IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.11. 2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.2574 of 2008 and M.P.No.1 of 2008 1. Shanthiya 2. Durga (Minor) rep. By her guardian, mother Shanthiya .. Appellants/Defendants 2 & 3 Vs. V.Sudamani .. Respondent/Plaintiff . . . Appeal filed under Order 43 Rule 1(v) C.P.C. Against the judgment and decree dated 17.04.2006 made in A.S.No.103 of 2005 on the file of Sub Court, Thiruvarur reversing the judgment and decree dated 30.11.2004 made in O.S.No.33 of 2004 on the file of the District Munsif Court,Thiruvarur. . . . For Appellants : Mr. J.Nandagopal For respondent : Mr. P.Dharmaraj Mr.V.Srikanth, Spl.G.P. For HR & C.E. . . . JUDGMENT Defendants are the appellants before this Court. The suit in O.S.No.33 of 2004 has been filed by the respondent/plaintiff for the following reliefs: "a. directing the defendants 2 and 3 to execute a sale deed in respect of the under mentioned property in terms of the agreement dated 09.08.1997 for the actual extent after measurement and hand over the peaceful vacant possession of https://hcservices.ecourts.gov.in/hcservices/ the suit property to the plaintiff within a time to be fixed by this Court and in default, b. execute a sale deed on stamp to be furnished by the plaintiff; c. directing the defendants 2 and 3 to pay the costs of this suit to the plaintiff and d. to grant such other reliefs as this Hon'ble Court may be pleased to pass under the circumstances of this case." After full-fledged trial, the suit was decreed. Challenging the same, the defendant/respondent filed an appeal in A.S.No.103 of 2005 interalia contending that the plaintiff has not given the correct extent of the property in the plaint schedule and therefore, the judgment and decree of the Court below is erroneous. Accepting the said contention, the lower appellate Court set aside the judgment and decree of the lower Court and remanded the matter for fresh trial allowing the Plaintiff to amend the pleadings and the suit schedule. The lower appellate Court granted opportunity to both parties to adduce oral and documentary evidence. Aggrieved by the said order, the present appeal has been filed by the defendants/appellants before the lower appellate Court stating that this exercise can be done by the lower appellate Court itself. Therefore, there is no need to remand. 2. On notice, the respondent/plaintiff appeared through his counsel and pointed out that the property, which is the subject matter of the dispute, belongs to the Arulmigu Thiagarajaswamy Thevasthanam at Thiruvarur and the original documents relating to the suit schedule property has to be brought on record for the purpose of determining the issue relating to the extent of the property which is in dispute. According to him the property in dispute was given to the defendants by the Temple. He, therefore, justified the order of remand stating that based on oral and documentary evidence alone the actual extent can be fixed and that too, in the presence of H.R.C.E Department. 3. Mr.Srikanth, learned Special Government Pleader, who appears to H.R & C.E Department was informed as suggested by both the counsel on record and on instruction he stated that the property belongs to the Temple and therefore, the right and entitlement of the parties should be determined based on the records of the H.R.& C.E Department. If the parties implead the H.R.& C.E Department as party defendant, then the correct facts can be placed. 4. In view of he dispute with regard to the extent of the property and the right of the Temple as owner of the property, both parties now agree that the order of remand of the first Appellate Court can be sustained and the trial Court may be allowed to proceed with the trial by allowing the parties to let in necessary https://hcservices.ecourts.gov.in/hcservices/ evidence with regard to the extent of land in dispute, title and interest of the temple in the property under dispute. They stated that the amendment of the suit schedule as directed by the lower Appellate Court has to be done for effective adjudication. 5. In view of the submission made by the counsel appearing for other side and the Special Government Pleader (CS) and since the description of the property has not been properly set out in the plaint schedule, which requires a detailed consideration based on the records of the H.R.& C.E Department, the remand is justified in this case. The appellants and respondent are agreeable to decide the lis by trial on remand and pleaded that they may be permitted to let in evidence by marking relevant documents and to implead H.R & C.E Department as a party to the suit. Therefore, the order of the lower appellate Court is confirmed. The order of remand is, therefore, sustained in the peculiar facts and circumstances of this case. 6. The Trial Court is directed to proceed with the matter as directed by the lower Appellate Court, however, with further direction that as requested by the counsel for the plaintiff, the plaintiff is permitted to implead H.R & C.E Department as a party/defendant to the suit. Parties are at liberty to let in oral and documentary evidence for adjudicating the lis. It is needless to state that the defendants will be entitled to file their objections with regard to any amendment sought for in the plaint schedule. 7. The appeal is ordered accordingly. Connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar PAL To 1. The District Munsif Court, Thiruvarur. 2. The Sub Court, Thiruvarur. https://hcservices.ecourts.gov.in/hcservices/ 3.The Secretary, H.R. & C.E.Department, Mahatma Gandhi Road, Nungambakkam, Chennai-34. +1cc to Mr.P.Dharmaraj,Advocate Sr 66713 +1cc to M/s. J.Nandagopal, Advocate Sr 66712 +1cc to the Special Govt. Pleader Sr 66899 KSK (CO) km/29.12. CMA No. 2574 of 2008 https://hcservices.ecourts.gov.in/hcservices/