of three months. Challenging the aforesaid order of remand present appeal has been filed by the plaintiffs.
7. Heard learned counsel for the parties and perused the judgment of the Courts below.
8. Learned counsel for the respondent has summarised the grounds on which the order of remand is founded. They are as follows :
(1) The land in dispute is not identifiable.
(2) The trial court has not followed the earlier directions given by the District Judge in Misc. Appeal No. 181 of 1981 by order dated 22.1.1982.
(3) The issues were not properly framed by the trial court.
(4) The objections to the Commissioner's report was not considered.
(5) The judgment of the trial court is not in accordance with the Code of Civil Procedure.
(6) Order XXXIX, Rule 1 of the Code of Civil Procedure was not followed.
(7) The trial court has failed to appreciate the evidence on record correctly.
9. So far as the question of identifiability of the land in dispute and non-consideration of the objections to the Commissioner's report are concerned, indisputably the Commission was issued by the trial court for spot inspection, who submitted a map which is on the record. Learned counsel for the appellant brought to my notice that in appeal the Presiding Officer himself did spot inspection on the earlier occasion. The memo of inspection is on the record. Therefore, the order of remand on the ground that the land in dispute is not identifiable is not justified. It is fairly settled by law that the appellate court can issue a Commission for spot inspection, if it considers necessary. In the present case the report of the Commissioner is on the record and has been made part of the decree by the trial court. The objection to the Commissioner's report were filed by the plaintiff. The grievance, if any, for consideration of the Commissioner's report could have been raised by the plaintiff and not by the defendants. It is not the case of the defendants-respondents that they did file any objection to the Commissioner's report (Paper No. 41-Ka). The appellate court has noticed that the plaintiffs raised objection against the Commissioner's report vide Paper No. 44C and 45C. In absence of any objection by the defendants to the Commissioner's report it cannot be said that the defendants have in any manner been prejudiced by consideration of the Commissioner's report by the trial court. Therefore, the order of remand cannot be justified for non-consideration of the plaintiff's objection to the Commissioner's report in appeal filed by the defendant. Apart from the above, the memo of spot inspection made by the Presiding Officer of the appellate court is on the record. Still it is open to the appellate court itself to issue a fresh Commission for spot inspection.
10. The second ground for passing of the order of remand is that the trial court has not followed the directions given by the District Judge, in Misc. Appeal in its order dated 22.1.1982. A copy of the said order was produced before me by the learned counsel for the appellant. A perusal of the said order shows that the District Judge disposed of Misc. Appeal No. 181 of 1981 by order dated 22.1.1982. The subject matter of aforesaid appeal was the grant or not to grant ad interim injunction order during the pendency of suit. The observations made by the District Judge was with respect to the a d interim injunction matter. There is no direction nor the learned counsel for the respondent could point out any such direction with regard to final disposal of the suit. Therefore, second ground for remand also fails.
11. The remaining points may be taken up together as they are overlapping with each other. The crux of the order of remand is that the trial court in the opinion of first appellate court, failed to frame the issues properly. The first appellate court has recasted them and dealt with the matter in para 10 of its judgment. He accepted the submissions of the learned counsel for the defendants that the findings recorded by the trial court are totally illegal and against the provisions of Code of Civil Procedure. A reading of the entire judgment does not show violation of any specific provision of the Code of Civil Procedure except Order XXX. Order XXX of the Code of Civil Procedure deals with suit by or against the firm and persons carrying on the business in the name other than their own. The said provision has hardly any application to the facts of the present case. There appears to be some typographical error in the judgment. Learned counsel for the respondent also could not point out any specific provision of the Code of Civil Procedure, which was not followed or violated by the trial court. The substance of the judgment of the trial court is that objection to the Commissioner's report should have been disposed of first and that issues were not properly framed by the trial court. I find sufficient force in the argument of the learned counsel for the appellant that if the plaintiff has claimed relief on the basis of three alternative pleas and he has been able to prove one plea sufficient to entitle him to get the relief, it is not necessary for him to establish all the three pleas. It has been noticed in the earlier part of this judgment that the trial court found under Issue Nos. 1 and 2 that the plaintiff has become owner of the land in question on the basis of his possession and the defendant has failed to prove that it is their family graveyard. On merits this part of the finding has not been set aside by the appellate Court. It was open to the appellate court to have considered the material and evidence to set aside, modify or confirm the said finding and pass appropriate decree.
12. Even though a remand under Order XLI, Rule 23, C.P.C. is within the discretion of the appellate court, that discretion has to be exercised on sound and reasonable premises and guided by judicial principles and the remand order should not be arbitrary or without sufficient cause. The mere fact that the evidence on record is not sufficient to enter a definite finding on the point in issue, is not sufficient to enable the appellate court to remand the matter. A remand should not be made to enable the party to fill up the lacuna in this case. These principles are laid down by a Division Bench of the Madras High Court in the decision in Middi Ramakrishna Rao v. Middi Rangayya, AIR 1954 Mad 783.
13. In the decision in M. Keshava Kamath v. C. Abdul Shakoor, 1969 KLJ 754, Kerala High Court has observed as follows :
"I, therefore, think that merely because the trial court had wrongly declined to reopen the case and hear the arguments it does not follow that the decree should have been set aside and the suit remanded for fresh disposal. This would only lead to further expense and delay. On the other hand, the appellate court should have heard the arguments in extenso and disposed of the case. Failure to do so was, in my opinion, wrong. Even where the judgment of the lower court involves misconception, misreading of evidence, or ignoring important evidence bearing on the question to be decided or is otherwise contrary to law, a remand for writing a more satisfactory judgment should not be made."
14. In the decision in Rushi v. Madan Behera, AIR 1986 Ori 207, a single Judge of the Orissa High Court has observed as follows :
"...........I may not be understood to express that the appellate court has no power to remand on the facts of this case. It should have first assessed the evidence and dealt with the finding and then given the reason why it would not be in a position to give a finding. In that case only an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the court. Merely because a power is vested the appellate court is not to exercise it as it desires." (page 208).
15. In the decision in K. Krishna Reddy v. Special Dy. Collector Land Acquisition, Unit II, AIR 1988 SC 2123, the Supreme Court has observed as follows :
"................ The appellate power of remand, at any rate ought not to be exercised lightly. It shall not be resorted to unless the award is wholly unintelligible. It shall not be exercised unless there is total lack of evidence. If remand is imperative, and if the claim for enhanced compensation is tenable, it should be proper for the appellate court to do modest best to mitigate hardships.........."(p. 2125)
16. In the decision in Srinivasagam Pillai v. Kuttiah, AIR 1989 Mad 18, Madras High Court has observed as follows :
".............. It should be noted further that before remanding the case Order XLI, Rule 23 itself contemplates that the appellate court should reverse or set aside the decree. Reading the rules together this provision will not apply to a case where the trial court has considered the entire evidence but in the opinion of the appellate court a different view ought to be taken of the evidence and the appellate court is in a position to come to a finding on the evidence on record. In such a case, it is the duty of the appellate court to consider the matter as it stands and give its own finding in reversal of the finding of the trial court. But that would not justify a remand........." (page 19)
17. In Ashwinkumar K. Patel v. Upendra J. Patel, 1999 (2) AWC 1481 (SC) : AIR 1999 SC 1225, it has been held as follows :
"The High Court should not ordinarily remand a case under Order XLI, 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. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. Thus the remand by the High Court was not necessary."
18. In P. Purshottam Reddy v. Pratap Steels Ltd., 2002 (3) AWC 2364 (SC) : AIR 2002 SC 771, it has been held as follows :
"It is only in exceptional cases the Court may exercise the power of remand de hors the Rules 23 and 23A. 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 Order XX, Rule 3 or Order XLI, 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 sent the matter back for rewriting 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 23A or Rule 25 of the C.P.C. An unwarranted order of remand gives the litigation on undeserved lease of life and therefore, must be avoided."
19. It is thus clear from the dicta laid down from the above that discretionary jurisdiction vested in the appellate court to remand the matter to the trial court cannot be exercised in cases where the appellate court can decide the issue considering the evidence on record. It is also clear that the remand cannot be made out due to the reasons that the finding recorded by the trial court are erroneous or due to misreading of evidence or due to failure to apply correct law.
20. Supreme Court disapproved remittal of whole case by the appellate court where finding of specific point was required vide P. Venkatavash Warlu v. Motor and General Traders, AIR 1975 SC 1409. Order XLI, Rule 25 of C.P.C. gives power to the appellate court to frame and refer the issue, which appears to the appellate court essential to the right decision of suit upon merit to the trial court. It is open to the appellate court to re-appreciate evidence on record. If it finds that some material issue was omitted by the trial court, it can frame it and remit it to the trial court for deciding the same after recording evidence.
21. An argument was raised by the learned counsel for the respondent on the basis of observation made by the Court below in the judgment that the counsel for the plaintiff accepted the position before the Court below that proper analysis of the evidence was not done by the trial court. Therefore, the order of remand is justified. This argument has no force. A further reading of this judgment shows that the counsel for the plaintiff also submitted that the conclusion reached by the trial court is correct. The counsel for the plaintiff did not consent for the order of remand. The remand on consent of parties is not legal unless the procedure prescribed under Order XXIII, Rule 3, C.P.C. are strictly followed vide Durai Raj v. Shan Mangham, 1980 (1) MLJ 291.
22. The upshot of the above discussion is that the order of remand cannot be justified, The order under appeal is set aside. Civil Appeal No. 2 of 1983 is restored to its original number for fresh decision in the light of observations made above. It is open to the appellate court to exercise its power under Order XLI, Rule 25 of the Code of Civil Procedure, if it considers necessary.
23. In the result appeal succeeds and is allowed. The order dated 18.11.1983 is set aside. There will be, however, no order as to costs.