Rathnasamy Mudaliar (Died) and 2 others vs Rasu

K. Sampath, J.—The C.M.A. has been filed against the order of remand by the Subordinate Judge, Myladuthurai in A.S. No. 12 of 1990

on the file. The first appellant in the Civil Miscellaneous Appeal filed suit O.S. No. 171 of 1983 before the District Munsif, Seerghazi against the

respondent herein for a permanent injunction restraining him, his men and agents from interfering with his possession or in the alternative for

recovery of possession in respect of an extent of 7 cents in R.S. No. 166/4 in 91 Mudikandanallur Village in Tharangambadi Taluk, Myladuthurai

Registration District with 22 Coconut trees, plantains and trees like portia, vaagai and morgoza. Pending C.M.A. he died and his legal

representatives have come on record as appellants 2 and 3. The case as set out in the plaint is as follows:

The suit property was allotted to the plaintiff in a family partition between his paternal uncle and himself to be enjoyed by them jointly and the

paternal uncle having died 40 years prior to the suit without leaving behind any heir or legal representatives, he became the sole owner and in

possession of the same. The defendant / respondent used to work as a casual labourer in his wet lands in the village and as he was creating trouble

demanding higher wages the plaintiff stopped engaging him as a casual labour from January 1983. The defendant had been nurturing the grievance

against the plaintiff from the first week of March 1983. He attempted to cut the trees in the fence line around the suit property. This was prevented

by the plaintiff. He had been coming out from 29.3.1983 that he would cause interference to the plaintiff''s possession of the property. The

defendant is not denying the title of the plaintiff but bend upon causing annoyance to him and the suit is therefore necessitated.

The defendant has filed a written statement and an additional written statement with the following averments;

The title and possession of the plaintiff to the suit property are denied. The defendant is a poor Harijan in possession of 15 Kuzhis for the past 25

years bounded on the North by the Tank and East West and South by Channels. He has put fence all round and the property is in his possession

and lock and key. He has raised the various trees. He is living in the hut built in the property and it is known to everybody in the village. The enmity

mentioned in the plaint is not true. There was no necessity for the defendant to cut the trees belonging to him. The alternative prayer is not

maintainable.

The learned District Munsif Seerghazhi framed the following issues and additional issues on the pleadings;

(1) Whether the plaintiff was in possession on the date of the suit and whether he is entitled to the permanent injunction prayed for by him?

(2) What relief the plaintiff is entitled to?

Additional issues were;

(1) whether the plaintiff would be entitled to the alternative relief of recovery of possession.

(2) whether he would be entitled to the other relief''s prayed for by him.

On the side of the plaintiff Exs.A1 to A6 were marked and the plaintiff besides examining himself as PW1 examined 4 others as PWs.2 to 5.

The defendant marked Exs.B1 and B2, examined himself as DW1 and 4 others as DWs.2 to 5. The Advocate Commissioner''s Report and Plan

were marked as Court Documents 1 and 2 and the Report and the Plan of the Surveyor / Commissioner were marked as Court Documents 3 and

The learned District Munsif after elaborately considering the oral and the documentary evidence held that the plaintiff had established his case of

title, that the defendant had not shown by any acceptable evidence, that he had been in enjoyment and possession of the suit property by

production of the kist receipts alleged to have been issued to him. The learned District Munsif also found that the ''B'' Memos produced by the

defendants were not true documents that there were corrections made in them, that his case that it was poramboke land had not been proved. The

learned District Munsif further found that the plaintiff was in possession of the property and he was entitled to a decree for permanent injunction.

Aggrieved the defendant filed appeal in A.S. No. 12 of 1990 before the Subordinate Judge, Myladuthurai. The learned Subordinate Judge

framed the point for consideration as to whether the plaintiff was entitled to a permanent injunction in respect of the suit property. Before the

learned Subordinate Judge it was contended on behalf of the defendant that when the defendant had specifically disputed and denied the title of the

plaintiffs to the suit property and had also set up a case that he had been in possession and enjoyment of the property for 25 years, the appellate

court ought to have framed the necessary issues in this regard and in as much as the same had not been done by the trial Court, the decision could

not be sustained. It was contended on behalf of the plaintiff before the lower Appellate Court that at the time of framing the issues or at the time the

trial was proceeded with and arguments were heard, it was not contended on behalf of the defendant that additional issues had to be framed, and

having not raised the objection before the trial Court, it was not open to him to raise it at the hearing of the appeal.

The learned Subordinate Judge held that the trial Court ought to have raised issues regarding the title of the plaintiff as also the claim made by

the defendant and framed the necessary issues, permitted the parties to lead evidence and the same not having been done it had become necessary

to set aside the decision of the trial Court and remand the matter to the trial court with a direction to frame two additional issues regarding the title

and the possession of the defendant for 25 years and whether the defendant had prescribed for title by adverse possession, permit the parties to

lead evidence on these issues and decide the suit afresh within a period of 5 months from the date of the order in the appeal.

As against this order of Temand the present appeal has been filed..

It is contended by the Learned Counsel Mr. R. Balakrishnan for appellants that the remand by the Appellate Court was wholly uncalled for, that

the Appellate Court totally lost sight of the fact that the entire evidence bearing on the plea relating to his alleged possession and denial of title by

the defendant/respondent had been exhaustively considered by the trial Court. The Learned Counsel further submitted that he had not pleaded that

he had been in possession for 25 years prior to the filing of the suit and that he had perfected the title by adverse possession. The Learned Counsel

lastly contended that in any event the Appellate Court ought to have decided the matter after re-settlement of the issues under Order-41, Rule-24

instead of remanding the matter. The Learned Counsel in support of his submissions relied on two judgments:

(1) Middi Ramakrishna Rao v. Middi Rangayya and others (AIR 1954 Madras 783 = 1954 MWN 216)

(ii) Gangi Vs. Gian Kaur and others, ;

Though the defendant/respondent had been served, he did not engage any counsel to represent his case therefore Mr. A. Muthukumar

Advocate was appointed as Amicus Curiae to assist the Court in deciding the question. Mr. A. Muthukumar referred to a number of decisions on

the scope of remand under Order 41, Rule 23 of the C.P.C. and submitted that having regard to the facts and circumstances of the case the

remand was not at all justified. Though no issue had been framed by the trial Court, still on the materials produced and the oral evidence let in the

trial Court found title in favour of the plaintiff and that the defendant had no title. Even otherwise, Mr. A. Muthu Kumar contended that it was

wholly unnecessary for the Appellate Court to have remanded the matter without even a finding as to why the decision of the trial Court was

erroneous or wrong.

As regards adverse possession Mr. A. Mulhukumar referred to the text book on ''Law of Adverse Possession'' by Mantha Ramamurthy 2nd

edition page 546 and submitted that there must be specific plea regarding adverse possession and it was for the Court to decide whether there was

a specific plea in the instant case by the respondent in his written statement.

He also referred to the decision of the Allahabad High Court in Municipal Board Etawah v. Mst. Ram Sri (AIR 1931 All 620) and the decision of

this Court in P.V. Karupannan Ambalan v. Pandari Sundara Raja Ayyar (AIR 1940 Madras 71 = (1939) 59 L.W.611). He also referred to

Kakarlapudi Janikiramaraju and Others Vs. Gedala Appalaswami and Others, as to what the expression expressly ""plead"" means.

As far as the contention regarding the lack of pleading is concerned, I had occasion to consider the question in S.A. No. 1661 of 1984

decided on 3.4.1998 and in my view the expression ''adverse possession'' need not specifically find a place in the pleadings as long as the

necessary averments in this regard arc available in the pleadings. If we look at the written statement filed by the defendant, this is what he has

stated in paragraph-2.

The defendant is a poor Harrijan and he is in possession of 0.50 Kuzhis for the past 25 years bounded with south of tank and east and west of

North of channels. He has put the fences all round and put in his possession with lock and key. He also raised the coconut trees, Poovarasu trees,

neem trees, punga trees, tramarind trees, athi trees. There arc house and athimaram. The defendant is living in the hut built in the property. This is

known to everybody in the village. The defendant is in possession of the above 0.50 Kuzhis and he has raised the plantain, coconut, etc.

In my view, these averments are sufficient to constitute the plea of adverse possession, though the words ''adverse possession'' as such have not

been mentioned in the written statement. The contention that there is no plea of adverse possession by the defendant cannot therefore be accepted.

The next question relates to the order of remand passed by the Appellate Court. It is necessary to re-state the principles relating to the scope

of remand by reference to the relevant provisions and various precedents.

Order 41, Rule 23 as applicable to Madras runs as follows:-

Remand of Case by Appellate Court:- 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 interest of justice to remand the case and may further direct what issue or issues shall be tried in the case so remanded, and shall

sent a copy of its judgment and order to the court''s from whose decree and appeal is preferred, with directions to readmit the suit under its original

number in the register of Civil suits, and proceeds 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.

In Kalahasti Veeramma Vs. Prattipati Lakshmayya and Others, Horwill, J. dealing with the scope of remand observed as follows:

The judgment of the trial Court must be so completely incomprehensible as to be of no value at all. Otherwise, the appellate Court has no

jurisdiction to order the trial Court to write another judgment...but under the present rule the appellate Court can also remand the suit if reversing

or setting aside the decree it considers it necessary in the interests of justice to do so.

In Kanjanur Sri Agneswaraswami Devasthanam Vs. Thillai Govinda Pandithan, the learned judge dealing with the questions as to whether

reception of additional evidence would warrant an order of remand observed as follows:

The fact that additional evidence was received would still be no ground for the order of remand and it can be passed only when the appellate

Court has decided that it is necessary to set aside a decree, because the fresh evidence could and should be considered by the appellate Court

together with the evidence already on record. Strict conditions of Order 41, Rule 23 with respect to the reception of additional evidence cannot be

circumvented by a mechanical order of remand.

In Middi Ramakrishna Rao Vs. Middi Rangayya and Others, relied on by Mr. R. Balakrishnan Learned Counsel for the appellant, P.N.

Ramaswamy, J. after an exhaustive reference to a number of decisions summed up as follows-

The power of remand is not an arbitrary one but should be based upon sound and reasonable grounds and the appellate Court should not rashly

and without sufficient cause direct remand of the suit. The mere fact that the evidence on record is not sufficient to enable a court to come to a

finding on a point in issue is not a sufficient ground to justify a remand under Order 41, Rule 23...a remand should not generally speaking be

ordered when the defect in the proceeding has been made due to the negligent or defect of the party who will benefit from the demand...the mere

fact that the evidence on record is not sufficient to enable the 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 the evidence that they desire

to produce before the Court. There is a clear danger that in such cases a remand order may in effect be an invitation to perjury.

In Balasubramania Iyer Vs. Subbiah Thevar and Another, K.S. Ramamurthi, J. stated the law as follows:

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 some 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. Ends of justice require that a party litigant who had

incurred expenses and undergone all the ordeal and trouble of a protracted trial, in the trial Court should not be deprived of the benefit of the

adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial Court. The tendency on

the part of the appellate Court to remand the suit on slender grounds cannot but be strongly deprecated.

In Subramanian and Another Vs. Kaliammal and Others, J. as the learned Judge then was had this to say;

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...where a remand order is

passed whether in the case where a suit has been disposed of upon a preliminary point or in a case where the 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 judgments and the decree of the trial

Court are 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 and as a consequence thereof remanding the suit for

fresh disposal. 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 it elf 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 interest of justice'' has reference to the appellate Court 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 interest of justice require that there should be a fresh trial, it can remand the suit for fresh

disposal.

In Sow dammal alias Sundarammal Vs. Veerammal and Others, K.S. Venkataraman, J. after a thorough and threadbare analysis of the

provisions and the decisions already rendered under Order 41, Rule 23 has held only after exhausting the provisions under Order 41, Rules 24 to

27 the appellate Court can resort to Order 41, Rule 23 C.P.C. In the words of the learned Judge:

Order-41, Rule-24 deals with a case where the evidence on record is sufficient to enable the appellate Court to pronounce judgment; the

appellate Court may after resettling the issues finally determine the suit. Order 41, Rule 25 deals with a case where it is necessary to take additional

evidence on the fresh issues which are to be framed by the appellate Court. The appellate Court may have the evidence recorded and finding

submitted by the trial Court but should dispose of the appeal itself finally. Order 41, Rule 27 deals with a situation where the parties were

prevented from adducing necessary evidence before the trial Court and with a case where the appellate Court itself wants fresh evidence to be

recorded. There again the appellate Court has to keep the appeal on its file. It is therefore clear from the scheme of the rules that generally

speaking only where it is not possible to apply Order 41, Rules 24-27, a remand should be restored to under Order 41, Rule 23. It should be

noted further that before remanding the case, Order 41, Rule 23 itself contemplates that the appellate Court should reverse or set aside the decree.

Reading the rules together, this provision will not apply to a cease where the District Munsif has considered the entire evidence, but in the opinion

of the appellate Court, a different view ought to be taken of the evidence and the appellate Court is in a position to come to a finding on the

evidence on record. In such a case, It is the duty of the appellate Court to consider the matter as it stands and give its own findings in reversal of

the finding of the trial Court. But that would not justify a remand.

In Annamalai and Another Vs. Narayanaswami Pillai and Another, ) the same learned Judge reiterated the principles and also further held that

there is no inherent power of remand u/s 151 C.P.C.

In Rajappan Vs. Natesan and Another, which is also by the same learned Judge, it has been held that the reception of additional evidence will

not justify an order of remand. The Appellate Court will have to keep the appeal on file and dispose it of alter taking the additional evidence under

Order 41, Rule 28 C.P.C.

In Kannu Naicker and others v. Kalaimani and other (100 L.W.922) K.M. Natarajan, J has observed as follows:

The appellate Court has to consider the entire evidence on record and come to a finding on the question whether any further evidence is required

as per Order 41, Rule 27, C.P.C. The appellate Court has to further set aside the decision of the trial Court.

In Gangi Vs. Gian Kaur and others, it has been held that

the appellate court cannot make order of remand without coming to a conclusion that the decision of the trial court is wrong and that it is

necessary to reverse or set aside the judgment and the decree. It has to consider the evidence on record and then arrive at a conclusion whether

the finding recorded by the trial Court cannot be supported on evidence on record. The appellate Court ought not to reverse the judgment of the

trial Court merely for the purpose of remanding the case. Remand should be ordered if the case falls within the four comers of Order 41, Rule 23

or 23A of the C.P.C. and final judgment cannot be rendered by resorting to the provisional of Order 41, Rules 24 and 25 C.P.C.

From a conspectus of the various decisions referred to above the following guidelines emerge. The Appellate Court must came to the

conclusion on the pleadings or on the evidence placed before it or on law that the judgment and the decree of the trial Court are erroneous and

therefore liable to be reversed or set aside. There must atleast be a finding that there has been a misunderstanding of the pleadings of the parties or

denial or an opportunity to place the materials they wanted to place before the Court in support of their respective claims. In the absence of such a

finding there can be no reversal or setting aside of the judgment and the decree of the trial Court and consequent remand. The Appellate Court

thereafter has to find out under Order 41, Rule 24 whether the evidence on record is sufficient to enable the Appellate Court to pronounce

judgment and if so, after re-settling the issues if necessary finally determine the suit. This it can do even if the previous Court''s judgment has

proceeded wholly upon some ground other than on which the Appellate Court proceeds. In case the previous court has omitted to

(i) frame or try any issue (or)

(ii) to determine any question of fact which in the opinion of the appellate Court is essential to the right decision of the suit upon the merits, the

appellate Court can seek a finding from the trial Court on such issues thus framed by the appellate Court being tried by the Trial Court and then

dispose of the appeal.

(iii) In case where either the parties were prevented from adducing necessary evidence before the trial Court or the appellate Court itself wants

fresh evidence to be recorded, Order 41, Rule 27, C.P.C. can be invoked and evidence recorded by itself or by the trial Court. The appeal has to

be retained by the appellate Court on its file.

(iv) Failing the above, Order 41, Rule 23 is to be invoked and the case remitted. The appellate Court cannot take umbrage under the trite phrase

interest of justice"" and sent back all sundry cases to the trial Court without all the previous requirements having been complied with. Remand is the

exception rather than the rule.

In the present case, the defendant has in his written statement denied that the appellant is the owner of the suit property and that he is in

possession for 25 years at the time of filing of the suit, that he had put fence all round in the suit property, raised coconut and other trees, that he is

living in the hut built in the property and this fact is known to everybody in the village. No doubt, no issue with regard to this was raised before the

trial Court. But the trial Court has gone into the question as to whether the respondent has substantiated his case of possession for 25 years and

found that his case has not been established. Before the lower appellate Court it was contended on behalf of the respondent that the trial Court

ought to have framed an issue with regard to possession of the respondent for 25 years by rising a proper issue and without doing that the trial

Court was in error in deciding the suit against the respondent. It was contended on behalf of the appellant before the lower appellate Court that the

non-framing of an issue was not raised before the trial Court and it was not open to the respondent to put forward the same before the Appellate

Court at the appeal stage. The lower Appellate Court observed that non withstanding the non-raising of the issue before the trial Court, the trial

Court ought to have raised the proper issues with regard to possession of the respondent for 25 years and his prescribing for title by adverse

possession, allowed the parties to adduce evidence and in as much as it had not been done it was proper for the trial Court to raise the issue

regarding title of the appellant and the issue regarding possession of the respondent for 25 years and whether the respondent had prescribed for

title by adverse possession and remanded the matter to the trial Court for decision afresh.

The first question that arises for consideration is whether on the facts and circumstances of the case the remand is justified.

It is contended by the Learned Counsel for the appellant that there is no pleading by the respondent that he had prescribed for title by adverse

possession and the appellate Court was not justified in remanding the matter to the trial Court by framing the issue whether the

respondent/defendant was in possession of the suit property for the last 25 years and had perfected title by adverse possession. The Learned

Counsel further submitted that in any event the Appellate Court ought to have resettled the issues and determined the suit under order 41, Rule 24

of C.P.C. instead of remanding the matter.

Let us now examine whether there is absence of pleading with regard to adverse possession. In Mantfaa Rama Murthy''s ""Law of Adverse

Possession"" 3rd edition page 635 in the chapter relating to plea of adverse possession in a suit the learned author has referred to Mahmoed Sharif

Kasamji Rangawala Vs. Amibai Allabux Rangawala and Another, and observed that the intention of the party concerned is to be gathered

primarily from the tenor and terms of his pleading taken as a whole. A person who claims adverse possession must show on what date he came

into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his

possession continued. He must also show whether his possession was open and undisturbed. These are all questions of fact and unless they are

asserted and proved, a plea of adverse possession cannot be inferred for them. Therefore, in normal cases an Appellate Court will not allow the

plea of adverse possession to be raised before it. There are no doubt some cases in which the plea will be allowed because in some form the

allegation upon which it can be raised was made at the time and the facts necessary to prove the plea were brought before the Court and proved.

In Municipal Board Vs. Mt. Ram Sri and Another, the plaintiffs based their suit on title extending over a period of thirty years. The plaintiffs'' case

was that the first plaintiff was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80/- a month. Plaintiff - 2

was her lessee. The shops were burnt down in June 1926 and the land was laid vacant. They made an application to the Municipal Board for

permission to build again on the land, but this permission was refused on 27th August, 1926, on the ground that the Municipal Board was the

owner of the land and not the plaintiffs. It was held that a plea of adverse possession extending over a period of thirty years could be read into this

claim and, therefore, although it was not specifically raised in the plaint it could be raised at a later stage. In other words, what they had was that

the plea of adverse possession was included in the plea of title. In coming to this conclusion the learned Judges no doubt took notice of the fact that

plaintiffs had clearly stated that actual physical possession of the property in dispute was with them,

This decision was referred to and followed by a learned Single Judge of this Court in S.A. No. 2367 of 1976 by judgment dated 5.2.1980.

In the same book ""Law of Adverse Possession"" at page 637 it is stated as follows:

Law is well-settled that if on construction of the pleading of the parties a case of adverse possession has been made out and such a plea is not

only implicit but also the parties are fully conscious of such a plea, even though the expression ''adverse possession'' has not been used and a

specific issue has not been struck, the final court of appeal, on the basis of findings recorded by the Courts below, can ultimately decide the

question of adverse possession?

In Vasudeva Padhi Khadanga Gam v. Maguni Dewan Bakshi Malta Partulu Gam (ILR 24 Mad 387) it has been held that even if the

nomenclature of adverse possession did not find a place in the pleadings, if it was pleaded that the person had been in possession and enjoyment of

the suit property in his own right, it would be enough pleading of adverse possession.

No doubt, the plea of adverse possession must be raised in the pleading, must be put in issue, evidence let in, opportunity to refute the case

must be made out by the party and availed by the other party. It cannot be allowed to be flung as a surprise on an unsuspecting party for the first

time in appeal.

It has been held in P.V. Karuppanan Ambalam Vs. Pandari Sundara Raja Aiyar, that

when a plaintiff bases his suit on title, he can claim relief on the strength of his mere anterior possession alternatively as an independent ground of

claim by itself. A decree can be passed on the strength of plaintiffs possession even if such possession is not specifically made the ground of relief

in the plaint if the opposite party is not prejudiced to any extent by thee new case being sprung upon him without any previous indication thereof in

the plaint"". The learned fudge observed in para - 72 as follows: -

There is no flexible rule that under no circumstances can be a decree be passed on the strength of plaintiff''s possession unless such possession is

specifically made the ground of relief in the plaint. The cases (extracted) are merely illustrations of the salutary principle that parties should

ordinarily be confined to the case raised by them in their pleadings and that no relief should be awarded on the basis of a new case not disclosed in

the pleadings. The underlying principle is of course that no party should be taken by surprise but should have a fair and adequate opportunity to

meet the case of his opponent.

In Kakarlapudi Janikiramaraju and Others Vs. Gedala Appalaswami and Others, it has been held that the question of adverse possession is

essentially a question of fact. A party relying upon it should expressly plead and ask for an issue to be raised in respect thereof.

If there is no need for elucidation of further facts the stringent condition with regard to absence of pleadings cannot be blindly applied. We have

already noticed that the respondent has specifically pleaded that he had been in possession of the property for 25 years, he had put up a hut that he

is living there and has raised several trees and that this fact is known to everyone in the village. The trial Court has also proceeded on the

assumption and had also gone into the question referred to and discussed the documents filed on the side of the respondent and come to the

conclusion that the respondent land not established his case. As already noticed no issue in so many words was raised. But the parties were aware

of what the respondent''s case was, led evidence and the trial Court decided the question.

The lower Appellate Court, however, ignored the criteria to be satisfied for remitting the matter to the first Court. Indeed as contended by the

Learned Counsel for the appellant, it lost sight of the fact that the entire evidence bearing on the plea of the respondent relating to his alleged

possession and detail of title to the plaintiff had been exhaustively considered by the trial Court and that there was absolutely no need to remand

the matter. The lower Appellate Court ought to have re-settled the issues, if necessary and decided the question.

The lower Appellate Court has also not entered a finding that the judgment and the decree of the trial Court are erroneous on the pleadings or

the evidence placed before it or on law and therefore liable to be reversed or set aside. There is also no finding by the lower Appellate Court that

there was a denial of an opportunity to either of the parties to place the materials, they wanted to place before the Court in support of their

respective claims. The parties also were not prevented from adducing the necessary evidence before the trial Court. It is also not found by the

lower Appellate Court that the trial Court has omitted to determine any question of fact which in the opinion of the Appellate Court is essential to

the right decision of the suit upon the merits.

It has already been noticed that there are sufficient pleadings with regard to title of the plaintiff, possession and enjoyment of the property by

the defendant / respondent and which would satisfy the requirement of pleadings. The order of remand is therefore uncalled for and the same is set

aside. The matter is remitted to the lower Appellate Court for a decision on the issues additionally framed by it on the materials, oral and

documentary evidence on record. The lower Appellate Court is directed to decide the appeal within a period of three months from the date of

receipt of the order in the C.M.A. No costs. Before parting with the case I wish to place on record the excellent assistance rendered by Mr. A.

Muthukumar as Amicus Curiae.