Madras High Court
Subbiah Konar, Pandi @ Arunachala ... vs State Of Tamil Nadu Through District ... on 29 August, 2003
Equivalent citations: (2003)3MLJ524
JUDGMENT E. Padmanabhan, J.
1. This appeal has been preferred under Order 43 Rule 1 (u) of The Code of Civil Procedure challenging the order of remand passed by the learned Subordinate Judge of Sankarankoil made in A.S. No. 62/00 and reversing the judgment and decree of the learned Additional District Munsif of Sankarankoil dated 28.1.98 made in O.S. No. 512/90.
2. Heard the learned counsel appearing for the appellants and the respondents. With the consent of counsel for either side, the appeal itself is taken up for final disposal though it is listed before this Court today at the stage of notice of motion. For convenience, the parties will be referred as arrayed before the trial court.
3. The suit O.S. No. 512/90 was instituted by the plaintiff Malaiammal and four others seeking the relief of declaration of title and for permanent injunction. The defendants 1 to 3 resisted the suit. The trial court by judgment and decree dated 28.1.98 decreed the suit. Being aggrieved, the defendants 1 and 2 preferred A.S. No. 62/00 on the file of the Subordinate Judge of Sankarankoil. The learned Subordinate Judge of Sankarankoil, by judgment and decree dated 29.6.01 reversed the judgment and decree of the trial court, remanded the suit to the lower court for fresh disposal according to law, besides directing the trial court to frame appropriate issue with regard to standing trees. The first appellate court also granted liberty to either parties to adduce evidence in regard to the principal issue and the trial court was directed to decide all the issue afresh. Pending the first appeal the first plaintiff died and plaintiffs 2 to 5 continued the appeal. Challenging the said order or remand, the present appeal has been preferred by the plaintiffs in the suit.
4. According to the plaintiff the suit schedule first item originally belonged to one Muthuveeran, on his death his heir sold the property to the first plaintiff on 16.9.48. The suit property is covered by old patta No. 457 and new patta number being 446. Schedule items 2 and 3 also belonged to the said Muthuveeran, who sold to one Muthumadathi, who in turn sold to Chellaiah @ Vellaipandi Thevar on 20.3.69, who in turn sold to Sankarapandi Konar on 23.9.78. The lands are covered by patta issued in favour of the plaintiffs. The 4th item also originally belonged to Muthuveeran and Sankarapandi Konar purchased the same. The said Sankarapandi Konar died on 19.1.90 leaving behind the first plaintiff, who is his wife and plaintiffs 2 to 5, his sons.
5. According to the plaintiffs they have been enjoying the suit property as owners. It is also claimed that there are 60 Palmirah trees, two Neem trees and three Vage trees, which the plaintiff has been enjoying. The defendants are not having any right over the property and since the trees are in and around the suit schedule property, the defendants are trying to interfere with the possession and enjoyment alleging that the trees are standing in the poramboke land. Notice was issued under Section 80 CPC on 18.7.89 and thereafter, the present suit has been filed.
6. The defendants 1 and 2 denied the plaintiffs claim and also pleaded that the said trees are in survey No. 328/1 odai poramboke belonging to the Government. Only three Palmirah trees are standing in survey No. 244/7 belonging to the plaintiffs. The defendants are not interfering with the possession and enjoyment of the trees that stand in the patta land and there are no merits in the suit filed.
7. The trial court framed three issues and on a consideration of oral and documentary evidence, decreed the suit. The defendants preferred the appeal. The first appellate court framed the following two points for consideration :-
"i) Whether the plaintiffs are entitled to declaration and consequential relief of injunction prayed for ?
ii) To what relief, if any ?"
8. The first appellate court, while holding that the conclusion of the trial court that the said trees are standing within the four boundaries of the plaintiffs land is erroneous and reversing the finding of the trial court in respect of the claim of title, answered the first point against the plaintiffs and in favour of the defendants. Having answered the first point in favour of the defendants and against the plaintiffs in respect of the title, in respect of the second point, the first appellate court, while pointing out that the burden lies on the plaintiffs, held that the plaintiffs have to prove their case as the burden is on the plaintiffs to prove that the suit trees are located within the plaintiffs property by appointment of a Commissioner and fixing the boundary. The appellate court pointed out that the plaintiffs should have taken out a commission to measure the property and fix the trees, which the plaintiffs have failed to. In that view the first appellate court remanded the matter to the trial court with a direction that the plaintiffs have to move the trial court for appointment of a commissioner to fix the trees. The first appellate court also directed the trial court to frame appropriate issue about the standing and decide the matter afresh after submission of commissioner's report, while giving liberty to both sides to adduce evidence.
9. It is rightly contended by the counsel for the appellant that having held that the plaintiffs have no title and having held that the trial court is erroneous in granting a decree, having reversed the judgment of the trial court, while holding that the plaintiff on the available evidence is not entitled to declaration and consequential injunction prayed for, it is not open to the first appellate court to remand the matter to enable the plaintiffs to fill up the lacuna or to let in fresh evidence. According to the learned counsel, the order of remand cannot be sustained as it will not fall under the power of remand conferred by Order 41 Rule 23 and 23-A of The Code of Civil Procedure, much less, this is not a case where inherent powers of remand could be invoked by the first appellate court.
10. The learned counsel for the respondents/plaintiffs contended that no interference is called for, but such a contention overlooks the very findings recorded by the first appellate court. In paragraphs 11 to 15 of the judgment, the first appellate court has rendered a finding in favour of the defendants and against the plaintiffs. The findings recorded reads thus :-
"11. The plaintiffs are the persons who have come forward with the suit for declaration of title to property as well as the standing trees thereon. Therefore, in order to get the relief as prayed for, the plaintiffs have to prove that not only the scheduled properties belonging to the plaintiffs but also the standing trees are also within the boundaries. Because the defendant has specifically denied and further stated that except 3 palmira trees other trees are within the boundaries of the land belonging to the defendant.
12. The trial court while dealing with the matter burden of proof on the defendants. The defendants have not come with the suit. The defendants have not sought for any declaration. But the plaintiffs have come with the suit for declaration and therefore the burden lies only on the plaintiff. But the trial court has fixed the burden on the defendant wrongly. Basing on that wrong assumption the trial court has come to a conclusion that the defendant has failed to establish that the trees are standing in their land and therefore the case of the plaintiffs stands proved. This conclusion is erroneous.
* * * *
14. The trial court has come to a conclusion that the trees are standing within the boundaries of the land belonging to the plaintiffs basing on Exs.A-1, A-3, A-4 and A-5. These documents reveal that certain palmira trees and one neem tree are in the scheduled property. It does not automatically give right to the plaintiffs. Once the defendants denied about the existence of the said trees within the boundaries, the boundaries have to be fixed at first. Then only we can decide whether the trees are within the boundaries or not. Therefore the conclusion of the trial court in this regard is also erroneous.
15. The trial court has given declaration and consequential injunction by shifting the burden on the defendants. The view of the trial court is therefore wrong and hence it is liable to be reversed. The plaintiff, therefore, on available evidence is not entitled to the declaration and consequential injunction as prayed for and answer point No. 1 against plaintiffs."
11. Having recorded a finding that the plaintiffs have miserably failed to discharge the burden and having held that the trial court proceeded on a wrong assumption and erroneous view that the defendant has to prove the negative, having held that the conclusion of the trial court is erroneous and set aside the judgment of the trial court granting a decree for declaration and consequential injunction. The first appellate court also held that the plaintiffs on available evidence are not entitled to the declaration and consequential injunction as prayed for. Thus having answered the point against the plaintiffs and in favour of the defendants with respect to the claim of title and possession, there is neither a justification nor a warrant for the first appellate court to remand the matter to the trial court.
12. As seen from para 15 and 17 of the judgment of the first appellate court, the first appellate court, after having negatived the plaintiffs claim of title and injunction, has remanded the entire suit so as to enable the plaintiffs to fill up the lacuna by way of appointment of commissioner and identifying the trees, which fell within the suit properties of the plaintiff and that of the defendants. Such an approach cannot be sustained.
13. In terms of Order 41 Rule 23, the appellate court, if it thinks fit, remand the case, if the suit has been disposed upon a preliminary point and such a decree is reversed in appeal. This is not the case here. It is also not as if in the view of the first appellate court, the reversal of the trial court decree, a retrial is called for or warranted in terms of either Order 41 Rule 23 or 23-A or in exercise of powers of remand. In the present case, having negatived the plaintiffs case with respect to the claim of title and possession, and having held that the plaintiffs have miserably failed to substantiate their case, there is no scope at all for remand by the first appellate court.
14. It is well settled that remand is not meant to give another chance to the parties to fill up the lacuna or to substantiate what the plaintiffs or defendants have failed to prove or establish. Remand is also not permissible to fill up the lacuna or to enable the parties to let in fresh evidence when the very plaintiffs who come forward with the suit have failed to establish their case. In the light of the findings extracted above, it is not open to the first appellate court, in our considered view to remand the appeal to the trial court.
15. In this respect, the pronouncement of the Supreme Court in P. PURUSHOTTAM REDDY & ANOTHER VS. PRATAP STEELS LIMITED reported in 2002 (2) MLJ 99 (SC) has been rightly relied upon by the counsel for the appellant. In the said pronouncement the Supreme Court held thus :-
"10. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in O.41 of the Code of Civil Procedure by the C.P.C. Amendment Act, 1976, there were only two provisions contemplating remand by a Court of Appeal in O.41, Rule 23, C.P.C. Applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the Subordinate Court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefore of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before the 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Sec. 151, C.P.C. to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of O.41, C.P.C. In cases where additional evidence is required to be taken in the event of anyone of the Clauses of Sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976, Rule 23-A has been inserted in O.41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial Court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate Court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, , it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand de hors Rules 23 and 23-A. 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 O.20, Rule 3 or O.41, Rule 31, C.P.C., and hence it is no judgment in the eye of law, it may set aside the same and send 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 23-A or Rule 25, C.P.C. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
16. In the light of the above pronouncement of the Supreme Court, the above dicta, wherein the Supreme Court has, after detailed consideration of the earlier case law held that remand is permissible only if the trial court disposed of the case otherwise then on a preliminary point and the decree is reversed in appeal and retrial is considered necessary. Remand is permissible only if the said twin conditions being satisfied and not otherwise. While following the pronouncement of the Supreme Court, we are of the considered view that remand ordered by the first appellate court cannot be sustained. The Supreme Court has also cautioned that an unwarranted order of remand gives a litigation an undeserved lease of life, which should be avoided.
17. It may not be necessary to refer to any other pronouncement excepting the earlier pronouncement of this Court in SRINIVASAGAM VS. KUTTIAH , where in the consistent view of this Court has been reiterated holding that remand cannot be made just to fill up a lacuna by allowing the party to adduce evidence, but remand is possible only if the court feels that further evidence is necessary for arrival at the just decision. This is not the case here. Having held that the plaintiffs have miserably failed to prove their case of title and possession and having set aside the judgment of the trial court as casting onus wrongly and the erroneous view taken in this respect, it is not open to the first appellate court to remand the matter to fill up the lacuna or just to enable the plaintiffs to seek for appointment of commissioner.
18. If for any reason the first appellate court had the difficulty in deciding as to which of the trees are within the plaintiffs patta land, the first appellate court could have itself appointed a commissioner, called for a report and decided the controversy instead of remanding the entire suit after having held that the plaintiffs have miserably failed to establish their claim of title and negatived the claim of injunction as well.
19. In the foregoing circumstances, by following the pronouncement of the Supreme Court in P. PURUSHOTTAM REDDY & ANOTHER VS. PRATAP STEELS LIMITED reported in 2002 (2) MLJ 99 (SC), we allow this appeal, set aside the order of remand made by the Subordinate Judge of Sankarankoil in A.S. No. 62/00 and remand the matter to the learned Subordinate Judge of Sankarankoil to dispose of the appeal de novo on merits and according to law. We also make it clear that if the first appellate court deems fit, it is well open to the plaintiffs themselves to seek for appointment of commissioner for fixation of boundaries and location of the trees and thereafter, the court may dispose of the appeal on merits as well.
20. In the result, this appeal is allowed. The order of remand made by the first appellate court is set aside and the first appellate court is directed to proceed with the first appeal according to law. The parties shall bear their respective costs in this appeal. Consequently, connected miscellaneous petitions are closed.