K.S. Venkataraman, J.
1. This appeal has been filed by the plaintiff in O.S. No. 270 of 1957 on the file of the District Munsif of Ramanathapuram, against the order dated 14th February, 1966 of the learned Subordinate Judge of Ramanathapuram at Madurai, in A.S. No. 35 of 1961, setting aside the decree which the plaintiff had obtained at the hands of the learned District Munsif and remaining the suit for fresh disposal after reissuing the warrant of commission to the same Commissioner who had previously inspected the property. The suit concerns a strip of land marked yellow just south of the office of the Keelakarai Panchayat Board (second defendant) and north of the property of the plaintiff. The plaintiff claims it as part of his property and the Panchayat Board claims it as its. The plan, Exhibit B-2, drawn by the Commissioner shows the property in dispute. On a prior occasion the plaintiff had filed the suit O.S. No. 50 of 1946 against the Panchayat Board and succeeded and he contends that that decree deals with the same property. However, the State of Madras, who is the first defendant, claims that the strip of property was acquired in 1908 and transferred to the second defendant and the State is not bound by the decision in O.S. No. 50 of 1946. Hence the plaintiff instituted the suit O.S. No. 270 of 1957 impleading the State as the first defendant and the Panchayat Board as the second defendant.
2. The learned District Munsif in an exhaustive judgment dated 14th September,, 1960, decreed the suit. One of his reasons was the non-production by the Government of the relevant records in the acquisition of 1908. The first defendant preferred the appeal A.S. No. 35 of 1961, which came up before the learned Subordinate Judge, Sri S. Kumaraswami Pillai. He inter alia inspected the suit property and after considering the materials on record, allowed the appeal and dismissed the suit. Against that, the plaintiff preferred S.A. No. 551 of 1962 to this Court. Kailsasam, J., allowed the Second Appeal on the short ground,that the learned Subordinate Judge, while relying on his inspection, had not made any memorandum of the inspection and made it part of the record as required by Order 18, Rule 18, Civil Procedure Code. He, therefore, said ' the Subordinate Judge of Ramanathapuram at Madurai, will dispose of the appeal without the plan or notes of inspection by the Judge. If the Appellate Judge feels a spot inspection is necessary he may do so.'
3. Thereafter, the matter came up before another learned Subordinate Judge Sri C. Ganapathyappan. The learned Judge did not make any inspection and did not discuss the evidence on the basis of which the learned District Munsif had decreed the suit. But remanded the suit to the learned District Munsif on a short ground which is this. The plaintiff claimed that his property was north of the houses of Sudalaimuthu Asari and Poolan Asari and that his property measures 77 feet north to south on the eastern side and 72 feet north to south on the western side. That is described as Item 1 in the plaint schedule itself. The learned Subordinate Judge felt that one of the tests for determining to whom the suit property (the alleged encroachment) belonged would be to lay the northern boundary of the houses of Sudalaimuthu Asari and Poolan Asari and then lay out 72 feet on the north of It on the western side and 77 feet on the north of it on the eastern side. If that was done, it could be seen whether the alleged encroachment fell within the plaintiff's property or not. The learned Subordinate Judge has further observed:
Both parties agreed that it is necessary to fix the sourthern boundary and locate the suit property. Under these circumstances I think it just and necessary, that the suit should be remanded to the trial Court which shall re-issue the warrant to the same Commissioner who Shall fix the southern boundary of the suit property as described in the plaint schedule and thereafter fix the northern boundary of the suit property so as to ascertain whether it includes the yellow shade portion, that is the subject-matter of the suit. The plaintiff shall bear the costs of the Commission. For these reasons this appeal has to be allowed. The decree and judgment of the learned District Munsif are set aside and the suit is remanded to the trial Court....
4. It is against this order of remand dated 14th February, 1966, that the plaintiff has preferred this appeal. Sri R. Gopalaswamy Iyengar and Sri R. Alagar appearing for the plaintiff-appellant do not take any serious objection to the direction of the learned Subordinate Judge that the southern boundary of the plaintiff's property may be fixed with reference to the houses of Sudalaimuthu Asari and Poolan Asari and that a Commissioner may lay off 77 feet on the eastern side and 72 feet on the western side. But they urge that that would not justify the setting aside of the decree of the learned District Munsif and that the learned Subordinate Judge may keep the appeal on his file and deal with the entire evidence including the additional evidence which may become available after the re-issue of the Commission. The contention of the learned Counsel is obviously correct. This Court has repeatedly held that before the appellate Court can remand that suit to the trial Court, under Order 41, Rule 23, Civil Procedure Code, it is necessary for the appellate Court to find that the trial Court's decree requires to be set aside. It cannot be said that the learned District Munsif should necessarily have proceeded to determine the question with reference to the southern boundary of the plaintiff's property especially when no request to do so had been made to him. He may have done so, but merely on that ground, the learned Sub-Judge is not correct in saying that his decree should be set aside. In such cases, the decisions of this Court lay down that it is for the -appellate Court to take the additional evidence which it requires and keep the appeal on its file and dispose it of in the light of the said evidence. (See the decisions in Ramakrishna v. Rangayya : AIR1954Mad783 , Ahamed Rowther v. Bathumal Beevi : (1960)1MLJ37 , Balasubramania v. Subbiah I.L.R. (1964) 2 Mad. 586 : 78 L.W. 105, and my decision in Chinnan Ambalam v. Ramiah Maniam and Ors. A.A.O. No. 369 dated 22nd June, 1967, Achammal and Anr. v. Kistama Naidu A.A.O. No. 88 of 1964 dated 23rd June, 1967.
5. The order of the learned Subordinate Judge dated 14th February, 1966 is accordingly set aside and he is directed to keep the appeal on his file and dispose it of according to law and in the light of the observations contained in this Judgment and the judgment of Kailasam, J., dated 1st September, 1965 in S.A. No. 551 of .1962. The parties will bear their own costs in the appeal. No leave.