1. This is an appeal by the first defendant against an order of remand. The suit was for declaration of title and injunction or in the alternative for declaration and possession. The trial Court dismissed the suit. On appeal filed by the plaintiff by his power of attorney agent, the learned Subordinate Judge remanded the suit. The main basis for the remand was that an additional document was filed at the appellate stage. This was a copy of a mortgage deed of 1928. In the plaint itself, it was stated that in that mortgage of 1928 the property involved in the present suit was also one of the items which were mortgaged. That was relied upon as a piece of evidence to show that the plaintiff had title to the property in 1928 and that he was in possession. Under these circumstances, one would have expected him to have filed a registration copy of this mortgage deed in the trial Court itself and adduce necessary evidence to show that the suit property was also one of the items mortgaged. But the copy of the mortgage deed was not marked in the trial Court. It was tendered at the appellate stage saying that by inadvertence the plaintiff had omitted to mark it. The learned Subordinate Judge admitted this evidence under Order XLI, Rule 27(1)(c). In my opinion, however, that provision may not apply. The learned Subordinate Judge does not find that without the help of this document he could not pronounce a satisfactory judgment on the evidence actually available, and there is no substantial cause. The reception of the additional evidence would, therefore, have to be considered under clause(b). The plaint itself refers to this as a material part of his evidence and it may be that the plaintiff failed to mark it because the original deed had been filed in the prior suit. It is an important document according to the plaint and hence I am disinclined to disagree with the discretion of the learned subordinate Judge to give an opportunity to the plaintiff to adduce further evidence with reference to this document. But it will have to be on heavier terms than those imposed by the learned Subordinate Judge. The only penalty imposed by him is that the plaintiff should bear the costs of suit of the first defendant in the trial Court upto the stage irrespective of the result of the suit. I would go further and direct the plaintiff to bear the costs of the first defendant in the lower appellate Court also, irrespective of the result of the appeal.
2. The reception of the additional evidence, however, will not justify an order of remand. The appellate Court will have to keep the appeal on file and dispose it of, after taking the additional evidence either itself or directing the trial Court to take the additional evidence under Order XLI, Rule 28, C.P.C. This has been pointed out in a number of decisions for instance in Telikicherla Kandala Sri Manarayana Charyulu v. Koyal Kandadai Bhavanacharyulu : (1948)1MLJ336 Kanjur Sri Agneswaraswami Devastanam by its Superintendent Chithiah Mudaliar v. Govinda Pandithan : (1948)2MLJ413 Sowdammal alias Sundarammal v. Veerammal : (1970)1MLJ205 and Annamalai v. Narayanaswami Pillai : AIR1972Mad316 . The learned District Munsif considered the evidence available before him and came to some conclusion. There is no finding by the learned Subordinate Judge that his decree has to be set aside. Accordingly, the order of remand is set aside and the learned Subordinate Judge is directed to keep the appeal on his file and dispose it of according to law and in accordance with the observations in this judgment. The copy of the mortgage deed may be admitted, because the original was filed in the previous suit, and evidence may be permitted to be adduced, just to show the identity of the property, that is to say, that the suit property was one of the items mortgaged in 1928, and that the plaintiff was in possession. As for adverse possession, the learned Subordinate Judge will have to be satisfied that such additional evidence will be justified under the provisions of Order XLI, Rule 27 C.P.C. and I do not wish to say anything about it at this stage.
3. The parties will bear their own costs in this appeal.
4. Order accordingly.