1. Miscellaneous Second Appeal No. 37 of 1980 by the defendants is directed against the Judgment and Decree dated 15-11-1979 passed by the Civil Judge, Yadgir in Regular Appeal No. 41 of 1979 setting aside the Judgment decree dated 18-4-1975 passed by the Munsiff, Chittapur, in Original Suit No. 25 of 1973 and remanding it to the Trial Court.
2. Miscellaneous Second Appeal No. 38 of 1980 by the plaintiffs is directed against theJudgment and Decree dated 15-11-1979 passed by the Civil Judge, Yadgir, in Regular Appeal No. 40 of 1979 reversing the Judgment and Decree dated 18-4-1975 passed by the Musiff, Chittapur in Original Suit No. 22 of 1973 and remanding the matter to the Trial Court for fresh disposal.
3. The appellants in both these appeals are the plaintiffs in Original Suit No. 22 of 1973. The Respondent in both the appeals was the defendant in Original Suit No. 22 of 1973 and the plaintiff in Original Suit No. 25 of 1973.
4. The appellants filed Original Suit No. 22 of 1973 for declaration of their ownership in respect of land bearing survey No. 50/1, hissa-1 and also for an injunctionrestraining the Respondent from taking the water of the suit well for irrigation through their land Survey No. 50/1, hissa 1 to his land survey No. 50/3.
5. The Respondent who is the plaintiff in Original Suit No. 25 of 1973, filed the suit for a permanent injunction restraining the defendants from disturbing and interfering with the use and enjoyment of the water of the common well situated in Survey No. 50/1 of Chikalur, during his turn coming on Sunday and Monday every week. According to him, he is the owner of Survey No. 50/3 measuring 25 guntas and also Sy. No. 50/1 hissa No. 2 measuring 2 guntas.
6. Both the suits were resisted.
7. Common evidence was recorded relating to both the suits in Original Suit No. 22 of 1973, but separate Judgments have been written in both the cases. The Munsiff, on appreciation of the evidence decreed Original Suit No. 22 of 1973 and dismissed Original Suit No. 25 of 1973. The Respondent being aggrieved by the Judgments in both the cases, filed Regular Appeal No. 40 of 1979 against theJudgment and Decree in Original Suit No. 22 of 1973 and filed Regular Appeal No. 41 of 1979 against the Judgment and Decree passed in Original Suit No. 25 of 1973. The learned Civil Judge setting aside the Judgments and Decrees passed by the Munsiff in both the suits, remanded both the suits to the Trial Court for fresh disposal according to law, advising the plaintiff to get a Commissioner appointed to find out the location of the well, and to give an opportunity to both sides to lead some more fresh evidence. The appellants in both these appeals, being aggrieved by the said Judgments and Decrees, remanding both the suits, have come up with these two appeals.
8. The appellants examined Gopreddy (one of the plain-tiffs) and two witnesses, Somnath PW. 2 and Shankarappa PW. 3 and marked Exs.P-1 to P-13. The Respondent examined himself as DW. 1 and two more witnesses Devendrappa DW. 2 and Sidramappa DW. 3 and marked Ex.D.1.
9. Thus, it becomes crystal clear that both the parties have led more than sufficient evidence in both the matters. The lower Appellate Court thought that it was necessary to find out the location of the well and hence, it thought that the appointment of the Commissioner would help thedisposal of the points in dispute between the parties. Neither parties had prayed for appointment of the Commissioner, either in the Trial Court or in the first Appellate Court. No application was given by either of the parties either into Munsiff Court as well as in the lower Appellate Court for the appointment of a Commissioner. Even a ground was not made out in the appeal memos that the lower Court erred in not appointing a Commissioner in order to locate the well. That, does not appear to be the line of arguments adopted by both the parties in the lower Appellate Court. The lower Appellate Court itself thought on its own accord that the appointment of a Commissioner would help to locate the situation of the well. Therefore, the lower Appellate Court committed an error in thinking on its own accord that the appointment of a Commissioner was necessary for thedisposal of the points in dispute. This ground made out by the lower Appellate Court for remanding the matter is unsustainable.
10. The second ground made out by the lower Appellate Court for remanding the matter is that the parties should be given an opportunity to lead some more evidence. When the parties themselves did not make a request that they should be given an opportunity to lead some more evidence, the advice given by the lower Appellate Court that they should lead some more evidence, is rather unsustainable. As already stated above, both the parties have led a lot of oral evidence and have produced documents also in support of their cases. When it is so, I do not think that the lower Appellate Court was justified in remanding the matter with a direction to the Trial Court to give an opportunity to both the parties to lead some more evidence.
11. It is not the case made out by either of the parties that the proper issues have not been framed and those framed were incorrect. It is not the case of either of the parties that they were misled by the Judgment of the Trial Court.
12. In Bachan Pandey and others v. Dulhin Janki and others, : 3SCR555 the Supreme Court held as :
'Apart from that, the suit out of which the appeal has arisen was filed as long as January, 1950. The original plaintiffs and defendants had during the period of more than a quarter of century departed. They were now represented by their legal representatives. To remand the suit to the trial court would necessarily have the effect of keeping alive the strife between the parties and prolonging this long drawn litigation by another round of legal battle in the trial court and thereafter in appeal. It is time, that the final curtain is drawn and this long meandering is put to an end to. The Courts should be loath to entertain a plea which would havethe effect of condemning succeeding generation of families to spend major part of their lives in protracted litigation.'
Therefore, the Supreme Court has clearly laid down that the Court should be very loath to remit the matter especially when the parties have been fighting tooth and nail since many years. It has been laid down in Balasubramania Iyer v. Subbiah Thevar and Another, : AIR1965Mad417 as :
'if the trial Court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate Court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial Court is wholly unintelligible orincomprehensible that the appellate Court can remand the suit for a fresh trial. The fact that there are some defects and infirmities in the reasoning of the trial Court is surely not aground for the appellate Court not to do its duty of disposing of the appeal on merits. The appellate Court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial Court without applying its mind as to whether the judgment and the findings of the Trial Court are correct and if not whether it should be reversed or set aside.'
It is further laid down as :-
'Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of protracted trial in the trial Court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the Trial Court.'
O. 41 R. 23 clearly lays down that :-
'Where the Court, from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded'.
Thus, it becomes clear that no order of remand can be made under O.41 R.23 except when the suit has been disposed of on a preliminary issue. There are, however, cases in which suits have not been disposed of on a preliminary point and yet the Courts have been exercising the power to remand the case professing to do so in the exercise of their inherent powers These are cases in which the lower Court has a proper trial or an effectual or complete adjudication of the suit and the party committed an error, omission or irregularity, by reason of which there has not been complaining of such error, omission or irregularity has been materially prejudiced thereby. An order of remand should not be made mechani-cally. An order of remand should not be made merely to give another opportunity to a party which he had failed to do owing to his own negligence. This Court on innumerable occasions has laid down that the remand, without discussing the evidence and without finding out as to whether the findings recorded by the Munsiff are correct or not, is clearly unsustainable in law. In Channamallegowda v. Haliamma, 1972 Mys LJ Sh. No. III., 42 it is stated that :
'An order of remand can be passed only after the Appellate Court comes to a decision on merits that the decision of the Trial Court is unsustainable and it is found necessary in the interest of justice to remand the case. In the present case, the appellate Judge has not given any decision on merits on any of the questions decided by the Trial Court. It is clear that the order of remand is unsustainable.'
Again in Short Note No. 177, Narasimhaiah v. Mahadevaiah in the same volume, it is laid down as :-
'The Appellate Court cannot remand the case unless it considers all the evidence and reaches a conclusion that the judgment and decree under appeal are unsupportable. There is no such finding forth coming in the order impugned. The Civil Judge could not have allowed the application for impleading the supplemental defendants in the appeal when no such application was made before the Trial Court. Even the application for appointment of a commissioner was for the first time made by the plaintiff before the Appellate Court. The Judge has not stated that for the effective disposal of the controversy in question a report from a commissioner is absolutely necessary. In any view of the matter, there-fore, the order under appeal cannot be supported.'
Again in Short Note No. 193, Ramegowda v. Ramaiah in the same volume, it is laid down that :-
'Order of remand under - on the ground to get the boundary dispute determined by Revenue Authorities - is opposed to law.'
Again, the same principle is laid down by this Court in B.M. Chinniah Shetty v. Puttabasappa and Others, 1977(1) KLJ 31.
13. It is the case of the appellants in both the cases that they are the owners of Survey No. 50/1 hissa No. 1. It is not disputed by the respondent in these cases. It is also undisputed that the well in question is situated in survey No. 50/1 hissa No. 2. Therefore, there is no dispute regarding the location of the well at all. After all survey No. 50/1 Hissa No. 2 hardly measures 2 guntas. Therefore, when it is not disputed by either of the parties that the well in question is situated in survey No. 50/1 Hissa 2, I am unable to understand how the lower Appellate Court thought that the location of the well could not be made out at all. I could have understood, if survey No. 50/1 hissa No. 2 is a very large area. But it measures only 2 guntas. Well may have covered a large portion of the entire area itself. Further, it can be seen that the parties have led a lot of oral evidence as well as documentary evidence regarding the points in dispute. Even sketches have been produced by both the parties and it is also undisputed that no request was made by either of the parties before the lower Appellate Court for the appointment of a Commissioner, and no such ground has been made out even in the appeal memos filed before the lower Appellate Court. Therefore, I am really unable to understand as to how the lower Appellate Court felt some doubt regarding the location of the well. The lower Appellate Court further committed an error by stating that the parties should be given an opportunity to lead some more evidence. It was not the request made by either of the parties. Such approach made by the lower Appellate Court is highly opposed to the legal principles.
14. In the case of a remand, it is the duty of the lower-Appellate Court to discuss the entire evidence on record and show that the findings recorded by the Trial Court areerroneous or unsustainable. In this case, even inspite of voluminous evidence available on record, the lower Appellate Court has not discussed the evidence or material on record and has not shown as to how the findings recorded by the Munsiff are erroneous or has not shown that the points in dispute involved in the two suits require further elucidation in the matter. Unless the lower Appellate Court discusses the entire evidence on record and shows that the findings recorded by the Trial Court are erroneous and shows that the reasoning adopted by the Trial Court isincomprehensible or unintelligible, I do not think that the lower Appellate Court has got jurisdiction to remand the matter. Even assuming for a moment that the findings recorded by the Munsiff are erroneous and even assuming for a moment that the Judgment rendered by the Munsiff is unsustainable, still the entire evidence is available to the lower Appellate Court and it is the duty or the first Appellate Court to re-embark upon the re-appreciation of evidence and it is its duty in the light of the principles above laid down to show as to why the matter needs a remand. It owes a duty to the litigants who have spent good deal of time and hugemoney and a part of his or her life over the litigation.
15. Therefore, under these circumstances, the Judgments and Decrees passed by the lower Appellate Court in both the appeals are set-aside. Both the appeals are allowed and both the matters are sent back to the lower Appellate Court for fresh disposal on merits with reference to the material already on record.