(Prayer: Civil Miscellaneous Appeal is filed under Section 43 Rule 1 of C.P.C. against the decree and judgment dated 27.03.2002 made in A.S.No.7 of 2002 on the file of the Additional District Judge cum Chief Judicial Magistrate, Tuticorin reversing the judgment and decree dated 21.09.1998 made in O.S.No.554 of 1995 on the file of the Additional District Munsif, Tiruchendur.)
1. The civil Miscellaneous Appeal has been filed against the decree and judgment dated 27.03.2002 made in A.S.No.7 of 2002 on the file of the Additional District Judge cum Chief Judicial Magistrate, Tuticorin reversing the judgment and decree dated 21.09.1998 made in O.S.No.554 of 1995 on the file of the Additional District Munsif, Tiruchendur.
2. The respondents 1 and 2 herein filed a suit in O.S.No.554 of 1995 before the learned Additional District Munsif, Tiruchendur, praying for declaration, to declare that the respondent are having joint right over the 2nd schedule lane and for permanent injunction, restraining the defendants from interfering with the joint possession of the respondents over the 2nd schedule property and for restraining them from putting up any construction over the 1st and 2nd schedule properties.
3. The case of the plaintiffs is that the 1st schedule property was originally belonged to one Gabriel Benjamin and others. One Aramvalarthaammal purchased the aforesaid property and she bequeathed the 1st schedule property and other properties in favour of the plaintiffs in the year 1978 and after her death, the plaintiffs were entitled to the same. The second schedule property lane situated between the 1st schedule property and the property belonged to the defendants, the same was used as common lane by both the parties. The plaintiffs and their predecessors in title are in open, continuous possession of the 2nd schedule lane for more than statutory period and also acquired prescriptive rights to enjoy the same. From 14.12.1992 onwards, the defendants putting forward the claim over the 2nd property and also threatening the defendants to encroach over the 2nd schedule property and also eastern portion of the 1st schedule property by doing constructions and hence, the suit has been filed by the defendants.
4. Resisting the same, the defendants filed a detailed written statement by disputing the claim of the plaintiffs and the various measurements and boundaries given are not correct and the reference to the other boundaries as common is also nor correct and neither the plaintiffs nor their predecessors in title have no right beyond the southern wall. The 2nd schedule property is not a common lane and the plaintiffs are entitled to only a share in the southern wall and the lane is belonged to the defendants. The plaintiffs, after filing the suit, made some openings of the upper portion of the southern wall with ulterior motive and he prayed for the dismissal of the suit.
5. The trial Court, on considering the plaint and written statement, framed necessary issues and also considering the oral and documentary evidence made on either side, dismissed the entire suit. Against which, the plaintiffs filed an appeal in A.S.No.7 of 2002 before the learned Additional District Judge cum Chief Judicial Magistrate, Tuticorin, where, the judgment and decree of the trial Court was set aside and the matter was remitted back to the trial Court for the purpose of deciding the measurements and also for appointment of an Advocate Commissioner by the trial Court. Aggrieved against the said judgment and decree, the defendants have come forward with the present civil miscellaneous appeal.
6. Heard the learned counsel for the appellants and the learned counsel for the respondents.
7. The learned counsel for the appellants/defendants would submit that the first appellate Court on a total misconception of pleadings and evidence allowed the appeal, which is contrary to law. Even though the first appellate Court has specifically found that the measurements of the second schedule property have not been established, remitted the matter back to the trial Court for the purpose of filling up the lacuna, which is not permissible under law. He would further submit that the first appellate Court is wrong in relying upon the boundary recitals to uphold the claim of the respondents without adverting to the various discrepancies in the documents of the title relied upon by the respondents and hence, he prayed for the allowing of the appeal.
8. Per contra, the learned counsel for the respondents 1 and 2/plaintiffs would submit that the first appellate Court has come to the correct conclusion in allowing the first appeal and remitting back the matter to the trial Court with a direction to appoint an advocate commissioner to measure the suit property and submit the report along with the plan and thereafter, to decide the suit after providing opportunities to both sides and hence, he prayed for the dismissal of the appeal.
9. The respondents 1 and 2/plaintiffs have filed the suit in O.s.No.554 of 1995 before the learned Additional District Munsif, Tiruchendur, which was dismissed by the trial Court, against which, the plaintiffs have preferred an appeal in A.S.No.7 of 2002 before the learned Additional District Judge cum Chief Judicial Magistrate, Tuticorin, where the appeal was allowed and the matter was remitted back to the trial Court for fresh consideration with direction. Against which, the appellants/defendants have come forward with the present civil miscellaneous appeal.
10. The point for consideration in the civil miscellaneous appeal is as to whether the order of remand passed by the first appellate Court is sustainable under law or not?
11. The original suit in O.S.No.554 of 1995 was filed for the relief of declaration and permanent injunction. In the appeal suit, the respondents/plaintiffs have produced additional evidence and marked the documents in Ex.A14 before the first appellate Court. The defendants/respondents therein have objected the said document for marking the same.
12. At this juncture, it is useful to extract the provisions of Order 41 Rule 27 of C.P.C.
27 . Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
From the light of above said provisions, it is clear that the first appellate Court has to satisfy the provisions under Order 41 Rule 27 of C.P.C. Insofar as the present case is concerned, the first appellate Court has not rendered any findings as contemplated under the above provisions. In the absence of the reasons in the findings, the judgment and decree of the first appellate Court in allowing the appeal suit and remitting back the matter to the trial Court for fresh consideration, after appointing an advocate commissioner to measure the suit properties and submit and report along with plan and to proceed with the suit, require warrant interference by this Court.
13. It is also useful to extract the provisions of Order XLI Rule 27 of C.P.C.
28. Mode of taking additional evidence Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
14. It is the general principle that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41, Rule 27 of C.P.C., enables the appellate Court to take additional evidence in exceptional circumstances. The appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provisions does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.
15. Following the said principle, I am of the view that the first appellate Court has not followed the provisions of Order 41, Rule 27 of C.P.C., while remanding back the matter to the trial Court and hence, the order of remand passed by the first appellate Court is not sustainable under the provisions of Order 41, Rule 27 of C.P.C. and the same warrant interference of this Court.
16. In view of the above discussions, the civil miscellaneous appeal is allowed and the decree and judgment dated 27.03.2002 made in A.S.No.7 of 2002 on the file of the Additional District Judge cum Chief Judicial Magistrate, Tuticorin is hereby set aside. The appeal suit in A.S.No.7 of 2002 is remitted back to the learned Additional District Judge cum Chief Judicial Magistrate, Tuticorin, to appoint an Advocate Commissioner to elucidate the oral evidence in respect of the measurement of the property, after giving opportunities to both parties. The appellate Court shall follow the provisions of Order 41, Rule 27 of C.P.C., while production of additional evidence by both parties. Since the appeal suit is of the year 2002, the Appellate Court is directed to dispose of the same, as expeditiously, on merits and in accordance with law. The Registry is directed to send back the original records to the Court concerned. No costs. Consequently, connected miscellaneous petition is closed.