Yaswanth Rao vs S. Subbdraya Maniyakaran

Govardhan, J.—Defendant is the appellant. This appeal arises out of the judgment passed by the Subordinate Judge, Krishnagiri, dated 31.12.1986 in A.S. No. 18/1984 remitting the suit O.S. No. 363/1980 to the trial court for fresh disposal in the light of the directions given in the judgment.

The case of the plaintiff is as follows: The plaintiff has purchased Rs. No. 55/1 and R.S. No. 55/4 in Nachikuppam Village. R.S. No. 55/2 is a burial ground. R.S. No. 55/3 and R.S. No. 54 belongs to the defendant. R.S. No. 54 is north of R.S. No. 55/1. Originally, R.S. Nos. 54 and 55 and other adjoining lands belonged to the ancestors of the defendant. Subsequently, they have changed several hands. To reach R.S. No. 55, there is a pathway from Nachikuppam, one should pass through the Ones, reach R.S.54 and then through the cart track in R.S. No. 54 he should come. This is a cart tack in existence from time immemorial. The plaintiff was enjoying the same. The defendant has put up a fence on 17.12.1979 and obstructed the pathway. Hence the suit for declaration and injunction.

The defendant in his written statement contends briefly as follows: There is no pathway in R.S. No. 54. R.S. No. 55/6 also belongs to the defendant. When he dug a well in R.S. No. 55/6. the defendant used his bullock cart and when the bullock cart was used, a pathway was created and it belongs to him. According to the defendant, the plaintiff cannot claim any title over the same There is a pathway south of Survey Nos. 158, 159, 63, 160, 161 and 162 and Survey No. 55 could be reached through the pathway in Survey No. 58 through Survey No. 60. According to the defendant, the pathway claimed by the plaintiff is a new one and he is not entitled for easement of necessity.

On the above pleadings, the trial court has held that there is no pathway by prescription and the easement of necessity has not been established and dismissed the suit.

Aggrieved over the same, the plaintiff has preferred the appeal before the learned Subordinate Judge, Krishnagiri. The learned Subordinate Judge, Krishnagiri has held in his judgment that the plaintiff has not established the easement by prescription and there must be an alternative path way as contended by the defendant and the evidence is not strong enough to hold that there is an alternative pathway as contended by the defendant and therefore, in the interests of justice, in order to find out through which pathway, the plaintiffs land could be reached, the matter has to be remanded and on that ground alone the learned Subordinate Judge remanded the matter to the trial court for fresh disposal in the light of the observations and directions in the judgment.

Aggrieved over the same, the defendant has come forward with this Civil Miscellaneous Appeal.

The point for consideration is:

Whether the impugned order of the learned Subordinate Judge, Krishnagiri remanding the matter to the trial court is not sustainable?

Point: This appeal is against the judgment of the lower appellate court remanding the matter for fresh disposal by the trial court. The Learned Counsel appearing for the appellant would argue that the plaintiff has filed the suit claiming a right in the suit pathway on the ground of easement by prescription and easement by necessity and the prescriptive easementary right claimed has not been proved and that the finding given by the trial court to that effect has been accepted by the lower appellate court and as regards the prescriptive right by necessity, the lower appellate court has come to the conclusion that there is an alternative pathway leading to the inference that the easement of necessity does not arise and yet remanded the matter to the trial court for fresh disposal with a direction to examine certain persons who have not been examined and it would amount to filling up the lacuna and the appellate court cannot pass such an order of remand. It is also contended by the Learned Counsel appearing for the appellant that the lower appellate court has not given any finding to the effect that the judgment of the trial court is bad and yet remanded the matter for fresh disposal in the interests of justice and such an order is bad. It may be noted that in paragraph 12 of its judgment, the lower appellate court has observed that the Commissioner appointed by the trial court has given a report to the effect that there is an alternative pathway from Once to R.S. No. 55, through the plaintiff''s land and in paragraph 16, it has observed that there is no acceptable evidence to hold that there is no pathway through the plaintiff''s land as contended by the respondent and these two findings are contradictory to each other. The lower appellate court has also observed that the plaintiff has not examined one Ghouse Sahib and one Bajanthiri Chinnappa through whose lands a pathway is said to pass and the plaintiff has examined one Sankar Rao who belongs to the same community of the plaintiff and one Mahadeva Rao and their evidence is not convincing. According to the Learned Counsel appearing for the appellant, the order of remand made by the lower appellate court with the observation "in the interest of justice" is not tenable, since the discretion of the Court under Order 41, Rule 23 of the Code of Civil Procedure, cannot be exercised in an arbitrary manner but only on sound and reasonable grounds by judicial principles and capable of correction by a court of appeal and 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 which they desire to produce before the trial court. The parties to the suit having not complained that they were not given opportunity to produce all the evidence they have, the lower appellate court itself has come to the conclusion that examination of Ghouse Sahib and Bajanthiri Chinnappa are necessary and the evidence of the witnesses examined is not valid. By directing the plaintiff to examine particular persons, the lower appellate court has only opened the gate to enable the plaintiff to fill up the lacuna and it may even give room for perjury being committed. The expression "interests of justice" does not widen the power of the appellate court to remand the 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 set aside or not if the appellate court is of opinion that "interest of justice" require that there should be a fresh trial, it can remand the suit for fresh disposal. Such a contention is not a valid '', one if we consider Order 41, Rule 23 of the CPC which lays down that the appellate court should first come to the conclusion that the decision of the trial court is liable to be reversed. Since the judgment and decree of the lower appellate court is not to the effect that the decision of the trial court is liable to be reversed for any reason stated by it, in its order, I am of opinion that the lower appellate court has exceeded its power of remand given to it under Order 41, Rule 23 of the Code of Civil Procedure. In that view, I am of opinion that the order of the lower appellate court is liable to be set aside and I hold on the point accordingly. In the result, the appeal is allowed setting aside the judgment and decree of the lower appellate court. The lower appellate court is directed to dispose of the appeal by itself and in the light of the evidence available before it. The parties are directed to bear their own costs.