M.M. Ismail, J.
1. One daughter and the descendants of other two daughters of one Thanuvan Arumugham filed O.S. No. 120 of 1962 on the file of the Court of the Additional District Munsif of Nageroil praying for a declaration of their tide to and possession of the plaint property and for a declaration that the defendants had neither title to nor possession of the plaint property and for a permanent injunction restraining the defendants from enterting into possession of the plaint property. The plaint property was described as S. No. 4140 and of an extent of 3 acres 54 cents in Therur village. The defendants in the suit contested the claim of the plaintiffs alleging that the suit property never belonged to Arumugham and they were the persons entitled to the property.
2. The basis of the claim of the plaintiffs was that the suit property belonged to Thanuvan Arumugham who had three daughters and two sons and after the death of Arumugham the property was divided as between the three daughters and two sons under Exhibit A-1 and since the two brothers died unmarried their shares also came to the three sisters and those shares also were divided between them under Exhibit A-2. In view of this the defendants Contended that the suit property not merely did not belong to Arumugham but also was not included in Exhibits A-1 and A-2. The learned District Munsif struck the necessary issues and came to the conclusion that the plaintiffs were not the owners of the suit property, that they did not have possession of the suit property and on these findings dismissed the suit. In view of the arguments advanced before me it is necessary to refer to the contentions put forward before the trial Court and how they were dealt with.
3. As I pointed out already in the plaint the claim of the plaintiffs was based on title and the basis was that the property originally belonged to Arumugham and after his death it belonged to the five children of Arumugham and after the death of the two sons the properties came to be enjoyed by the three daughters under Exhibits A-1 and A-2. Exhibits A-1 and A-2 did not contain this Survey Number nor the extent. On the other hand Exhibits A-1 and A-2 contained a different survey number, namely S. No. 4154 of an extent of 3 acres 24 cents. In View of this the plaintiffs contended before the trial Court that in Exhibits A-1 and A-2 instead of referring to S. No. 4140 and the extent of 3 acres 54 cents it was mistakenly referred to as S. No. 4154 of an extent of 3 acres 24 cents. The learned District Munsif considered this contention of the plaintiffs and came to the conclusion that there could not have been any mistake with regard to the description of the property in Exhibits A-1 and A-2. It may be noticed that not merely the extent and the survey number of the property differed but also, as pointed out by the learned District Munsif the description and the nature of the property also differed. Under Exhibit B-1, a copy of the settlement register for S. Nos. 4140 and 4154 the former was described as jenmam while the latter was described as Pandara pattom. Again in Exhibit A-1 and Exhibit A-2 the property was described as Pandara otti. Therefore the learned District Munsif came to the conclusion that the extent of the property, the description and the name of the property comprised in Exhibits A-1 and A-2 are quite different from those of the suit property. A further argument was advanced before the learned District Munsif in respect of the identity of the property. The argument was that notwithstanding the difference in the survey number and the extent and nature of the property the boundary description of the property will establish the correct property dealt with under Exhibits A-1 and A-2. Admittedly, though two boundaries tallied, two other boundaries did not tally with reference to names of the persons who owned the adjoining lands. The learned District Munsif pointed out that there was no convincing evidence to explain the names of Maharajan found as northern and western owners in Exhibits A-1 and A-2 instead of the name Valli-muthu. On the basis of these factors the learned District Munsif came to the conclusion that the plaintiffs in the suit could not be held to have derived any title to the property under Exhibits A-1 and A-2. The learned District Munsif also considered the claim of the plaintiffs that the property belonged to Arumugham and came to the conclusion that the plaintiffs had not established the same. On considering tax receipts and other evidence placed before him the learned District Munsif also came to the conclusion that the plaintiffs had not established their possession of the suit property. It is on these findings, as I pointed out already, the suit was dismissed.
4. Against this judgment and decree of the learned District Munsif the plaintiffs preferred an appeal to the Subordinate Judge of Nagercoil. The learned Subordinate Judge by his order dated 22nd October, 1964, set aside the judgment and decree of the trial Court and remanded the suit for fresh disposal. It is this order of remand that is challenged before me in this appeal by the defendants.
5. It is necessary to set out the reasons which prompted the learned Subordinate Judge to remand the suit for fresh disposal. Before the learned Subordinate Judge the plaintiffs produced the copy of the settlement case relating to S. No. 4140. On a perusal of that settlement case the learned Subordinate Judge found that Thanuvan Arumugham had only an othi and the senior members of the other five families in whose names patta was issued had jenmam rights over the suit (property) survey number at the time of the settlement. The learned Subordinate Judge observed that the learned Counsel for the appellants before him argued for a remand of the case on the ground that the case set up by the plaintiffs before the lower Court turns out to be not correct because of the decision in the settlement case. Consequently one of the grounds on the basis of which the order of remand was passed was that the plaintiffs had not put forward a correct case and therefore they must be given an opportunity to put forward their correct case. The second reasoning is to be inferred from the following observation of the learned Subrodinate Judge:
The want of plea is not the only point that is against the disposal of the case by the lower Court. On going through the lower Court judgment it is seen, that the parties to the suit had to face the want of evidence regarding the location of the suit property.
Having observed this, the learned Subordinate Judge considered that it was necessary to find out the relationship between Maharajan and Vallimuthu referred to already in order to identify or locate the property. The third ground is with reference to the names of the properties in S. Nos. 4140 and 4154. The learned Subordinate Judge points out that in Exhibits A-1 and A-2 the name of the property is given as Manavilai which the real name of S. No. 4140 is Annamalai Idachivayal while the real name of S. No. 4154 is Manavilai. Having mentioned this, the learned Subordinate Judge points out that the plaintiffs did not take out a commission to locate the property in the suit and it was for the plaintiffs to get the property in their possession located and establish the right to it before they can get a declaration and injunction. Notwithstanding that, the reason that prompted the learned Subordinate Judge to order a remand as to enable the plaintiffs to apply for appointment of a Commissioner to locate the properties. Again the learned Subordinate Judge points out that the plaintiffs had not added necessary parties to the suit Which was one for a declaration regarding S. No. 4140 as a whole. Consequently the fourth ground that prompted the learned Subordinate Judge to remand the suit was to enable the plaintiffs to add the necessary parties to the suit. Having made these observations the learned Subordinate Judge concluded as follows:
In view of the above, I am constrained to hold that this suit has to be sent back to the lower Court for giving the plaintiffs an opportunity to get the property in dispute located with reference to S. Nos. 4140 and 4154 by taking out a commission with reference to Exhibits A-1 and A-2, A-12 to A-14, A-10 and B-3 and B-4, receive the documents produced here, get the original of the settlement case relating to the two survey numbers, permit the plaintiffs to get the plaint amended suitably, receive additional written statement from the defendants, strike necessary issues, permit the parties to adduce fresh evidence if necessary and get the suit disposed of according to law and the observations in this order.
Mr. T. R. Ramachandran, the learned Counsel for the appellants, contends that on the face of the order of the learned Subordinate Judge the order of remand was not warranted. According to the learned Counsel, in essence the learned Subordinate Judge has asked the plaintiffs to file a fresh suit according to the advice given by him. Order 41, Rule 23 of the Civil Procedure Code does not enable an appellate Court to remand the matter for fresh disposal to the lower Court under such circumstances.
6. On the other hand, Mr. Gopalaswamy Ayyangar, the learned Counsel for the respondents, contends that amendment to Order 41, Rule 23, effected by the Madras High Court enables an appellate Court to remand a suit in the interests of justice and since the learned Subordinate Judge felt in this case that the interests of justice required that the suit should be remanded, he did so and the remand is warranted by the terms of Order 41, Rule 23, Civil Procedure Code, as amended by the Madras High Court.
7. I am of the view that on the basis of the reasoning of the learned Subordinate Judge the order of remand cannot be sustained. Whether it was before the amendment of the Madras High Court or after, before an appellate Court can remand a matter for fresh disposal to the lower Court, first it must come to a conclusion that the decision of the trial Court is liable to be reversed or set aside. Order 41, Rule 23 as amended by the Madras High Court is in the following terms:
Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in 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 by order remand the case....
Where a remand order is passed whether in a case where a suit has been disposed of upon a preliminary point or in a case where a suit has been disposed of on merits, the condition precedent for the exercise of the power of remand is a finding by the appellate Court that the judgment and decree of the trial Court is erroneous on facts or on law and therefore liable to be reversed or set aside. So long as that finding has not been arrived at, there is no scope for the appellate Court reversing or setting aside the judgment and decree of the trial Court and as a consequence thereof remanding the suit for fresh disposal. Mr. R. Gopalaswamy Ayyangar was not able to point out to me that in any portion of the judgment of the appellate Court the learned Subordinate Judge has come to the conclusion that the judgment and decree of the trial Court were erroneous on the pleadings of the parties or on the evidence placed before it. It is not even the case that there has been a misunderstanding of the pleadings of the parties or a denial of an opportunity to the parties to place the materials they wanted to place before the Court, in support of their respective cases. Under such circumstances, in my view, a power of remand is not available to the appellate Court. The expression ' where the appellate Court considers it necessary in the interests of justice to remand the case ' has to be considered with the other alternative that on having set aside the judgment and decree of the trial Court, the appellate Court itself will have to finally dispose of the matter in the appeal. Consequently the contrast is between the power to remand for fresh disposal and the power to decide by the appellate Court itself, with the result the expression 'in the interests of justice' has reference to the appellate Court in remanding a suit for fresh disposal instead of itself deciding it. The expression ' interests of justice ' does not widen the power of the appellate Court to remand a suit in the sense that irrespective of the fact whether it comes to the conclusion that the judgment and decree of the trial Court are liable to be reversed or set aside or not, if the appellate Court is of opinion that the interests of justice require that there should be a fresh trial, it can remand the suit for fresh disposal. No principle or authority was brought to my notice which will support such a contention.
8. On the other hand, Mr. T. R. Ramachandran, the learned Counsel for the appellants, brought to my notice several decisions of this Court which have considered the scope of the power of the appellate Court to pass an order of remand. The learned Counsel referred to Balasubramania v. Subbiah : AIR1965Mad417 , and invited my attention to the following passage therein:
If the trial Court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate Court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial Court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for a fresh trial. The fact that there are seme defects and infirmities in the reasoning of the trial Court is surely not a ground for the appellate Court not to do its duty of disposing of the appeal on merits. The appellate Court will be acting clearly without jurisdiction, if it simply and mechanically remands a suit to the trial Court without applying its mind as to whether the judgment and the findings of the trial Court are correct and if not whether it should be reversed or set aside. In other words, the appellate Court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside.
Basing himself on this observation, Mr. T. R. Ramachandran argued that in this case there is no conclusion whatever by the learned Subordinate Judge that the findings of the trial Court cannot be supported and must be set aside.
9. To the same effect is the following observation in Veeramma v. Lakshmayya : (1948)1MLJ427 , (Head-note (c)).
It is only where the appellate Court finds it necessary to reverse or set aside the decree that it is entitled to remand the suit.
The decision of this Court in Ramakrishna v. Rangayya : AIR1954Mad783 , also supports this position. It was observed in that case:
It has been repeatedly held by this Court that a remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a Court to come to a definite finding on the point in issue, is not sufficient to enable the Court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial Court.
It is unnecessary to refer to the further decisions since the principle is clear, namely, that the jurisdiction of an appellate Court to remand a case for fresh disposal arises only if the Court comes to the conclusion that the findings of the trial Court are erroneous and are liable to be set aside or reversed. In the absence of such a conclusion a power of remand is not available to an appellate Court. As I pointed out already in this case the appellate Court did not pass its order of remand on any error on the part of the trial Court or defect in the procedure adopted by the trial Court but merely to enable the plaintiffs-to supply the deficiencies in their case and to do what they failed to do when they went to the Court with a definite case. Under these circumstances I am of the view that the order of remand in this case cannot be sustained.
10. Therefore I allow this appeal and set aside the order of remand with the result the learned Subordinate Judge will have to consider the appeal afresh on merits with reference to the case of the parties and the evidence adduced by them in support of their respective cases. No order as to costs. No leave.