R.N. Misra, J.
1. The defendant is in appeal against the reversing decree of the learned Additional District judge, Guttack, in a suit for title, permanent injunction and recovery of damages.
2. The disputed property is locatedin the close vicinity of this Court. Admittedly once upon a time the property belonged to the members of the Basil family of Calcutta. On 22-6-1949, some members of that family sold the property under registered sale deed (Ex. 2) to the Orissa Cotton Mills Limited and under another registered sale deed dated 20th of March, 1963--Ext. 1, the Orissa Cotton Mills Limited sold the property to the plaintiff--the Orissa Co-operative Insurance Society, Limited. The plaintiff-Society filed the suit on 28th of February, 1969, for declaration of title, permanent injunction, recovery of damages and other ancillary reliefs. The subject-matter of the suit was described to be a small room measuring about 11 ft. x 7 ft. along with its walls constituted in and forming a part of the plaintiff's premises on plot No. 2221/3124. The defendant, on the other hand, while denying the plaintiff's claim of title contended that the disputed property was a part of his plot No. 2230. It was further averred that the room had become dilapidated and, therefore, the defendant was reconstructing it and the plaintiff had no cause of action.
3. The learned trial Judge raised several issues. At the trial, a pleader-commissioner was deputed and he was also examined as P. W. 3. His report was exhibited as Ext. 3/b and a sketch-map prepared by him as Ext. 3/c. The learned trial Judge came to hold that the plaintiff had failed to establish that the disputed property formed part of its land. On the other hand, he recorded a categorical finding that the property was a part of the defendant's land as claimed by him. He accordingly dismissed the suit.
4. On appeal, the learned Additional District Judge by the impugned judgment has vacated the judgment and decree of the trial Court and has remanded the matter to the original Court with a directionthat a survey-knowing commissioner be deputed to ascertain whether the disputed room appertains to defendant's plot No. 2230 or is a part of the plaintiff's plot. The direction is in the following words:--
'..... The learned Munsif, after remand, will get one or more commissioners, as the case may be, with knowledge of survey and knowledge and experience in building construction at plaintiff's cost for the purpose of finding out if the suit room stands on or appertains to plot No. 2230 and the points raised by the appellant in their petition for local inspection by Court filed in appeal be sent to the learned Munsif along with the suit record. Upon receipt of the reports of the commissioners and after these are made evidence in suit, the learned Munsif will dispose of the suit afresh according to law in the light of the entire evidence on record after hearing the parties. Parties will not be entitled to lead any fresh evidence after remand, except in so far as it will relate to the reports of the commissioners.'
5. It is fairly well settled that the inherent power under Section 151 of the Code of Civil Procedure is not to be availed for directing a remand. Remand has been provided for under Order 41, Rules 23 and 25 of the Code of Civil Procedure. Mr. Srinivas Misra for the respondent concedes that it is not a remand within the purview of Rule 23. According to him, jurisdiction under Rule 25 has been exercised. Rule 25 of Order 41 of the Code provides:--
'Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor.' While exercising power under Rule 25, thus, there would be no occasion to vacate the decree of the trial Court in its entirety and to remit the entire litigation to the trial Court. Mr. , Misra for the respondent concedes that there was no justification for the lower appellate Court to do so. I must, therefore, hold that the allowing of the appeal, setting aside the judgment and decree of the trial Court and remanding the matter to the trial court for a fresh disposal are not in accordance with the provision of Order 41, Rule 25 of the Code. Consequently, that action of the lower appellate court must be set aside and the appeal has to be maintained in the lower appellatecourt even if a commissioner is to be deputed on the ground that it is necessary for the right decision of the suit upon merits,
6. In paragraph 9 of the plaint, the following averment was made:--
'That the said ante-room, the subject-matter of dispute has been standing within the plaintiff's said premises as a part and parcel of the scheduled properties bound by the old and high compound wall ex facie to the knowledge of the entire world, including that of the defendant. The defendant has never exercised any semblance of right, title, or interest by way of possession or enjoyment over the said room at any time. Nor the defendant has ever before questioned the right, title or authority of the plaintiff or their said predecessors-in-title to possess and enjoy the said room as part and parcel of the said premises. In the circumstances, it can be stated for the sake of argument without making any concession even that the defendant had any semblance of colour of right, title or interest on the said ante-room of the plaintiffs old garage that must have been extinguished by his prolonged acquiescence as against three successive owners by the rules of acquiescence, waiver and estoppel, and by the statute of Limitation allowing the plaintiffs predecessors-in-title to perfect their title on such properties by adverse possession.'
The plaintiff had, therefore, laid claim to the disputed property on the footing that it was a part of the property purchased by it under Ext. 1, Alternately, it laid claim to the property by way of adverse possession. Under issue No. 7, the plaintiffs title to the property was examined. The learned trial Judge came to hold:--
'....... Therefore, taking into consideration the evidence of the pleader commissioner P. W. 3, his report Ext. 3/b and sketch-map Ext. 3/c coupled with the C. S. Map and as there is no mention in the sale deed Ext. 1 about the purchase of the suit ante room, there is no difficulty for me to arrive at a conclusion that the ante room appertains to defendant's plot No. 2230 and not 2221 or 3124 of the plaintiff. In view of the reasons, I must hold that the title of the suit ante room vests with the defendant who has got title in respect of the suit room in preference to the plaintiff who has failed to prove his title over the suit ante room on the basis of the sale deed. ..........'
Under issue No. 6, the trial Court examined the plaintiff's claim of possession by itself and its predecessor-in-interest. The learned trial Judge negatived such claim in the concluding portion of paragraph 6 of his judgment by saying:--
'...... I am of the view that theplaintiff has not only (not) established his title over the suit ante room but also has failed to prove his possession or that of the Orissa Cotton Mills in respect of the suitante room 12 years preceding the filing oi the suit. ......'
The lower appellate Court was moved by two separate applications by the plaintiff-appellant to make a local inspection or to appoint a survey-knowing commissioner to visit the spot. The learned appellate Judge took the view that what was necessary to be looked into at the spot was more within the province of a person having knowledge and experience in construction matters and, therefore, thought it appropriate to utilise the services of a survey-knowing commissioner. The survey-knowing commissioner, as Mr. A. B. Misra for the appellant submits, would not have much of experience in construction matters. Yet, within the frame-work of the litigation his services may be useful for clarification of the points arising for determination. I would not, therefore, interfere with the direction of the lower appellate Court so far as the survey-knowing commissioner has been required to be appointed. The learned appellate Judge, however, seems to be of the view that more than one Commissioner may be appointed. That is why towards the end of paragraph 9 of his judgment, he has referred to 'commissioners'. This might lead to confusion in the trial Court. I would accordingly clarify that only one survey-knowing commissioner has to be appointed.
7. The appeal is allowed, the judgment remanding the litigation to the trial Court is vacated and the title appeal No. 106 of 1971 be continued to be on the file of the appellate Court. The learned Munsif shall take steps to have a survey-knowing commissioner appointed. It shall be open to the parries to obtain an order either from the appellate Court or from the trial Court as to what points would be referred to the commissioner for his investigation. After the report is received, the parties shall be free to file objections thereto if they so desire and lead any evidence to rebut or support the report of the commissioner. The learned trial Judge is not permitted to receive evidence on any other point. The report of the learned Munsif along with the commissioner's records shall be sent to the appellate Court within a period of four months from today, whereafter the lower appellate Court shall proceed to dispose of the appeal in accordance with law. Costs shall abide the event.