1. The appeal is against the order of the Judge of the Court of Small Causes, Trichinopoly, remanding a suit for fresh disposal to the District Munsif of Kulitalai after setting aside the District Munsif's decree.
2. The suit was brought by the plaintiff (respondent here) to declare that a certain property belonged to the Kamakshi Ammal Temple, Maradi village, the plaintiff being the hereditary trustee of that institution. The properties comprise two Survey Nos. 585-A and 585-B. As to 585-A there is no question because both the Courts have found that it belongs to the temple and it is conceded that the setting aside of the Munsif's decree by the Subordinate Judge is not intended to disturb this portion. With regard to 585-B the suggestion is that it was acquired on dharkhast by the defendant's grandfather who was a pujari of the temple and he thus acquired it in a fiduciary capacity and must be declared to have held it not on his own behalf but on behalf of the temple. That is the case urged in the revision petition, and so I will delay referring to it more particularly.
3. The District Munsif decreed the suit in toto. The Subordinate Judge found that 585-A belonged to the temple but held that the plaintiff had failed to prove the temple's title to 585-B. The learned Subordinate Judge having also come to that conclusion on the evidence, the plaintiff then petitioned to amend his plaint to the effect mentioned above. The first question as regards the appeal is whether the appeal lies.
4. It has hardly been argued that the decision of the Munsif was on any preliminary point and I am clearly of opinion that it was not. The District Munsif decided all the issues before him and the remand must be under Section 151, Civil P. C. which deals with the inherent powers of the Court. In Venkata Radhakrishna Rao v. Venkata Rao A. I. R. 1925 Mad. 229 it was held that where after the original Court had disposed of a suit by trying all the issues before it, the appellate Court allows an amendment of the plaint and hence remands the suit for trial on the amended plaint, the order of remand is one passed under the inherent powers of the Court and that an appeal from the order of remand is incompetent. With that decision I agree. It seems to me therefore that no appeal lies and the C. M. A. must be dismissed with costs.
5. As regards the C. R. P. it is urged that the Subordinate Judge was wrong in allowing an amendment of the plaint and the consequent framing of fresh issues on appeal. As has been more than once pointed out, the powers of amendment under the Code are very wide and the only rule in practice that limits these powers is the recognised rule that you shall not change by amendment one cause of action into another. The question is, has this been done in the present case? We adjourned the case in order to give the petitioner an opportunity of translating the pleadings which has now been done. Of the plaint lands 585-B is said in the plaint to be Iyan land, whereas 535-A is said to be Manyam. There is no doubt that the plaint alleges that both those lands are the property of the temple. In the written statement the defendant alleges that himself and his ancestors have been hereditary trustees of the temple and hereditary pujaris and that they have been from generation to generation in enjoyment of the manyam lands set apart originally for the temple. He also alleges that his grandfather petitioned for the assignment on dharkhast and obtained an assignment and gave it as a gift to his daughter. It seems to me that the amendment which has been allowed by the learned Subordinate Judge on appeal, namely, to try the question whether the defendant's grandfather and therefore the defendant, acquired this land in a fiduciary capacity is one which may well be allowed. I cannot see that it alters the cause of action which was the plaintiff's right to have a declaration that both these pieces of land were temple property. We have in Mallayya V. Veerayya A. I. R. 1927 Mad. 385 deprecated the method of obtaining reliefs denied on appeal in these remand cases by way of Civil Revision Petitions, and really it is that what the petitioner here is trying to do. I have more than once stated that what cannot be obtained by an appeal, a party ought not to be able to obtain by a Civil Revision Petition. To that view I still adhere. It seems to me that the learned Subordinate Judge has not exceeded the powers of amendment given by the Code. The revision petition, therefore, must also be dismissed.
6. The circumstances in which this case has been remanded are substantially similar to those in which the remand order was passed in Balla Mallayya v. Peddi Veerayya A. I. R. 1927 Mad. 385 In that case no serious attempt was made to argue that the remand order fell under Order 41, Rule 23. It appears to me that the position is clearly untenable, even in view of the very wide definition which had been given to 'preliminary point' in Raman Nayar v. Krishnan Nambudripad A. I. R. 1922 Mad. 505 That definition requires that the trial Court should have left undecided one or more of the issues framed for trial, and an examination of the District Munsif's judgment in the present case shows that he decided all the issues that were at the time before him. It cannot even be said that the additional issues which the learned Subordinate Judge has thought it right to frame explicitly arose upon the pleadings. What happened was that the Subordinate Judge found that the plaintiff might have a claim to Survey No. 585-B even on the case put forward by the defendant and accepted by the appellate Court. In order to make the nature of that case clear he allowed the plaint to be amended and then drafted the two fresh issues which he has sent down. Even had he not allowed the amendment of the plaint but had contented himself with framing the fresh issues, I am clear that the remand would not be on a preliminary point. As authority for this position I need only refer to Radhakrishna Rao v. Venkata Rao A. I. R. 1925 Mad. 229 and a recent case decided by Devadoss and Sundaram Chetty, JJ., A. A. O. No. 107 of 25. I agree that the remand order must be deemed to have been passed in the exercise of the inherent jurisdiction possessed by the Court. Accordingly no appeal lies against it under Order 43, Rule 1, Clause (u).
7. We have then to consider whether the Criminal Revision Petition should be allowed on the ground that Courts do not possess jurisdiction to make an amendment of this character. The power to allow amendments at any stage is conferred by Order 6, Rule 17 and it is a power expressed in unqualified terms, the only restriction imposed being that the amendment should be necessary for the purpose of determining the real questions in controversy between the parties. It is said that in allowing this amendment the learned Subordinate Judge has permitted the plaintiff to put forward a new case. It has no, doubt been held that amendments which alter the character of the suit should not be permitted; but whether this touches the question of jurisdiction or is merely a rule of practice, we have not been shown. Having regard to the terms of the rule I have quoted, I think that the latter view must be accepted. Apart from this however I am clear that the amendment allowed has not altered the character of the plaintiff's case in any substantial manner. The plaint as it originally stood merely averred that the two Survey Nos. belonged to the plaint temple. It was not stated in what manner the temple derived its title to the property. Upon this the 5th issue was framed.
Is the whole of the suit property the trust property of the temple?
and the parties went to trial upon these general terms. The learned District Munsif answered that question in the affirmative in the case of S. No. 585-B in particular discrediting the defendant's version that this plot had been acquired by his grandfather on dharkhast. If he had answered that question in the negative, as the Subordinate Judge did, then and then only would an issue arise as to whether in any circumstances the temple could lay claim to this part of the property; in other words, the plaintiff has been permitted to show, granting the fact of the dharkhast, that applying the principle of a constructive trust the property is the temple's. The question that still remains is one of the title of the temple to the plot B and accordingly I cannot see that the amendment has altered the character of the suit. Nor has it been satisfactorily shown that to allow the amendment at this stage has resulted in any prejudice to the defendant. The only prejudice suggested is the delay thereby occasioned, but inasmuch as the patta was granted as far back as 1886, the small difference of time between trial in 1924 and in 1927 cannot have much effect upon the availability of the evidence.
8. The learned Subordinate Judge has set aside the decree of the District Munsif in its entirety, probably because that decree awards the whole land as a single No. 100/3 under the new survey. It is of course understood that the finding with regard to the portion formerly known as 585-A will be unaffected, and any decree which is eventually passed should keep this in view.
9. I agree that the appeal and the revision petition should be dismissed with one set of costs.