1. In this case the plaintiffs sued to establish their right to irrigate Survey Nos. 30 and 32 with the water of a certain pond, and to restrain the defendants from interfering with the, plaintiff's use of the water and for damages. The defendants who are owners of Survey No. 31 pleaded that the plaintiffs had no right to use the water of the pond for irrigating their fields.
2. The following issues were framed:
Whether the plaintiffs have an easement right to take the water of the suit tank to Survey Nos. 30 and 32 through the sluice A and the channel B?
3. Whether the channel C was newly dug and whether plaintiffs can object to it?
4. To what damages if any, are the plaintiffs entitled?
5. The District Munsif found issue 1 against plaintiffs that channel C existed for more than 20 years before the date of suit and that the damages suffered by plaintiffs amounted to Rs. 30. In consequence of his finding on issue 1 he dismissed the plaintiffs' suit. On appeal the Subordinate Judge, after a fairly full discussion of the evidence of issue 1, upheld the plaintiff's right and reversed the judgment of the lower Court and passed the following order: 'The result is to establish the plaintiffs' right and as I feel that the evidence was not properly directed there was no full trial. I remand the case for fresh disposal according to law. Costs to abide the result.' It is difficult to understand what he means by this. If he found that there was no fall enquiry he should have remanded the case for fresh trial without recording a finding on any issue. What he does is he finds the 1st issue in favour of the plaintiffs and reminds the whole case for trial to the lower Court. This is a clear exercise of jurisdiction with material irregularity. By his recording an emphatic finding on the 1st issue the Subordinate Judge has tied the hands of the District Munsif as regards the trial of that issue and even if the District Munsif was prepared to go against the finding of the Appellate Court, on appeal to the same Appellate Court, the finding of the, District Munsif would be upset as the Sub-Judge was not likely to change his opinion.
6. My brother Kumaraswamy Sastriar, J., and I had to consider this question in a recent case Subbe Goundan v. Krishnamachari 68 Ind. Cas. 869 : (1922) M.W.N. 269 and we held that it was a material irregularity, for the Appellate Court to record a finding on the main issue and then remand the whole case to the Court of first instance for disposal. If it was a case in which a preliminary decree could be passed it was the duty of the Court to pass such a decree so as to enable the party against whom the decree was passed to prefer a second appeal if so advised. In that case we treated the order of remand as a decree and heard a second appeal against the decree. In cases where a preliminary decree could not be passed if the Appellate Court records its finding on certain issues, it should ask the lower Court to try the issues which it has not decided.
7. In this case I do not think it necessary to direct the Sub-Judge to draw up a preliminary decree as was done in Sidhanath Dhonddev v. Ganesh Govind 17 Ind. Cas. 637 . I set aside the order of remand of the Subordinate Judge and direct him to record his findings on issues 2 and 3 and pass a decree so that the party against whom the decree is passed may have a chance of preferring a second appeal to the High Court if so advised. I make no order as to the costs of this.