1. This is an appeal by the defendant against an order of remand made by the learned Subordinate Judge, Vellore, remaining the suit O.S. No. 462 of 1963 for trial once again by the trial court, the District Munsif Court of Arni. The suit was filed by plaintiffs 1 and 2 for partition of a half share in the A Schedule properties, Items 1 to 5, and for declaration of title and possession of the B Schedule properties Items 1 to 3. The suit was decreed by the trial court in respect of them 2 to 5 of A Schedule and was otherwise dismissed. The plaintiffs preferred an appeal. It was heard by the learned Subordinate Judge. He thought that two additional issues were necessary which had not been framed by the trial court and solely on that ground he set aside the order of the learned District Munsif and remanded the suit for fresh trial permitting the parties to adduce additional evidence. Aggrieved by that the defendants have preferred this appeal.
2. To decide the question involved, it is necessary to refer briefly to the pleadings of the parties. There was one Kuppian Pillai. He died leaving two sons, Narayanaswami Pillai (first plaintiff) and Govindaraja Pillai. Govindaraja Pillai is now dead the first defendant Annamalai is his son and the second defendant Pattammal, his widow. The plaintiffs alleged that Item 1 of A Schedule was acquired by Kuppian Pillai with joint family nucleus and therefore that property was joint family property available for division. Item 2 to 5 of A Schedule were alleged to be ancestral properties. So far as B Schedule properties are concerned, the case of the plaintiffs was that there was an oral usufructuary mortgage by the owners Abbu Pillai, Bondhu Pillai and Mottai Pillai to one Rangaswami, that Rangaswami took the mortgage amount from Kuppian Pillai and put him in possession, that the sons of Kuppian Pillai were in enjoyment of B Schedule properties as usufructuary mortgagees, that later on the first plaintiff purchased the equity of redemption under Ex. A-5 dated 3-5-1961 and Ex. A-6 dated 5-5-1961, that the usufructuary mortgage became extinguished by Section 9-A of the Madras Agriculturists Relief Act IV of 1938 and that, therefore, the first plaintiff had become entitled absolutely to the properties. The second plaintiff was stated to be the usufructuary mortgagee from the first plaintiff of the suit properties.
3. The defendants pleaded that Item 1 of A Schedule was purchased by Kuppian Pillai with his own funds, that there was no joint family nucleus then, that this property which was the self-acquired property of Kuppian Pillai was later bequeathed by him by a registered will dated 17-8-1927 in favour of Govindaraju Pillai, and that, therefore, Govindaraju Pillai and his heirs were entitled thereto. With respect to Items 2 to 5 of A Schedule, the defendants conceded that they were ancestral properties, but pleaded that the first plaintiff left Govindaraju Pillai and his heirs in possession because there were some debts to be paid which the first plaintiff was unwilling to discharge, and that Govindarajulu Pillai and the defendants discharged the debts and ousted the plaintiffs by adverse possession. With regard to B Schedule properties, the defendants pleaded that Govindaraja Pillai purchased them orally (from whom they were purchased and whose debts were discharged were not stated) and were in possession in their own right.
4. The learned District Munsif held that Item 1 of A Schedule was the self-acquired property of Kuppian Pillai, and that it was validly bequeathed by a Will Ex. A-2 to Govindaraja Pillai. The suit was dismissed in respect of A Schedule, Item 1. With regard to A Schedule Items 2 to 5, the learned District Munsif held that the defendants having admitted the ancestral character of the properties, it was up to them to prove the ouster. But the burden had been discharged. He therefore, granted a decree for partition. With regard to B Schedule properties, he held that the plaintiffs had not proved their case and accepted the defendant's case.
5. The first reason given by the learned Subordinate Judge for his order of remand is that in the plaint it was alleged that there was an earlier partition of A Schedule properties between the first plaintiff and Govindaraju. But it was not evidenced by anything in writing and the first plaintiff had gone away to Madras leaving the properties that had fallen to his share to Govindaraju and his heirs. It was alleged in the written statement that on those allegations in the plaint itself the second suit for partition was not maintainable. But the defendants did not get any issue framed to that effect. The learned Subordinate Judge held that the following issue had to be framed:
'Whether this suit is maintainable in view of the allegations in paragraph 5 of the plaint?'
The second reason given by the learned Subordinate Judge is that the plaintiffs have not examined any of the vendors under Exs. A-5 and A-6 with regard to the sale of the properties in B Schedule. He thought that the following issue was necessary:
'Whether Exhibits A-5 and A-6 were executed by the vendors therein and whether they are true and valid and binding on defendants 1 and 2.'
Taking up the first point, it will be noted that the defendants did not get any issue framed that the suit was not maintainable in view of the prior partition alleged in the plaint. They were evidently not serious about it. It will also be seen that the learned District Munsif granted a decree for partition in respect of Item 2 and 5 of A Schedule. If the defendants were really serious about their plea that the second suit for partition was not maintainable, they would have filed an appeal against the decree for partition of A Schedule Items 2 to 5. But they did not file an appeal. It will not be to the advantage of the plaintiffs at all to have a trial of the issue framed by the learned Subordinate Judge that the suit is not maintainable in view of the allegation of the prior partition. Certainly the plaintiffs could not have wanted a remand on that point. Sri K. Swamidurai, learned counsel for the respondent-plaintiffs before me is very clear that the plaintiffs did not want that issue. Having regard to the fact that the defendants who should have urged this plea did not get the issue framed and they have not filed any appeal against the decree for partition, it is not rights for the Court to take upon itself the task of framing the issue and non-suit the plaintiffs. The first reason for the remand, therefore, fails.
6. As regards the second reason, it has to be pointed out that issue one already framed in the suit was sufficient. It was whether the B Schedule properties are the separate properties of the first plaintiff as contended by him. Exs. A-5 and A-6 were merely final links in the title set up by the plaintiffs and it was not necessary to frame any separate issue with regard to Exs. A-5 and A-6. If the plaintiffs did not examine their vendors, it was their own look out. That would not justify a remand at all. As for the property of letting additional evidence by examining the vendors, the conditions of Order 41, Rule 27 will have to be satisfied, as pointed out in a number of decisions, for instance, Md. Akbar Khan v. Motai, :--
'Order 41, Rule 23 as amended in Madras in 1930 says: 'Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed on appeal, or where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the appellate Court may be order remand the case......'
Order 41, Rule 24 says that, where the evidence on record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, finally determine the suit. Order 41, Rule 25 says that, if the trial Court omitted to frame or try any issue, the appellate Court may refer the same to the trial Court for taking additional evidence. But the appeal with have to be finally disposed of by the appellate Court. Order 41, Rule 27, deals with reception of evidence. It has been pointed out in a number of decisions by this Court for example Subramanian v. Kaliammal : (1968)2MLJ548 and Sowdammal v. Veerammal : (1970)1MLJ205 (where the prior decisions are referred to) that, where the learned District Munsif has considered the evidence adduced before him and come to some conclusion, the appellate Court should not normally remand the case. It should see first whether it cannot dispose of the case itself under Order 41, Rules 24, 25, 26 and 27. Only if it is not possible so to do and it is necessary in the interests of justice to remit the suit, remand should be resorted to. It is only in this way that Order 41, Rule 23 can be construed in harmony with Order 41, Rule 24 to 27. Logically it would have been better if the second half of Order 41, Rule 23 permitting a remand case after Order 41, Rules 24 to 27. The reason why it appears to have been enacted before Order 41, Rules 24 to 27 seems to me that that portion or Order 41, Rule 23 came by way of amendment in Madras to the parent rule in India under the Code as applicable to the whole of India which confined an order of remand only to a cost where the trial Court disposed of a suit upon a preliminary point. In that state of Order 41, Rule 23, a number of decisions held that, where the appellate Court thought it fit to remand, the remand was in the exercise of its inherent jurisdiction under Section 151 and therefore no appeal lay.
To put an end to this controversy, the Rule was amended in Madras in 1930. Order 41, Rule 23 second half has indicated the limits under which alone a remand is permissible and this amendment has to be read along with Order 41, Rules 24 to 27. It is because the Rule Committee and the Legislature have thought it fit to effect the amendment to Order 41, Rule 23, it has happened that the second portion of Order 21, Rule 23 came before Order 41, Rules 24 to 27. It has been pointed out by Chandra Reddy, J. (as he then was) in Thirumalaisami Mudali v. Periasami Mudali, : AIR1952Mad66 , that, after the Madras Amendment of Order 41, Rule 23, there is no scope for the contention that there is inherent power of remand under Section 151 apart from Order 41, Rule 23. That is also necessarily implied in the decisions in : (1968)2MLJ548 and : (1970)1MLJ205 , and the decisions referred to therein.
7. It will be seen that the remand in this case is not justified under Order 41, Rule 23 according to the decisions quoted above. Accordingly the order of remand is set aside. The learned Subordinate Judge is directed to restore the appeal to his file and dispose of the case according to law. The civil miscellaneous appeal is allowed. The parties will bear their own costs in this appeal.
8. Appeal allowed.