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Judgment
Ramaprasada Rao, J.—The above batch of civil miscellaneous appeals are against the order of the Subordinate Judge, Ra-manathapuram in
A. S. 151 of 1963, 27 of 1959 and 29 to 32 of 1959, whereunder he modified the judgment and decree of the District Munsif, Ramanathapuram,
in the Original suits tried by the latter, and remanded the same on a particular aspect. The appeals before the lower Appellate Court were all
connected and filed by the appellants against the respondents in those civil miscellaneous appeals. In all the suits the respondents claimed that the
suit lands were pannai lands and therefore they had domain over the same and that the appellants are bound to recognise such right in them as
iruwaram-dars and liable to pay rent therefor. Both the Courts below found concurrently that the lands situate in the village of Karun-gulam is a
pre-settlement dharmasanam grant which were iruwaram pannai lands of the respondents. On an examination of the oral and documentary
evidence, the Courts below found that the suit lands are such lands of the respondents. They also found that the respondents collected
swamibogam in respect of the suit lands which by itself is an important circumstance indicating that the lands in question are private lands. The
learned District Munsif, however, found that the appellants were the tenants of the respondents. But the lower Appellate Court came to a different
conclusion and held that the evidence on record was not sufficient to make out a case of tenancy of the appellants in the respective suit lands under
the respondents.
The learned Subordinate Judge, there-lore, having come to a different conclusion from that of the learned District Munsif that the respondents are
not entitled to arrears of rent from the appellants came to the conclusion that the appellants were in any event liable to pay to the respondents
mesne profits in view of their admitted possession of the lands during the fasli or fash''s in question. He, therefore, remanded the suits to the trial
Court for the limited purpose of determining the quantum of mesne profits payable to the respondents by the appellants. He also gave a direction
that the respondents will have the liberty to suitably amend the plaint so as to secure such mesne profits as and when reckoned by the trial Court,
The result of the order of remand is that he confirmed the findings as regards the character of the lands and the right of the respondents to own and
possess them as iruwaram pannai lands, but remitted the suit for a further enquiry as to the ascertainment and quantification of the mesne profits to
which the respondents would be entitled to by reason of the occupation of such pannal lands by the appellants. As against this order of remand the
present batch of civil miscellaneous appeals are filed.
C. M. A. No. 276 of 1964 is also an appeal against an order of remand and by consent this was also heard along with the above batch of civil
miscellaneous appeals. In this case, the lower Appellate Court remanded the suit for a fresh enquiry, because the learned District Munsif in that suit
did not frame an issue about the release, which release was pleaded in the plaint, and because of certain other important circumstances attendant
with the trial of the suit. He also framed two issues and set aside the decree of the trial Court in full and practically directed a retrial of the suit. As
against this order of remand this civil miscellaneous appeal was filed.
The main legal contentions addressed before me revolve on the question whether in an appeal against an order of remand, the appellant can
canvass all the findings of fact arrived at by the appellate Court or whether the findings of fact relating to and circumscribing the order of remand
only could be agitated therein.
Before considering the arguments of the learned Counsel for appellants, it is easy to dispose of C, M. A. No. 276 of 1964. Though this is a
case in which the lower appellate Court remanded the suit, it appears to me that the totality of the suit has been remanded to the trial Court for
reconsideration in view of certain irregularities inhered therein. As a matter of fact the lower appellate court set aside the judgment and decree of
the trial Court in full. Though it gave a liberty to the respondents to have a retrial in the trial Court, presumably, in the interests of justice, it appears
to me that the lower appellate Court has substituted its own judgment to that of the trial Court and in the peculiar circumstances of the present case
it is not open to the appellants in this civil miscellaneous appeal to canvass the entire judgment and decree of the lower appellate Court by filing an
appeal under Order XLIII, Rule 1 (u), C. P. C. I shall presently advert to the right of an appellant in a civil miscellaneous appeal to canvass the
correctness of the findings other than those relating to the order of remand in such an appeal. But in so far as this appeal is concerned, as there has
been a substitution of the judgment and decree of the appellate Court to that of the trial Court, the only remedy available to the appellants in this
case was to file a second appeal, if they were so advised, and not to file an appeal under Order XLIII, Rule 1 (u), C. P. C. Thus in the peculiar
circumstances and on the facts of this case, it is not open to the appellants to canvass the other findings of the lower appellate Court.
The main arguments addressed in the batch of appeals relate to the scope of a civil miscellaneous appeal under Order XLIII, Rule 1(u), C. P.
C. The relevant provisions in the CPC which have a bearing on the question are Order XLI, Rule 23, Order XLIII, Rule 1(u) and Sections 104
and 105. Order XLIII concerns itself with appeals from orders and Rule 1 (u) provides that an appeal shall lie u/s 104 as against an order under
Rule 23 of Order XLI remanding a case where an appeal would lie from the decree of the appellate Court. Order XLI, Rule 23 reads as follows--
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 side 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, and may further direct what issue or issues shall be tried in the case so remanded and
shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its
original number in the register of civil suits and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall,
subject to all just exceptions, be evidence during the trial after remand"".
Analysing Order XLI, Rule 23, the appellate Court can remand a suit under two circumstances -- (a) if the trial Court has disposed of the suit
upon a preliminary point which is not necessarily a preliminary issue, and the decree is reversed in appeal; and (b) when the appellate Court
reverses or sets aside the decree under appeal considers it necessary in the interests of justice to remand the case. Order XLIII, Rule 1 (u)
provides for an appeal against such an order under Order XLI, Rule 23. In fact, Section 104 enables the preferment of such an appeal as it is one
which is otherwise expressly provided for in the body of the Code.
Order XLI, Rule 23, C. P. Code as it reads now, was introduced in Madras in 1930. The provisions which are apposite in the old Code which
have a bearing on orders of remand are Sections 562 and 588.
On a prima facie reading of the relevant provisions relating to appeal against orders, it is clear that in such appeals against orders of remand, the
Court which has seisin of such an appeal can probe into the legality, propriety and regularity of the facts and circumstances attendant on and
revolving upon the order of remand as such and cannot enter into or delve deep into a discussion regarding the findings which are unconnected
with and alien to the order of remand. The appellate Court has the right to differ or confirm the findings on certain issues arising in the suit if the
appellate court so confirms some amongst various findings of the trial Court, but finds itself unable to concur with the other findings of fact in
relation to other issues tried by the trial Court, then under Order XLI, Rule 23, C. P. C. the appellate Court has the right in the interests of justice
to remand the case for a re-examination and re-adjudication on such issues which according to the appellate Court have not been correctly and
properly appreciated by the trial Court.
As already stated, Order XLI, Rule 23, C. P. C. provides two contingencies which would enable an appellate Court to remand a suit. If the trial
Court decided on a preliminary point and if the said decision is reversed by the appellate Court, it could, under the powers vested as above,
remand the case for a fresh trial. This is not however, the case in this batch of appeals. We are here concerned with the other contingency
expressly provided for in Order XLI, Rule 23, C. P. C. This is a case where the lower appellate Court agreed with the trial Court on its findings on
some of the issues, but reversed or found unable to accept the findings of the trial Court on some other issues raised in the case, and therefore
considered it necessary, in the interests of justice, to remand the case. The phrase ''considers it necessary in the interests of justice'' is of very wide
connotation and vests in the appellate Court a discretion to do so. Such discretion, unless perversely exercised, cannot be lightly interfered with in
an appeal against the order of remand. It therefore appears to me that the only reasonable interpretation that could be put on the provisions relating
to appeals against orders, after collectively understanding the provisions quoted above, is that the appellate Court hearing of an appeal against an
order of remand can and should advert itself to such of those findings on the point upon which the order of remand has been made. That this is the
view that has to be taken is fortified by the embargo put upon a litigant u/s 105(2), C. P. C. who fails to prefer an appeal against an order of
remand in time.
Section 105(2) postulates that where any party aggrieved by an order of remand from which an appeal lies docs not appeal therefrom he shall
thereafter ba precluded from disputing its correctness. The correctness of an order of remand has to be treated distinctly and separately. Whilst,
therefore, considering its correctness, propriety or regularity, the correctness of ancillary, incidental or connected issues cannot be gone into in a
civil miscellaneous appeal against such an order of remand. An appeal against an order of remand is self-contained. An order of remand generally
is based on certain facts. It is such facts which could be canvassed in an appeal against that order. Therefore, if the appellate Court, while reversing
a judgment of the trial Court on some issues which in the interests of justice necessitates a remand, it is only such facts, conclusions and decisions
which have a bearing on the order of remand that could be canvassed in an appeal against such an order.
At this stage it is convenient to consider the case law relating to the subject The earliest case under the old Code is that reported in Badam v.
Imrat I.L.R.(1881) All 675. That was a case in which the trial Court disposed of the case on a preliminary point as to limitation. The first appellate
Court reversed this find ing and remanded the suit for fresh trial The High Court, on appeal, held, by a majority that--
That object would be defeated if the appellant were restricted in pleading that the remand had been made contrary to the provisions of Section
562 of the Civil Procedure Code, and forbidden to urge the more vital and radical objection to the Correctness of the adjudication on the
preliminary point.
Following the above, a Full Bench of the Bombay High Court in Bhau Bala V. Bapaji Bapuji, I.L.R.(1890) Bom 14 was of the view that in an
appeal against an order of remand ""the correctness of the remand order, in all legal respects ''was before the High Court for adjudication."" With
great respect, the words ""in all legal respects"" appearing in the judgment were never meant, in my opinion, to be literally understood, so as to
comprehend an adjudication on merits unconnected with the order of remand. In Sankaran v. Raman Kutti, I.L.R.(1897) Mad 152, this Court
approved the ratio in I.L.R.(1881) All 675. In Seshammal and Others Vs. Kuppanaiyyangar and Another, , the facts are that a preliminary point
was decided by the trial Court, which decision was reversed in appeal and the case was remanded for trial of the other issues. Ven-katasubba Rao
and Madhavan Nair, JJ., observed--
Although the appeal has taken the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact
and the only grounds available to the appellant to attack the judgment are those which would be available to him in second appeal.
Though the question in the present batch of appeals did not arise as such, there is sufficient indication here that the finding on facts relevant for the
decision of the first appellate Court to remand the suit, can be canvassed in an appeal against such an order.
The more apposite case which has settled the apparent controversy is Jainu-labideen Jainul Abideen Marakayar and Others Vs. Habibulla
Sahib, . There the Division Bench observed:
To accede to the appellant''s contention would be practically to convert the appeal from the order of remand into an appeal from the decree itself,
because if the appellants are to be allowed to raise points decided against them by the lower appellate Court in order to sustain the decree of the
Court of first instance, the respondents also must equally be permitted to contest the findings of the appellate Court against them, in order to sustain
the decree of the lower appellate Court. In our opinion such a procedure is altogether unwarranted.....
This was approved by a Full Bench of our Court in The Right Honourable the Secretary of State for India in Council Vs. Allu Jagannadham, . Vis-
wanatha Sastry. J., in Kota Kanakayya and Another Vs. Kamepalli Lakshmayya and Others, , clinches the subject by observing--
An order of remand has an independent existence and is not submerged or dissolved in the final decree. A separate right of appeal is provided
against such an order. Not only, is a right of appeal provided bv Order 43, Rule 1, Clause (u) but an obligation is cast by Section 105(2). C. P.
Code, upon a person dissatisfied with an order of remand to appoal against it on pain of losing his right to object to the propriety or the
correctness of the order or the findings on which it is based in the later stages of the litigation.
It is significant to note that according to the learned Judge ""the propriety or the correctness of the order of the findings on which it is based"" can
only be canvassed in an appeal under Order XLIII. Rule 1 (u), C. P. C. This was approved later by a Division Bench of our Court in
Venkatarama Iyer v. Unnamalal Animal. ILR 1951 Mad 835 A1R 1951 Mad 883 . We need not multiply further authorities. All the case law
starting from I.L.R.(1881) All 675 is one way. In my view. It is now well settled that a litigant in order to avoid the prescribed statutory bar in
Section 105(2), C. P. C., can and indeed ought to file an appeal: against an order of remand, but the only limitation in the conspectus of the ratio of
the decisions cited is that in such an appeal under Order XLIII, Rule 1 (u), C. P. C. he can agitate not only the lega-lity or propriety of the order of
remand, but also the findings of fact attendant upon the remit order.
Learned Counsel for the appellants seriously contended before me however that in such a civil miscellaneous appeal, the findings of fact other
than those relating to the order of remand, could be pressed into service. In the view that 1 have held, it is not necessary to consider them. If it
could be gone into, it should be as if this Court were hearing a second appeal. See Seshammal and Others Vs. Kuppanaiyyangar and Another, .
Even otherwise, in C. M. A. 294 to 298 of 1964, both the Courts below concurrently found that the respondents are iruwaramdars, who had
the benefit of Swamibogam and were dealing with the property in their own right in othis and sale deeds. The estate in question is admitted to be a
post-1936 estate. According to the well-known decisions rendered by our Courts in Periannan and Others Vs. Airabadeeswarar Soundaranayagi
Amman Kovil of O''Siruvayal and Others, and T. Govindaswamy Naidu Vs. The Tanjore Palace Devasthanam, , even in the case of a whole mam
village becoming an estate under Act XVIII of 1936 there can be private lands which are domain or home farm lands of the land-holder. The mere
fact that the land-holder is an absolute land-holder is not decisive -- See State of Madras Vs. Sulaika Beevi Ammal and Others, . In dealing with
pannai lands which became an estate by virtue of the 1936 Amendment Act, Srinivasan, J., in Ramachandra Chet-tiar v. Karuppiah, (1964) 77
MLW 32 , observed--
In so far as pannai lands are concerned, it is not necessary that the land-holder should establish continuous cultivation, for the lands were
undoubtedly at their inception one in which the land-holder held both the rights. In such an event, what has to be shown is something of a negative
nature, that is to say, that no other person had been conferred with occupancy rights therein. That would he already indicated by such acts as
dealing with the property.
In the instance case, even the presumption arising u/s 185 of the Madras Estates Land Act, 1908, is favourable to the respondents and found to be
so having regard to the othis and other dealings had by the respondents. Ven-katadri, J., in W. P. Nos. 1316 and 1317 of 1963 and 135 to 145
and 928 of 1965 (Mad), following the well-known decision of this Court, observed--
In W. P. 521 of 1957, it has been observed that the description of the lands as Iruwaram in the sale deeds can be taken into consideration, as
other evidence u/s 185 (3) of the Estates Land Act The sale deeds can also be taken into consideration along with other evidence to consider the
character of the land. In W. P. No. 340 of 1961 Veeraswami, J., has held that Kudi othis could conclusively point to an assertion on the part of
the land-holder to treat the lands as pannai or private"".
I have adverted to these decisions only to affirm that the Courts below came to the correct conclusion as regards the character of the land and as
to the rights of the respondents. Even otherwise, the appellants'' contentions cannot be accepted.
As regards the facts revolving around the remit order in C. M. A. 294 to 298, there is nothing palpably irregular and improper necessitating an
interference. Having found that the relationship of the landlord and tenant does not exist between the respondents and the appellants the lower
appellate Court was constrained to send back the suit for the reckoning and quantification of the mesne profits. This is but a natural corollary to the
finding as above. No doubt, the lower appellate Court could have undertaken the enquiry by itself, but it does not tantamount to shirking the
responsibility, if the parties are given the liberty to make consequential amendments in the pleadings and secure the rightful relief after full hearing in
the trial Court. The remit order is therefore well founded and C. M. A. Nos. 294 to 298 of 1964 are dismissed. But there will be no order as to
costs.
In C. M. A. No. 276 of 1964 the remit order of the lower appellate Court relates to the issue whether the release deed which was filed in the
lower appellate Court was admissible or not and for a reconsideration of the issue of the alleged remarriage. The lower appellate Court allowed
the interlocutory application filed for the reception of a document filed before it and this was done in the interests of justice. In such circumstances,
the lower appellate Court remitted the suit for a fresh trial on a point concerning the alleged forfeiture of rights in the properties by Rajammal due to
the alleged remarriage. Incidentally, the question also has to be viewed in the light of the alleged release deed directed to be received by the lower
appellate Court as additional evidence. It is in such circumstances that the lower appellate Court could not agree with the judgment and decree of
the trial Court and set it aside in full. As in its opinion, a fresh examination was necessitated as regards the material issues in the case, it remitted the
suit for fresh trial. This is not a case in which it could be said that the first appellate Court shirked its responsibility. In fact, in all fairness, it gave
liberty to both parties, to adduce oral and documentary evidence afresh, I do not therefore think that the remit order is in any way illegal, improper
and irregular. C. M. A. No. 276 of 1964 is therefore dismissed. There will be no order as to costs. No leave.