T. Chandrasekhara Menon, J.
1. The appellant herein is the plaintiff in a suit for declaration of his title to the plaint schedule property and for consequential injunction to restrain the defendant from executing the decree in O. S. No. 133 of 1120 on the file of the Munsiff of Irinjalakuda. The facts of the case are as follows:--
One Ithappanose examined as P. W. 4 in the case was the original owner of the property. In 1106 he mortgaged the property to Chalakudy Bank. The defendant was the then manager of the Bank. Ithapanose and his two sons partitioned the plaint property. In spite of the partition, the patta of the property continued in the name of Ithapanose. For arrears of revenue the plaint schedule property was sold under the Cochin Revenue Recovery Act. It was purchased by the defendant. According to the plaintiff, the revenue sale was invalid in law and the defendant never got possession as per the sale sannad. Plaintiff obtained an assignment of the property from Ithappanose and his two sons under Exts. P-2, P-2 (a) and P-2 (b) which are dated 8-2-1119, 12-2-1119 and 12-2-1119 respectively. The defendant on the other hand would contend that he got delivery of the property in enforcement of the sale sannad. Then he is said to have leased the eastern portion of the property to the plaintiff on an annual rental of 28 parss of paddy and western portion to one Kunjuvareed on an annual rent of 22 paras of paddy. The defendant would further contend that as the two lessees kept the rent payable under their engagements in arrears, he caused his lawyer to issue notices to plaintiff and Kunjuvareed. Plaintiff did not reply to the notice while Kunjuvareed is said to have sent a reply admitting the lease but claiming a reduction in the rent. Then, according to the defendant on the basis of some compromise talks the lessees were jointly cultivating the entire property on a consolidated rent of 50 paras of paddy and they were holding the property together. Though he was said to have been paid the rent in 1116, subsequently when default was made the defendant filed a suit O. S. No. 133 of 1120 of the Irinjalakuda Munsiffs Court against the plaintiff and Kunjuvareed for recovery of arrears of rent. There, the defendants viz., the present plaintiff and Kunjuvareed filed written statements that the defendant has got neither a valid title nor possession over the plaint property pursuant to the revenue sale and there is no lease as alleged. In the circumstances the present defendant amended the plaint seeking recovery on the basis of title.
2. The plaintiff has got a case that following the notice issued to him by the defendant claiming arrears of rent, the defendant approached the plaintiff and represented to him that if the plaintiff and Kunjuvareed would concede an oral lease from the defendant, he could make up the lack of possession by him under the sale sannad, and that therefore the plaintiff need not issue a reply to his notice. He was also told that Kunjuvareed was also being prevailed upon to send consent reply and that in such event the defendant after completing his title would sell the property in favour of the plaintiff It is alleged, believing the defendant, the plaintiff did not send a reply to notice and Kunjuvareed sent a reply as wanted by the defendant
3. The suit -- O. S. No. 133 of 1120 was dismissed by the trial court holding not only that the lease set up by the defendant was not true but also that the basis of his title the revenue sale was a void one conferring no valid title on the defendant. This decision was confirmed by the appellate court, the Anjikaimal District Court. But on Second Appeal, the Travancore-Cochin High Court set aside the decision of the lower court and decreed the suit for arrears of rent upholding the lease on which the present defendant had laid claim in his suit.
4. The plaintiff contends that the decree passed finally in O. S. No. 133 of 1120 is vitiated by fraud and hence void and unenforceable against the plaintiff. The decree therein, it is contended can neither affect the, plaintiff nor his right of ownership over the plaint property. His possession is said to be based on his own right on the sale deeds executed by Ithappanose and his sons- It is also pointed out that apart from the fact that the decree In the earlier suit is vitiated by fraud, the Travancore-Cochin High Court had also specifically left open the Question of title. It is on these allegations the present suit was filed.
4-A. In the first instance the suit was dismissed by the trial court and the lower appellate court confirmed the dismissal. The decision was mainly based on the ground that the plaintiff cannot reagitate the same question which had been concluded by the decision of the Travancore-Cochin High Court in Exts. P-9 and P-11 -- decree and judgment in S. A. No. 932 of 1952 which Second Appeal arose out of O. S. No. 133 of 1120. How ever, when the plaintiff took up the matter in Second Appeal to this Court, this court did not agree with the courts below. The concurrent decisions of the lower courts were set aside. This court held that the question of the landlord's title had not been settled by the earlier decision and the lower courts should have approached the questions in issue in the present suit independent of the judgment of the Travancore Cochin High Court's decision in S. A. No. 923 of 1952. The case was remanded to the trial court for fresh disposal.
5. After remand the trial court held that the plaintiff has established independent and subsisting title and possession over the plaint properties and the defendant never had any valid title or possession nor has he any subsisting title to the property, and therefore, it was held that Ext, P-9 decree is held void and unenforceable against the plaintiff and his rights. On appeal, the learned Subordinate Judge set aside the Munsiff's decision and dismissed the suit and the same was confirmed in Second Appeal. The plaintiff was however granted leave to appeal under Section 5 of the Kerala High Court Act and that is how the matter has come before us.
6. The learned Judge who heard the Second Appeal has said 'in order to set aside a decree passed by a court on the ground of fraud, there must be positive proof that the other party had intentionally contrived to keep the opposite party in ignorance of the real state of affairs and that by reason of fraud a wrong decision has been obtained'. According to the Judge, the plaint does not contain any specific allegation of an actual positive fraud which could justify as inference that the decree was obtained by misrepresentation and fraud practised on the court. The plaintiff's case, according to the learned Judge, appears to be that the defendant had persuaded him not to send any reply to the notice sent for claiming arrears of rent and that it was because of this no reply had been sent- The Judge then points out that this was the very plea taken by the present plaintiff in 6. S. No. 133 of 1120 and the fact that the suit had been decreed against him shows that it had not been accepted. Therefore, it is said that it is not open to the plaintiff to allege the same ground to prove fraud and to seek to set aside the decree passed by the High Court of Travancore-Cochin. The Court hence pointed out that the lower appellate court was fully justified in coming to the conclusion that the plaintiff had failed in proving fraud in the passing of the judgment and decree in Second Appeal. On these, the court concludes that the result is that the decision that from 1117 onwards the suit property was in the possession of the plaintiff and the legal heirs of Kunjuvareed under the oral lease put forward by the defendant is binding on the plaintiff and he cannot now be heard to say that his possession is not traceable to the oral lease. The court then stated 'I am afraid that it is futile now for the plaintiff to attack the validity and truth of the oral lease in view of the specific finding of the Travancore-Cochin High Court in S A. No. 923 of 1952 that the oral lease is true. It is unnecessary in my opinion to go into an enquiry regarding the truth or otherwise of the oral lease in this case,'
7. Then proceeding to the contention raised by the appellant that the defendant has not derived any valid title is the purchaser in revenue sale evidenced by the sannad Ext. D-2, the learned Judge pointed out that the Chalakudi Bank filed O. S. No. 656 of 1117 in the Irinialakuda Munsiff's Court for enforcing the mortgage. As stated earlier, Ithappanose had mortgaged the property to Chalakudi Bank before the partition evidenced by Ext. P-10. Ithappanose and his two sons were parties to the suit as also the present defendant. The defendant had purchased the property in revenue sale by that time and that was the reason why he was made a party to the suit. Chalakudi Bank had a charge on the properties and consequently the question arose whether the present defendant was entitled to priority by reason of his purchase in revenue sale. The defendant's contention was upheld and he was declared entitled to have his rights reserved as he was the revenue auction-purchaser. The learned Judge stressed the fact that this finding stands recorded in a suit to which Ithappanose and his sons were parties. The assignments were taken by the plaintiff during the pendency of O. S. No. 656 of 1117. Therefore the court says that the plaintiff cannot now be heard to say that the decision in that suit is not binding on him. Even if it is not res judicata that, decision is said to be a very strong piece of evidence to show that the plaintiff's assignors did not dispute the validity of the revenue auction-purchase by the present defendant. The plaintiff having purchased the rights of Ithappanose and his sons during the pendency of the suit is, by the principle of lis pendens, bound by the decision in that suit. Moreover, in the written statement filed by the present plaintiff, who was the first defendant :n O. S. No. 133 of 1120, is said, it is clearly admitted that the property had been sold for revenue arrears and purchased by the defendant. The learned Judge refers to a notice sent by the defendant to the plaintiff and Kunjuvareed, Exts. D-6 and D-6 (a), to which Kunjuvareed alone sent a reply Ext. D-7 which admits the validity of the revenue purchase.
8. Next, the learned Judge considered the question raised by the appellant that no delivery has been taken in execution of the sale certificate and as such the rights, if any, obtained under thy sale certificate have been lost. On that the learned Judge says that the decision in S. A. No. 923 of 1952 would, in effect, be a bar to the plaintiff's contentions as the decision is binding on him. It might be noted here that the learned Judge agreed with the learned counsel for the appellant that the lower appellate court was wrong in relying on Ext. D-4 report of the Village Officer stating that the suit property had been delivered to the defendant in enforcement of the sale certificate Ext. D-2. The learned Judge held that the evidence of the Village Officer is not entitled to any weight in the absence of delivery receipt. Therefore the learned Judge excluded the evidence afforded by Ext. D-4 and the testimony of the Village Officer. But nevertheless, the court on the basis pf the conduct of the plaintiff and Kunjuvareed as seen from the Suit O. S. No. 133 of 1120 and also from the decision in the Second Appeal 923 of 1952, came to the conclusion that the plaintiff had no title over the plaint property.
9. Mr. Manuel T. Paikaday, strongly urged before us that the learned Judge has started with a basic misconception as to the very nature and scope of the appellant's suit. The suit was one for a declaration that the defendant has not nor had any lawful title, rights or interests in the plaint schedule property against the plaintiff who holds his title and possession. Therefore, the plaintiff contends that the alleged lease by defendant founded on such non-existent title, and all rights and obligations claimed thereunder, are all ab initio null and void and unenforceable. According to the counsel, the learned Judge fell into error in thinking that the first and most important question urged by the appellant was a question of fraud played by defendant in obtaining the Travancore-Cochin High Court judgment, and its validity. The real question that is to be considered by the court, according to Mr. paikaday was the scope and effect of the specific direction in the Remand Order that 'the court will re-consider the case ............ independently and apart from the decision of the Travancore-Cochin High Court in S. A. No. 923 of 1952. It is therefore pressed that the remand order could only mean that the judgment of the Travancore-Cochin High Court must not be regarded or relied upon for any purpose in this case and no question of its 'binding' force or 'validity' or 'setting aside' etc., arose any more for consideration in this case. The learned counsel also points out that in the remand order, there is a definite and conclusive finding recorded namely, that there is no proof in this case that the appellant entered into possession admitting the landlord's title, and therefore the landlord cannot take shelter behind Section 116 of the Evidence Act. Therefore, it is urged, no question relating plaintiff's possession to any presumed lease or attornment to defendant can lawfully arise. And on the evidence on record defendant had failed to prove his alleged lease. The suit had hence to be decreed- Mr. Paikaday stresses on the fact of the finding of plaintiff's independent possession in the remand order and contends that his such possession together with that of his predecessor-in-title established full title in the plaintiff by prescription, even if he had no other title and extinguished defendant's title, if he had any at all by the operation of Section 23 of the then Limitation Act (Section 27 of the present Limitation Act).
10. Unfortunately in this appea there was no appearance for the respondent-defendant. After hearing the arguments of the learned counsel for the appellant and going through the records carefully we are afraid that the Judgment of the learned Single Judge in Second Appeal is unsustainable on the facts and circumstances of the case. In this connection we would first refer to the order of remand made in S. A. No 272 of 1961. We are referring to the same because an order of remand as regards the court passing the order is conclusive on all points decided thereby and they cannot be reopened in that court in appeal from the decision of the lower court on remand. An order of remand, if not appealed against becomes final. See AIR 1941 Mad 530, 531 and ILR (19621 1 Ker 205. On a consideration of a number of decisions on the question including two decisions of the Privy Council reported in Rahimbhoy Hibibhoy v. Turner, (1891) 18 Ind App 6 (PC) and Musher Husein v. Bodha Bibi, (1895) 22 Ind App 1 (PC). A Division Bench of the Patna High Court, in Sunder Ahir v. Phuljharia, AIR 1957 Pat 534, consisting of Ramaswami. C. J. and Raj Kishore Prasad, J., laid down the following guiding principles with respect to finality of matters decided by order of remand and the power of the court of appeal to go behind its earlier decisions. If a High Court remands a case to the lower court, the matters finally disposed of by the order of remand cannot, any of them, be re-opened, when the case comes back from the lower court, but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect or it, it is open to another Bench, a court of co-ordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and. (2) that even in a case, decided by the first court of appeal other than a case, decided by the High Court, if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again from the judgment after remand, because such a court is a court of co-ordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his predecessor before remand.
11. The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out, if, by the order of remand, the Judge on appeal has remanded the suit for determination of all the points at issue, or, it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiffs' suit itself, in which case the decree of the first court has to be set aside, and, the suit remitted to the court below for a fresh decision of the case according to law.
12. Another Bench of the Patna High Court, wherein also Chief Justice Ramaswami was a party, stated in Lalbati v. Satchitanand, AIR 1960 Pat 418, that if the High Court in Second Appeal remands a case to the lower court the matters finally disposed of by the order of remand cannot be reopened when the case comes back from the lower court on the principle of constructive res judicata.
13. Let us apply the above principles to the present case. The order of remand stated--
'From a perusal of the recitals in the plaint and the prayers therein, it is apparent that the suit was not merely for setting aside the decision of the Travancore-Cochin High Court. The suit was for declaring the title of the appellant and for other incidental reliefs. The contention urged before me by the respondent's counsel is that the decision evidenced by Ext. P-11 concludes the question in the affirmative whether the appellant was a tenant under the resoondent. The counsel proceeds that if that is the effect of Ext. P-11, then Section 116 of the Evidence Act will estop the appellant from questioning the title of the respondent.
I do not think this contention is good in this case. The appellant had questioned the respondent's title even in the earlier suit. He had further alleged a reason for his remaining silent when the registered notice was sent to him. The lower courts had also considered those things; but the High Court did not even advert to those facts when it disposed of the second appeal. The judgment of the High Court was based on the one hand on the sole fact that the appellant remained silent when the respondent sent the registered notice claiming arrears of rent. With due respect to the learned Judges who constituted the Division Bench, I may say that whatever might be the effect of that judgment, it cannot debar or estop the appellant from agitating the question of title. no court has considered that question till now excepting the lower courts in the earlier case, whose decision was in favour of the appellant. In fact, the Division Bench itself said that it was not considering the question of title. Therefore, it is too much to hold that the question of title was also concluded by the solitary circumstance, for which the appellant had an explanation, which was not even noticed by the High Court.
In view of this conclusion, I do not think it is necessary to refer to the decisions brought to my notice by the counsel of the respondent on the question that a tenant, who has come into possession of property under a landlord, cannot thereafter question the landlord's title at the time of the tenant's entering possession. The proposition is too well known. There is no proof in this case that the appellant entered into possession admitting the landlord's title. Therefore, the landlord cannot take shelter behind Section 116 of the Evidence Act.
In this view, I set aside the decision of the lower courts and remand the case tp the trial court for fresh disposal in the light of this judgment. The trial court will reconsider the case on the evidence already on record independently and apart from the decision of the Travancore-Cochin High Court in S. A. No, 923 of 1952- The respondent will pay the costs of the appellant in this court and in the first appellate court. The costs of the trial court will be provided in the decree that will be passed ultimately by the trial court. ............'
(Underlining is ours).
14. Two things are settled by the order of remand. (1) That the appellant did not enter into possession of the properly admitting the landlord's title. That was why the court said that the landlord cannot take shelter behind Section 116 of the Evidence Act. (2) After remand the court has to reconsider the case on the evidence already on record independently and apart from the decision of the Travancore-Cochin High Court in S A. No. 923 of 1952, Therefore the Subordinate Judge went astray in deciding the question on the basis of the decision of the Travancore-Cochin High Court. The learned Single Judge who heard the Second Appeal also erred in holding that by the decision in S. A. No. 923 of 1952 of the Travancore-Cochin High Court that the oral lease put forward by the defeadant has been proved would lead to the natural corollary that it is not open to the present plaintiff now to contend that the defendant by reason of his not taking delivery after the revenue auction has lost title to the property, and that the course to conduct of the plaintiff and Kunjuvareed as seen from the suit O. S. No. 133 of 1120 is positive proof that they had attorned to the defendant and were keeping open the property under the oral lease granted by the defendant. This is clearly against the finding in the remand order that there is no proof in the case that the appellant entered into possession admitting the landlord's title and also against the direction given by the court that the trial court has to reconsider the case on the evidence already on record independently and apart from the decision of the Travancore-Cochin High Court in S. A. No. 923 of 1952. It may be noted here that apart from the decision of the Travancore-Cochin High Court the learned Single Judge was not inclined to accept the evidence adduced in this case on behalf of defendant in regard to delivery of property to him, We may quote the following observation of the learned Judge-
'I, however, agree with the learned counsel for the appellant that the lower appellate court was wrong in relying on Ext. D-4 report of the Village Officer stating that the suit property had been delivered to the defendant in enforcement of the sale certificate, Ext. D-2. No delivery receipt has been produced and the evidence of the Village Officer is not en-tilled to any weight in the absence of delivery receipt. I would therefore exclude the evidence afforded by Ext. D4 and the testimony of the Village Officer'.
Therefore we have to take it that there is no reliable evidence in the case of the property having been delivered over to the defendant in enforcement of his sale certificate. And as concluded by the order remanding the case the possession cannot be related to the alleged lease granted by the defendant. If that be so, the rights, if any. obtained by the defendant under the sale certificate Ext. D-2 granting it to be absolutely valid has been lost by adverse possession and limitation. The inevitable result of the finding of plaintiff's independent possession is that his possession together with that of his predecessors-in-title viz., Ithappanose and his two sons established full title in the plaintiff by prescription, even if, he had no other title and extinguished defendant's title, if he had any at all. Therefore, the plaintiff is entitled to get a decree as prayed for by him. We, therefore, allow this appeal, however, in the circumstances of the case we make no order as to costs.