Mariappan vs Muthu

V.M. Velumani, J.—This Civil Miscellaneous Appeal has been filed by the appellant against the Judgment and Decree, dated 02.07.2012, passed in A.S.No.100 of 2011, by the learned Sub-Judge, Devakottai, setting aside the Judgment and Decree, dated 07.01.2011, passed in O.S.No.51 of 2009, by the learned Additional District Munsif, Karaikudi.

The appellant herein filed O.S.No.51 of 2009 on the file of Additional District Munsif Court, Karaikudi, for permanent injunction, restraining the respondent or his agent interfering with possession and enjoyment of suit properties. According to the appellant, the property in question is a Government poramboke land. His father was in possession and enjoyment of the property for more than 60 years. He put up a thatched house and obtained electricity connection. He was paying the electricity charges. The Revenue Officials issued ''B'' Memo and the appellant''s father was paying the charges. After the death of his father, he is in possession and enjoyment of the scheduled property. On 15.03.2009, the respondent threatened the appellant to remove the thatched shed and interfered with the appellant''s peaceful possession and enjoyment of the property. Therefore, he filed the suit for permanent injunction.

The respondent denied all the allegations made by the appellant. According to the respondent, the property in question belonged to the community of the respondent and community Temple is situated therein. They were allotted to the community of the respondent by Copper Plate, by Sethupathi Maharaja. The trees in the suit property were planted and maintained by the community people of the respondent. They also stated that the suit is not maintainable, for not impleading the Government and their community people. Patta has been issued in the name of Trustees of respondent''s community. The property in question is classified as "Valaiyan Kovil" in the Revenue records. The appellant has not stated as to how he got possession of the suit property after separating the same from Valaiyan Kovil. On 07.06.2009, the appellant tried to cut the trees in the suit property. The respondent gave a complaint to the revenue officials. The appellant stopped cutting the trees and filed the present suit. Therefore, prayed for dismissal of the suit.

Based on the pleadings, the Trial Court framed necessary issues. After considering the materials on record, evidence let in, the Trial Court decreed the suit.

The respondent filed A.S.No.100 of 2011 on the file of Sub-Court, Devakottai. The lower appellate Court considering the grounds of appeal, framed points for consideration as to whether the appellant is entitled to the relief sought for in the suit and whether the appeal can be allowed.

The lower appellate Court considered the pleadings, evidence, Judgment and Decree of the trial Court, grounds of appeal and the arguments of the learned counsel for the parties, came to the conclusion that the trial Court has granted permanent injunction without properly considering Ex.P7 and that the said Judgment has to be reversed. The lower appellate Court remanded the matter to trial Court to give an opportunity to the appellant to seek the relief of declaration and to implead the Government and to establish his title to the suit property.

Against the said Judgment and Decree, dated 02.07.2012, the present civil miscellaneous appeal is filed by the appellant.

Heard the learned counsel appearing for the parties.

Considering the pleadings, Judgment and Decree of the trial Court and the lower appellate Court and the arguments of the learned counsel for the parties, the points to be decided in this civil miscellaneous appeal is whether the Judgment and Decree of the lower appellate Court remanding the matter to the trial Court, is liable to be set aside.

The lower appellate Court has power to remand the matter as per Order 41, Rule 23 and 23(a) of the Code of Civil Procedure. At the same time, as per Rule 24, if the evidence on record is sufficient, the appellate Court may determine the case finally. In the present case, the lower appellate Court has remanded the matter to give an opportunity to the appellant to seek the relief of declaration and implead the Government as party defendant. The relief sought for by the appellant is only permanent injunction against the respondent in respect of the suit property. The Court must decide whether the appellant is entitled to the relief sought for by him or not.

As per Order 41 Rule 24 of the Code of Civil Procedure, if evidence is sufficient to decide the suit finally, the appellate Court should not remand the matter. In the present case, the lower appellate Court has stated that the evidence on record is not sufficient to decide the issue finally. On the other hand, the lower appellate Court is directing the appellant to seek new relief. For that reason, the suit cannot be remanded to the trial Court.

In the result, the civil miscellaneous appeal is allowed, setting aside the Judgment and Decree of the lower appellate Court, dated 02.07.2012, made in A.S.No.100 of 2011. The lower appellate Court is directed to decide the question whether the appellant is entitled to permanent injunction in respect of the suit property or not. No costs. Consequently, connected miscellaneous petition is closed.