Srinivasa Reddy, J
1. In this appeal the appellants-plaintiffs call in question the judgment and decree of the Court-below allowing the appeal and remanding the matter back to the Trial Court with a direction to allow the parties to lead further evidence and to dispose of the case afresh.
2. The plaintiff filed the suit for declaration that the defendant has no right whatsoever in an area measuring 0.4.0 of Sy.No. 113 of Shedageri Village and for consequential relief of mandatory injunction. The plaintiff also gave the boundaries of the area in respect of which the suit was filed. The plaintiff claimed that the suit land was granted to them on 19.1.1972 under a Kabulayat executed by him in favour of the Government and possession was handed over to him on 21.1.1972 and mutation entry No. 3023 has also been effected in that regard. The plaintiff further averred that on 1.10.1973 the survey of the land was conducted and in the month of December, 1972 an area of 0-2-5 in Sy. No. 113 and 114 A was granted to the defendant and in respect of the said grant in favour of the defendant the mutation entry 3102 has been effected. Taking advantage of the absence of the plaintiff the defendant trespassed over the suit land and has put up some construction over part of the suit land. On the basis of these averments the plaintiff sought for the decree of declaration and prohibitive injunction.
3. The defendant resisted the suit by filing the written statement to the effect that the plaintiff never took possession of the suit land and the documents on which the plaintiff relies are all got up documents in collusion with the revenue authorities, that the defendant and his family members are resisting in the suit land and are in actual and continuous possession of the same since 1972; that he had been treating the said land as his own and that he has perfected his title by adverse possession.
4. The Trial Court formulated eight issues. All the issues were answered in favour of the plaintiff and the suit of the plaintiff was decreed. The issue of adverse possession was dealt with by the Trial Court as issue No. 7 and the same was answered in the negative and against the defendant. Being aggrieved, the defendant went up in appeal before the Prl. Civil Judge (Sr. Dvn.) Karwar.
5. The Court-below framed the following issues as arising for its consideration:
1) Whether there are legal infirmities in the judgment of the Trial Court?
2) Whether production of the additional evidence as is sought for can be allowed?
Answering both the issues in the affirmative the Court-below allowed the appeal setting aside the judgment and decree of the Trial Court and remanding the matter back to the Trial Court for fresh trial. Hence the appeal by the aggrieved plaintiff.
6. I have heard the Learned Counsel on both sides.
7. The question that arises for my consideration in this appeal is:
Whether the Court-below was right in remanding the matter back to the Trial Court on the grounds mentioned by it in the impugned Order?
8. The order of remand by the Court-below rests on the reasoning that the exact measurement of the portion actually encroached upon by the defendant is not forthcoming in the record. The Court-below was of the view that in the absence of such specific identification of the encroached area by the defendant the decree would become vague and unexecutable. The Court-below has reasoned that production of survey map as additional evidence by the appellant (defendant) would be necessary for proper identification of the suit land. The defence set-up by the defendant in the trial was one of adverse possession. The defendant never claimed that he is the owner of the portion of the land on which allegedly he had encroached upon. The plaintiff has given the boundaries of the suit land. The Trial Court had also appointed a Commissioner for local inspection of the spot. The Commissioner visited the spot and submitted a report. The report is marked as Ex.C-1. From the report and sketch the suit property can be easily identified and the portion on which the defendant has encroached has been highlighted by the Commissioner in red. I have examined the sketch drawn by the Commissioner after visiting the spot and in my considered view the identification of the property of the plaintiff or the portion on which the defendant has encroached upon would pose no difficulty at all. The encroached portion is far removed from the land of the defendant and is in no way connected to the land of the defendant. The encroached area is on the southern side whereas the land of the defendant is on the northern side. The P.T. sheet drawn after the survey of the land in 1973-74 in which the suit land is clearly carved out and shown with the letters ABCD is produced as Ex.P3. The Court-below has completely lost sight of this document and it grossly erred in holding that it is a fit case where production of the additional evidence as sought is to be allowed. In my considered opinion, the identification of the suit land and the encroached portion of it can be easily identified with the help of the boundaries given by the plaintiff, Ex.P3 the P.T. report and the sketch drawn by the Commissioner and there was absolutely no need for any additional evidence for purpose of identifying either the suit land or the portion encroached upon by the defendant. The well-settled principle of law that boundaries prevail over actual measurement has been completely lost sight of by the Court-below. Thus, I find that the Court-below could not have remade the case for re-trial on this ground.
9. The provision governing additional evidence is Order 41, Rule 27 C.P.C. which reads as follows:
'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 such 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'
In the present case the Trial Court had not refused to admit in evidence the sketch sought to be produced by the defendant in the Court-below and nor was it sought to be done on the ground 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 by the Trial Court. The Court-below felt the need to have the document on record as in its considered opinion the suit cannot be effectively disposed off without the aid of the documentary evidence sought to be produced in the appeal filed before it by the defendant. Therefore the only option that was open to the Court-below in the matter of allowing such evidence was under Clause (b) if in its opinion the same was required by it to pronounce judgment or for any substantial cause. When the Court felt the need to allow production of any document not produced before the Trial Court, it should have acted in accordance with Clause (b) whereunder it is required to allow such evidence or document to be produced and then decide the matter by itself. Therefore, the need for production of any evidence or a document alone cannot serve as the reason or basis for remanding the matter.
10. The remand order in the present case is under Rule 23A because the Trial Court, from whose decree an appeal is preferred, has disposed of the case on merits and the decree is reversed in appeal and re-trial is ordered by the Court-below. The rule reads:
'23-A Remand in other cases.-Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.'
No doubt the rule permits the Court to order a remand in the case of a decision on merits but the power under Rule 23A can be exercised by the Appellate Court only after the Appellate Court records a finding that the judgment and order of the Trial Court are erroneous and liable to be set aside. Though the rule itself does not circumscribe the power of remand, this power has to be exercised sparingly and only if the Appellate Court comes to a conclusion that the entire findings of the Court of first instance would get vitiated if the evidence sought to be produced before it is allowed to be produced. No such finding has been recorded by the Court-below in the present case. In PATTAMMAL v. YASOTHA AMMAL, MLJ 1980(1), 447 a learned Single Judge of the Madras High Court dealt with the scope of the power under Rule 23-A and observed:
'The power of remand under Order 41, Rules 23 and 23-A, Civil Procedure Code can be exercised by the Appellate Court if it comes to the conclusion that the judgment and decree of the Trial Court are erroneous on facts or on law and are therefore, liable to be reverse or set aside. After coming to such a conclusion if the Appellate Court is of opinion that the interests of justice require that there should be a fresh trial it can remand the suit for fresh disposal. The discretion of the Appellate Court to order retrial is unfittered. But this discretion is not to be exercised in an arbitrary manner; it should be exercised on sound judicial principles. A remand cannot be ordered to enable a party to fill up the lacuna in the case. But where the party was denied an opportunity of producing all the evidence they desired to produce before the Trial Court then the Appellate Court, in exercise of the discretionary powers to further the ends of justice may order remand or re-trial of the case. Order 41, Rule 23-A was introduced in the Code by Amendment Act CIV of 1976. Prior to the enactment of the above amending Act, Courts had held that under Order 41, Rule 23 an order of remand can be passed only on the reversal of the decree disposing of a suit on a preliminary point; and in other cases, where the judgment of the Trial Court is reversed on merits and the case is remanded for re-trial to the Trial Court, it can be done by the Appellate Court only in exercise of its inherent powers under Section 151, Civil Procedure Code. Now under Order 41, Rule 23-A, the whole case can be remitted to the Trial Court where the judgment reversed is not on a preliminary point but one on merits. Thus Order 41, Rule 23-A has widened the power of the Appellate Court to remit the case to the Trial Court for re-trial. But even the power under Order 41, Rule 23-A can be exercised by the Appellate Court only after recording a finding that the judgment and decree of the Trial Court are erroneous and are liable to be reversed or set aside.'
11. After observing that it is a fit case wherein production of the additional evidence as sought for should be allowed to do complete justice to the parties, the Court-below has remanded the matter back to the Court-below for fresh disposal. When the Court-below was of the opinion that production of the survey map is necessary for disposal of the appeal the Court-below ought to have allowed it, taken it on record and proceeded to decide the case on merits taking into consideration the additional evidence also, as the additional evidence sought to be produced was only a document and not oral evidence. Order 41, Rule 28 which prescribes the actual mode of taking additional evidence, reads.
'28. Mode of taking additional evidence:- Whenever 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 Appellant Court.'
(underlining is mine)
The second option exercised by the Court-below was not open to it in the present case as it had not arrived at a finding that the findings recorded by the Trial Court were erroneous and are liable to be set aside.
12. Though in my considered opinion there was absolutely no reason at all for the Court-below to have come to a conclusion that the production of the survey map was required in order to enable it to pronounce judgment or for any other substantial cause, the Court should have, even after reaching such a conclusion, exercised the first option open to it of taking the evidence on record and decided the case on merits rather than remanding the matter to the Trial Court for fresh disposal, as such a course was very much open to it under Order 41, Rule 28 C.P.C.
13. The learned Counsel for the appellant relied on the decision in ABDUL GANI v. DEVI LAL, and contended that an appeal under Order 43 Rule 1 Clause(u) should be heard only on the grounds enumerated in Section 100. The appellant under an appeal under Order 43, Rule 1 Clause (u) is not entitled to agitate question of fact as in a first appeal, the reasoning adopted by the learned judge in the said case for reaching such conclusion as could be gathered from para 12 is as follows:
'It is obvious from Order 43, Rule 1 that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were itself to be treated as a decree and not a mere order.
In these circumstances it is quite safe to adopt that an appeal under Order 43, Rule 1 Clause (u) should be heard only on the grounds enumerated in Section 100. On other considerations also the same conclusion is inescapable. If the preliminary point raises a question of fact it stands certainly adjudicated upon by the Trial Court and the first Appellate Court, and, therefore, on general principles there seems to be no good reason why the ordinary rule regarding second appeals on questions of fact be not applied to such appeals.'
In my considered view, the law laid down as above by the learned Single Judge cannot be supported in law. The ratio decidendi is not based on any legal principle nor does the decision give any reasoning as to why the consideration should be limited only to questions of law that too substantial and not extended to questions of fact. The conclusion has been arrived at on mere supposition as is clear when the Court observed, 'in these circumstances it is quite safe to adopt that an appeal under Order 43 Rule 1 Clause (u) should be heard only on the grounds enumerated in Section 100.' This assumption is incorrect as Order 43, Rule 1 C.P.C. is only an enabling provision for regulating the procedure and prescribing the various orders from which appeal would lie to an higher Court. A rule prescribing the procedure can never be understood in law as circumscribing the powers of the higher Court hearing the matter in appeal unless the rule specifically speaks of it. Where an order of remand is questioned as being improper and uncalled for in an appeal provided against such an order, it would be always open to the Court hearing the appeal to consider all questions, both of fact and law, to determine whether or not the order of remand is right in law. The learned Judge by taking such view of the matter has equated an appeal under Section 100 CPC, hereunder the jurisdiction of the High Court to entertain a second appeal after the 1976 amendment is confined only to such appeals which would involve a substantial question of law, with an appeal under Section 104 CPC where under no such limitation is imposed on the powers of the High Court. That is quite improper. In an appeal from an order of remand preferred under Order 43 Rule 1 Clause (u), the High Court is not confined to the question whether the order satisfies the requirement of the rule. It may also determine the correctness of the lower Appellate Court's decision on the point on which the Trial Court is posed of the case. Thus, where the Trial Court decrees a suit on rejection of the defence of perfection of title by a adverse possession and the Appellate Court reverses the decree and remands the case under this rule, the High Court has the power to determine whether the point of adverse possession was correctly decided on merits by the lower Appellate Court. But the impugned order in the present appeal presents a worse scenario as the Court-below has not considered the case on merits at all before exercising its power of remand under the rule. In my considered view, the decision relied upon by the learned Counsel for the respondent does not lay down the correct law and, therefore, cannot be relied upon.
14. The Court-below has also found fault with the observation of the Trial Court that the plaintiff is in possession of the suit property. According to the Court-below the Trial Court ought not to have passed the decree granting the relief of prohibitory injunction in favour of the plaintiff when the plaintiff was not in possession of the lands at all. The Court-below has completely misdirected itself in this regard. Law allows possessory rights and remedies to persons not in actual possession and it does so not merely by considering them as entitled to possession and its attendant right but by regarding them as being for all legal purposes in possession. Thus, we may find that one who is not actually a possessor is nevertheless considered as such in the eye of law and conversely one who actually has possession may be looked on by law as a non-possessor. The concept of legal possession parts company from the ordinary notion of possession as law tends to invent instances of constructive possession i.e., cases where something less than possession in one person is deemed possession in law, and where conversely the actual possession of some other party is reduced to something less than legal possession (See Salmond's jurisprudence, Chapter 9 paragraph 51). As Salmond has put it pithily, if a man could never be sure that the food before him, the coat on his back and the tool in his hand wilt not be snatched from him by his neighbour, then obviously life in society would be completely impracticable. It is, therefore, that institutionalised protection of right of possession becomes essential and when an aggrieved person knocks on the doors of the judiciary which is saddled with this responsibility, the Courts should not fight shy of protecting his possession or directing the retrieval of possession of a property if he was unlawfully dispossessed of it. The only thing the Court should satisfy itself about is that the person seeking its aid in recouping what was denied to him unlawfully by selfish neighbour, is the actual owner of it. The defendant in the present case has not set up title over the land encroached by him. He only claims that he has perfected his title by adverse possession. The Court-below ought to have examined and answered the issue, whether or not the defendant established his case of adverse possession. It has been held in INDIRA v. ARMUGAM AND ANR, ILR 1998 Kar 1422 (SC) that in a suit for possession of immovable property based on title, once the title is established, unless the defendant proves adverse possession, the plaintiff cannot be non-suited, thus, in my considered opinion there was no need for the Court-below to have resorted to Order 41, Rule 27 for permitting the production of the survey map in evidence as it was not essential either for pronouncing judgment or for any other substantial cause. It is a fit case where a direction has to be issued to the appellate Court to take up the appeal and decide it on merits on the evidence already available on record.
15. In the result for the reasons stated above this appeal is allowed, the judgment and decree of the Court-below is set aside and the Court-below is directed to take up the appeal on its file in its original number and decide it on merits on the evidence already available on record within a period of six months from the date of receipt of this order.
16. This Court has on several occasions noticed that the first Appellate Courts resort to remand of the cases to the Trial Courts on the flimsiest of reasons without reference to the rules governing such remand which practice is deprecable. The Courts should resort to the power of remand selectively and only in cases where it is absolutely necessary and before exercise of power the Courts must realise that indiscriminate resort to the power of remand leads to delay in administration of justice and deprivation of the valuable rights to the party aggrieved. Send a copy of this order to the learned Judge who disposed of the appeal in the Court-below, wherever he is.