1. This appeal arises out of a suit for recovery of possession of a small piece of land to which the plaintiffs claim title to the extent of a 5 annas 6-gundas 2-karas and 2-krantis share. The suit has already occupied a great deal of time both in the trial Court and in the hearing of the appeal in the lower Appellate Court. Before the learned Munsif the trial began on the 3rd November 1914 and was not concluded till the 23rd December 1914, when the suit was dismissed. The practice of trying cases piecemeal has been so often animadverted upon that it is only necessary for us to invite attention to the observations which have been made by this Court in previous cases.
2. It appears that before the lower Appellate Court three questions were argued: first, whether the principal defendants are the co-sharers of the plaintiffs and the pro forma defendants in respect of the land in suit; secondly, whether the plaintiffs are estopped from maintaining the suit, and thirdly, whether their right is time-barred. Upon the second and the third questions the learned Subordinate Judge found in favour of the plaintiffs who were the appellants before him. Then he dealt with the first question which formed the most important part of the case. He discussed the evidence at some length and with considerable detail; having done so, however, he came to the somewhat important conclusion that the evidence on both sides was so unsatisfactory and inconclusive that he was unable to determine whether the defendants were or were not the co-sharers of the plaintiffs in respect of the land. Having taken that view of the case, he then referred to certain documents. These are the four documents set out in a schedule to a petition filed by the plaintiffs in the trial Court on the 9th December 1914. It appears that complaint was made by the plaintiffs that these documents had not been received in evidence by the Munsif and the learned Subordinate Judge remarked as follows: 'it seems to me that, if admitted in evidence, they might throw some valuable light on the point in controversy.' He goes on to say that in the circumstances in his opinion a chance should be given to both the parties to produce any further evidence they can produce in support of their respective cases. The order which was finally made was that the suit should be remanded to the trial Court for a fresh decision after receiving in evidence the documents tendered by the plaintiffs-appellants as also any further evidence which they and the defendants might adduce in support of their respective cases.
3. In the appeal before us which is preferred by the principal defendants, it is contended that this order of remand is not warranted by the provisions contained in Order XLI, Rule 23, Code of Civil Procedure. In my opinion, that contention cannot be gainsaid. The order is not an order which it was open to the learned Subordinate Judge to make under Order XLI, Rule 23. The Munsif certainly did not dispose of the case upon a preliminary point. On the contrary, the trial lasted for many days and both parties had ample opportunity to produce and tender all the evidence in their possession, or which they were able to bring before the Court. It is said that the case of Abdul Karim Abu Ahmed Khan v. Allahabad Bank, Ltd. 41 Ind. Cas. 598 : 44 C. 929 : 26 C.L.J. 49 : 21 C.W. 877(F.B.) covers such an order as that which the Subordinate Judge has made. In my opinion, that is a total misapprehension of the effect of the decision of the Full Bench. The decision recognises the inherent power of remand in cases other than those specified in Order XLI, Rule 23, if a remand be necessary for the ends of justice. In the present case I cannot persuade myself to believe that any remand was necessary for the ends of justice. If the learned Subordinate Judge thought that additional evidence was necessary, he might have taken action under Rule 27 of the same Order. He might have taken the evidence himself or he might have asked the trial Court to take the evidence and to send it up to him. Having regard to the time already spent in the case, in my opinion, it is most unfortunate that the Subordinate Judge took the course he did take and did not decide the case on the evidence on the record or deal with it under Order XLI, Rule 27, if additional evidence was necessary.
4. The result is that, in my opinion, the order of remand passed by the Subordinate Judge must be set aside. The difficulty is to know what is the proper order to make in the circumstances. We are informed that the learned Subordinate Judge who heard this appeal in the first instance has left the district temporarily and may return. This case must go back to the lower Appellate Court in any case. If, on its return to that Court, it comes before the Subordinate Judge who last heard it, then he will consider the documents to which I have referred. He will consider whether they were properly tendered and tendered in time in the trial Court. He will consider whether they ought or ought not to be admitted in evidence and if he comes to the conclusion that they ought to be admitted in evidence, he will be at liberty to admit them and give the parties an opportunity to produce either before himself or before the Munsif such evidence as they may wish to produce for the purpose only of supporting or rebutting the evidence supplied by the documents. He will then come to a decision upon the whole case and make a decree accordingly. If this case, however, when it goes back to the lower Appellate Court, should come before another Subordinate Judge, it will be impossible for him satisfactorily to carry out such an order as we have just made. In that case the Subordinate Judge will have to re-hear the appeal with all the powers which an Appellate Court has under Order XLI. The costs will abide the result.
5. I agree.