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Kaluvaroya Pillai and ors. Vs. Ganesa Pandithan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 276, 294 to 298 of 1964
Judge
Reported inAIR1969Mad248
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100, 101 and 105(2) - Order 41, Rule 23 - Order 43, Rule 1
AppellantKaluvaroya Pillai and ors.
RespondentGanesa Pandithan and ors.
Appellant AdvocateR. Gopalaswamy Iyengar and ;S. Desikan, Advs.
Respondent AdvocateK. Parasaran, Adv.
Cases ReferredSee State of Madras v. Sulaika Beeviammal
Excerpt:
.....and order 41 rule 23 and order 43 rule 1 of code of civil procedure, 1908 - appellate court can remand suit under two circumstances - firstly when trial court disposed of suit upon preliminary point which is not necessarily preliminary issue and decree reversed in appeal - secondly when appellate court reverses or set aside decree under appeal considers it necessary in interest of justice to remand case - appellate court has right in interest of justice to remand case for re-examination and re-adjudication on such issues which according to appellate court have not been correctly and properly appreciated by trial court. - - the correctness of an order of remand has to be treated distinctly and separately. the first appellate court reversed this finding and remanded the suit for..........in those civil miscellaneous appeals. in all the suits the respondents claimed that the suit lands were pannai lands and therefore they had domain over the same and that the appellants are bound to recognise such right in them as iruwaram-dars and liable to pay rent therefor. both the courts below found concurrently that the lands situate in the village of karun-gulam is a pre-settlement dharmasanam grant which were iruwaram pannai lands of the respondents. on an examination of the oral and documentary evidence, the courts below found that the suit lands are such lands of the respondents. they also found that the respondents collected swamibogam in respect of the suit lands which by itself is an important circumstance indicating that the lands in question are private lands......
Judgment:

Ramaprasada Rao, J.

1. The above batch of civil miscellaneous appeals are against the order of the Subordinate Judge, Ra-manathapuram in A. S. 151 of 1963, 27 of 1959 and 29 to 32 of 1959, whereunder he modified the judgment and decree of the District Munsif, Ramanathapuram, in the Original suits tried by the latter, and remanded the same on a particular aspect. The appeals before the lower Appellate Court were all connected and filed by the appellants against the respondents in those civil miscellaneous appeals. In all the suits the respondents claimed that the suit lands were pannai lands and therefore they had domain over the same and that the appellants are bound to recognise such right in them as iruwaram-dars and liable to pay rent therefor. Both the Courts below found concurrently that the lands situate in the village of Karun-gulam is a pre-settlement dharmasanam grant which were iruwaram pannai lands of the respondents. On an examination of the oral and documentary evidence, the Courts below found that the suit lands are such lands of the respondents. They also found that the respondents collected swamibogam in respect of the suit lands which by itself is an important circumstance indicating that the lands in question are private lands. The learned District Munsif, however, found that the appellants were the tenants of the respondents. But the lower Appellate Court came to a different conclusion and held that the evidence on record was not sufficient to make out a case of tenancy of the appellants in the respective suit lands under the respondents.

The learned Subordinate Judge, there-lore, having come to a different conclusion from that of the learned District Munsif that the respondents are not entitled to arrears of rent from the appellants came to the conclusion that the appellants were in any event liable to pay to the respondents mesne profits in view of their admitted possession of the lands during the fasli or fash's in question. He, therefore, remanded the suits to the trial Court for the limited purpose of determining the quantum of mesne profits payable to the respondents by the appellants. He also gave a direction that the respondents will have the liberty to suitably amend the plaint so as to secure such mesne profits as and when reckoned by the trial Court, The result of the order of remand is that he confirmed the findings as regards the character of the lands and the right of the respondents to own and possess them as iruwaram pannai lands, but remitted the suit for a further enquiry as to the ascertainment and quantification of the mesne profits to which the respondents would be entitled to by reason of the occupation of such pannal lands by the appellants. As against this order of remand the present batch of civil miscellaneous appeals are filed.

2. C. M. A. No. 276 of 1964 is also an appeal against an order of remand and by consent this was also heard along with the above batch of civil miscellaneous appeals. In this case, the lower Appellate Court remanded the suit for a fresh enquiry, because the learned District Munsif in that suit did not frame an issue about the release, which release was pleaded in the plaint, and because of certain other important circumstances attendant with the trial of the suit. He also framed two issues and set aside the decree of the trial Court in full and practically directed a retrial of the suit. As against this order of remand this civil miscellaneous appeal was filed.

3. The main legal contentions addressed before me revolve on the question whether in an appeal against an order of remand, the appellant can canvass all the findings of fact arrived at by the appellate Court or whether the findings of fact relating to and circumscribing the order of remand only could be agitated therein.

4. Before considering the arguments of the learned Counsel for appellants, it is easy to dispose of C, M. A. No. 276 of 1964. Though this is a case in which the lower appellate Court remanded the suit, it appears to me that the totality of the suit has been remanded to the trial Court for reconsideration in view of certain irregularities inhered therein. As a matter of fact the lower appellate court set aside the judgment and decree of the trial Court in full. Though it gave a liberty to the respondents to have a retrial in the trial Court, presumably, in the interests of justice, it appears to me that the lower appellate Court has substituted its own judgment to that of the trial Court and in the peculiar circumstances of the present case it is not open to the appellants in this civil miscellaneous appeal to canvass the entire judgment and decree of the lower appellate Court by filing an appeal under Order XLIII, Rule 1 (u), C. P. C. I shall presently advert to the right of an appellant in a civil miscellaneous appeal to canvass the correctness of the findings other than those relating to the order of remand in such an appeal. But in so far as this appeal is concerned, as there has been a substitution of the judgment and decree of the appellate Court to that of the trial Court, the only remedy available to the appellants in this case was to file a second appeal, if they were so advised, and not to file an appeal under Order XLIII, Rule 1 (u), C. P. C. Thus in the peculiar circumstances and on the facts of this case, it is not open to the appellants to canvass the other findings of the lower appellate Court.

5. The main arguments addressed in the batch of appeals relate to the scope of a civil miscellaneous appeal under Order XLIII, Rule 1(u), C. P. C. The relevant provisions in the Civil Procedure Code which have a bearing on the question are Order XLI, Rule 23, Order XLIII, Rule 1(u) and Sections 104 and 105. Order XLIII concerns itself with appeals from orders and Rule 1 (u) provides that an appeal shall lie under Section 104 as against an order under Rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the appellate Court. Order XLI, Rule 23 reads as follows--

'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, or where the appellate Court in reversing or setting side the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand'.

Analysing Order XLI, Rule 23, the appellate Court can remand a suit under two circumstances -- (a) if the trial Court has disposed of the suit upon a preliminary point which is not necessarily a preliminary issue, and the decree is reversed in appeal; and (b) when the appellate Court reverses or sets aside the decree under appeal considers it necessary in the interests of justice to remand the case. Order XLIII, Rule 1 (u) provides for an appeal against such an order under Order XLI, Rule 23. In fact, Section 104 enables the preferment of such an appeal as it is one which is otherwise expressly provided for in the body of the Code.

6. Order XLI, Rule 23, C. P. Code as it reads now, was introduced in Madras in 1930. The provisions which are apposite in the old Code which have a bearing on orders of remand are Sections 562 and 588.

7. On a prima facie reading of the relevant provisions relating to appeal against orders, it is clear that in such appeals against orders of remand, the Court which has seisin of such an appeal can probe into the legality, propriety and regularity of the facts and circumstances attendant on and revolving upon the order of remand as such and cannot enter into or delve deep into a discussion regarding the findings which are unconnected with and alien to the order of remand. The appellate Court has the right to differ or confirm the findings on certain issues arising in the suit if the appellate court so confirms some amongst various findings of the trial Court, but finds itself unable to concur with the other findings of fact in relation to other issues tried by the trial Court, then under Order XLI, Rule 23, C. P. C. the appellate Court has the right in the interests of justice to remand the case for a re-examination and re-adjudication on such issues which according to the appellate Court have not been correctly and properly appreciated by the trial Court.

As already stated, Order XLI, Rule 23, C. P. C. provides two contingencies which would enable an appellate Court to remand a suit. If the trial Court decided on a preliminary point and if the said decision is reversed by the appellate Court, it could, under the powers vested as above, remand the case for a fresh trial. This is not however, the case in this batch of appeals. We are here concerned with the other contingency expressly provided for in Order XLI, Rule 23, C. P. C. This is a case where the lower appellate Court agreed with the trial Court on its findings on some of the issues, but reversed or found unable to accept the findings of the trial Court on some other issues raised in the case, and therefore considered it necessary, in the interests of justice, to remand the case. The phrase 'considers it necessary in the interests of justice' is of very wide connotation and vests in the appellate Court a discretion to do so. Such discretion, unless perversely exercised, cannot be lightly interfered with in an appeal against the order of remand. It therefore appears to me that the only reasonable interpretation that could be put on the provisions relating to appeals against orders, after collectively understanding the provisions quoted above, is that the appellate Court hearing of an appeal against an order of remand can and should advert itself to such of those findings on the point upon which the order of remand has been made. That this is the view that has to be taken is fortified by the embargo put upon a litigant under Section 105(2), C. P. C. who fails to prefer an appeal against an order of remand in time.

Section 105(2) postulates that where any party aggrieved by an order of remand from which an appeal lies docs not appeal therefrom he shall thereafter ba precluded from disputing its correctness. The correctness of an order of remand has to be treated distinctly and separately. Whilst, therefore, considering its correctness, propriety or regularity, the correctness of ancillary, incidental or connected issues cannot be gone into in a civil miscellaneous appeal against such an order of remand. An appeal against an order of remand is self-contained. An order of remand generally is based on certain facts. It is such facts which could be canvassed in an appeal against that order. Therefore, if the appellate Court, while reversing a judgment of the trial Court on some issues which in the interests of justice necessitates a remand, it is only such facts, conclusions and decisions which have a bearing on the order of remand that could be canvassed in an appeal against such an order.

8. At this stage it is convenient to consider the case law relating to the subject The earliest case under the old Code is that reported in Badam v. Imrat I.L.R.(1881) All 675. That was a case in which the trial Court disposed of the case on a preliminary point as to limitation. The first appellate Court reversed this finding and remanded the suit for fresh trial The High Court, on appeal, held, by a majority that--

'That object would be defeated if the appellant were restricted in pleading that the remand had been made contrary to the provisions of Section 562 of the Civil Procedure Code, and forbidden to urge the more vital and radical objection to the Correctness of the adjudication on the preliminary point.'

Following the above, a Full Bench of the Bombay High Court in Bhau Bala V. Bapaji Bapuji, I.L.R.(1890) Bom 14 was of the view that in an appeal against an order of remand 'the correctness of the remand order, in all legal respects 'was before the High Court for adjudication.' With great respect, the words 'in all legal respects' appearing in the judgment were never meant, in my opinion, to be literally understood, so as to comprehend an adjudication on merits unconnected with the order of remand. In Sankaran v. Raman Kutti, I.L.R.(1897) Mad 152, this Court approved the ratio in I.L.R.(1881) All 675. In Seshamma v. Kuppanaiyangar : AIR1926Mad475 , the facts are that a preliminary point was decided by the trial Court, which decision was reversed in appeal and the case was remanded for trial of the other issues. Ven-katasubba Rao and Madhavan Nair, JJ., observed--

'Although the appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal.'

Though the question in the present batch of appeals did not arise as such, there is sufficient indication here that the finding on facts relevant for the decision of the first appellate Court to remand the suit, can be canvassed in an appeal against such an order.

9. The more apposite case which has settled the apparent controversy is Jainu-labideen Marakayar v. Habibulla Sahib : AIR1928Mad430 . There the Division Bench observed:

'To accede to the appellant's contention would be practically to convert the appeal from the order of remand into an appeal from the decree itself, because if the appellants are to be allowed to raise points decided against them by the lower appellate Court in order to sustain the decree of the Court of first instance, the respondents also must equally be permitted to contest the findings of the appellate Court against them, in order to sustain the decree of the lower appellate Court. In our opinion such a procedure is altogether unwarranted.....'

This was approved by a Full Bench of our Court in Secretary of State v. A. Jagannadham. AIR 1941 Mad 530 . Vis-wanatha Sastry. J., in Kanakayya v. Lakshmayya. : AIR1951Mad218 , clinches the subject by observing--

'An order of remand has an independent existence and is not submerged or dissolved in the final decree. A separate right of appeal is provided against such an order. Not only, is a right of appeal provided bv Order 43, Rule 1, Clause (u) but an obligation is cast by Section 105(2). C. P. Code, upon a person dissatisfied with an order of remand to appoal against it on pain of losing his right to object to the propriety or the correctness of the order or the findings on which it is based in the later stages of the litigation.'

It is significant to note that according to the learned Judge 'the propriety or the correctness of the order of the findings on which it is based' can only be canvassed in an appeal under Order XLIII. Rule 1 (u), C. P. C. This was approved later by a Division Bench of our Court in Venkatarama Iyer v. Unnamalal Animal. ILR 1951 Mad 835 A1R 1951 Mad 883 . We need not multiply further authorities. All the case law starting from I.L.R.(1881) All 675 is one way. In my view. It is now well settled that a litigant in order to avoid the prescribed statutory bar in Section 105(2), C. P. C., can and indeed ought to file an appeal: against an order of remand, but the only limitation in the conspectus of the ratio of the decisions cited is that in such an appeal under Order XLIII, Rule 1 (u), C. P. C. he can agitate not only the lega-lity or propriety of the order of remand, but also the findings of fact attendant upon the remit order.

10. Learned Counsel for the appellants seriously contended before me however that in such a civil miscellaneous appeal, the findings of fact other than those relating to the order of remand, could be pressed into service. In the view that 1 have held, it is not necessary to consider them. If it could be gone into, it should be as if this Court were hearing a second appeal. See : AIR1926Mad475 .

11. Even otherwise, in C. M. A. 294 to 298 of 1964, both the Courts below concurrently found that the respondents are iruwaramdars, who had the benefit of Swamibogam and were dealing with the property in their own right in othis and sale deeds. The estate in question is admitted to be a post-1936 estate. According to the well-known decisions rendered by our Courts in Periannan v. A. S. Amman Kovil, : AIR1952Mad323 (FB) and Govindaswamy Naidu v. Tanjore Palace Devastanam : (1956)2MLJ260 , even in the case of a whole mam village becoming an estate under Act XVIII of 1936 there can be private lands which are domain or home farm lands of the land-holder. The mere fact that the land-holder is an absolute land-holder is not decisive -- See State of Madras v. Sulaika Beeviammal, : AIR1960Mad81 . In dealing with pannai lands which became an estate by virtue of the 1936 Amendment Act, Srinivasan, J., in Ramachandra Chet-tiar v. Karuppiah, (1964) 77 MLW 32 , observed--

'In so far as pannai lands are concerned, it is not necessary that the land-holder should establish continuous cultivation, for the lands were undoubtedly at their inception one in which the land-holder held both the rights. In such an event, what has to be shown is something of a negative nature, that is to say, that no other person had been conferred with occupancy rights therein. That would he already indicated by such acts as dealing with the property.'

In the instance case, even the presumption arising under Section 185 of the Madras Estates Land Act, 1908, is favourable to the respondents and found to be so having regard to the othis and other dealings had by the respondents. Ven-katadri, J., in W. P. Nos. 1316 and 1317 of 1963 and 135 to 145 and 928 of 1965 (Mad), following the well-known decision of this Court, observed--

'In W. P. 521 of 1957, it has been observed that the description of the lands as Iruwaram in the sale deeds can be taken into consideration, as other evidence under Section 185 (3) of the Estates Land Act The sale deeds can also be taken into consideration along with other evidence to consider the character of the land. In W. P. No. 340 of 1961 Veeraswami, J., has held that Kudi othis could conclusively point to an assertion on the part of the land-holder to treat the lands as pannai or private'.

I have adverted to these decisions only to affirm that the Courts below came to the correct conclusion as regards the character of the land and as to the rights of the respondents. Even otherwise, the appellants' contentions cannot be accepted.

12. As regards the facts revolving around the remit order in C. M. A. 294 to 298, there is nothing palpably irregular and improper necessitating an interference. Having found that the relationship of the landlord and tenant does not exist between the respondents and the appellants the lower appellate Court was constrained to send back the suit for the reckoning and quantification of the mesne profits. This is but a natural corollary to the finding as above. No doubt, the lower appellate Court could have undertaken the enquiry by itself, but it does not tantamount to shirking the responsibility, if the parties are given the liberty to make consequential amendments in the pleadings and secure the rightful relief after full hearing in the trial Court. The remit order is therefore well founded and C. M. A. Nos. 294 to 298 of 1964 are dismissed. But there will be no order as to costs.

13. In C. M. A. No. 276 of 1964 theremit order of the lower appellate Courtrelates to the issue whether the releasedeed which was filed in the lower appellate Court was admissible or not and fora reconsideration of the issue of the alleged remarriage. The lower appellateCourt allowed the interlocutory application filed for the reception of a documentfiled before it and this was done in theinterests of justice. In such circumstances, the lower appellate Court remittedthe suit for a fresh trial on a point concerning the alleged forfeiture of rights inthe properties by Rajammal due to thealleged remarriage. Incidentally, thequestion also has to be viewed in thelight of the alleged release deed directedto be received by the lower appellateCourt as additional evidence. It is in suchcircumstances that the lower appellateCourt could not agree with the judgmentand decree of the trial Court and set itaside in full. As in its opinion, a freshexamination was necessitated as regardsthe material issues in the case, it remittedthe suit for fresh trial. This is not acase in which it could be said that thefirst appellate Court shirked its responsibility. In fact, in all fairness, it gaveliberty to both parties, to adduce oral anddocumentary evidence afresh, I do nottherefore think that the remit order is inany way illegal, improper and irregular.C. M. A. No. 276 of 1964 is therefore dismissed. There will be no order as tocosts. No leave.


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