IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.03.2011 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CMA.No.2865/2007 1.A.Kannan @ Naganathan 2.A.Siva Appellants/ LR of Plaintiffs 2 and 3 Vs Azhagammal (Died) 1.Govindan 2.Marudhayee 3.Kamatchi 4.Pappathi 5.Chitra Arumugamudaliar (died) 6.A.Sakunthala Respondents 1 to 6/ Defendants 2 to 5 and LR of 4th Plaintiff Prayer:- This Civil Miscellaneous Appeal is filed against the Judgement and Decree dated 19.12.2006 made in AS.No.94/1993 on the file of the learned Subordinate Judge, Ariyalur, reversing the Judgement and Decree dated 9.3.1993 made in OS.No.211/1991 by the learned Additional District Munsif, Ariyalur. For Appellant : Mr.T.L.Thirumalaisami for M/s.Sarvabhauman Associates For Respondent : Mr.Kamadevan-RR1&5 JUDGEMENT For the sake of convenience, the parties are referred to as they were arrayed in the suit and as per their ranking in the suit. 2. This Civil Miscellaneous Appeal is filed by the legal representatives of the Plaintiff against the Judgement and Decree dated 19.12.2006 made in AS.No.94/1993 on the file of the learned Subordinate Judge, Ariyalur, reversing the Judgement and Decree dated 9.3.1993 made in OS.No.211/1991 by the learned Additional District Munsif, Ariyalur. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the Plaintiff is as follows:- The Plaintiff is the owner of the suit property and other properties having purchased the same by way of a registered sale deed dated 30.6.1960 from the previous owners, namely, Pappammal and one Narayanasamy. The total extent in their possession is 2.20 acres in S.NO.149/4 and they have been enjoying the same for the past 30 years and they have also prescribed title by way of adverse possession. The Plaintiff's land is higher in level than that of the Defendants' land and the soils are also different in nature. There is varappu in 'CD' line marked in the plan in the disputed property denoting the enjoyment of the Plaintiff. The Defendants are the southern owners of the suit property and had purchased only 99 cents from the previous owner which lies on the south of 'AB' bund in the plan of the Commissioner. The patta and 'A' register stand in the name of the Plaintiff for 2.20 acres. The Defendants attempted to encroach on the suit property and the same was averted. The disputed property is described as 'ABCD' in the Commissioner's plan. The Plaintiff had ploughed the suit land and cultivated cholam, gingly, thuvarai and mochai. The disputed property was wrongly surveyed as SF.No.149/5 without the knowledge of the Plaintiff. There was no notice before survey and hence, the said survey made by the revenue authorities will not bind the Plaintiff. But, even after the said survey, the Plaintiff continued to be in possession and enjoyment of the disputed property and the Plaintiff's title to the property cannot be divested by the wrong survey of the Revenue Department. Hence, the Plaintiff had filed the suit for declaration and for permanent injunction restraining the Defendants from in any manner interfering with the peaceful possession and enjoyment of the disputed property i.e. the suit land. 4. The Defendants contested the suit by filing a Written Statement, stating as follows:- a. The claim of the Plaintiff's title and possession to the suit property and that the Plaintiff's lands are higher level and that there are varappu and kalli fence on the 'CD' line to denote the enjoyment are all false. The averment that the Plaintiff had purchased the property by virtue of sale deed dated 30.6.1960 of an extent of 2.20 acres is false. The Plaintiff has purchased only 1.65 acres in SF.NO.149/4 and he is in possession and enjoyment of the said extent only. b. The Defendant purchased 99 cents and the adjacent tharisu land by means of a registered sale deed and she is in possession and enjoyment of an extent of 1.73 acres in S.No.149/5 for the past 35 years continuously, openly and without any interruption and as such, prescribed title by adverse possession. 5. On the above said pleadings, the Trial Court framed only two issues, that is, (1) Whether the Plaintiff is entitled to https://hcservices.ecourts.gov.in/hcservices/ the relief of declaration and permanent injunction and (2) To what relief the parties are entitled to? 6. On the side of the Plaintiff, five witnesses were examined as PW.1 to PW.5 and Exs.P1 to P22 were marked. On the side of the Defendants, two witnesses were examined as DW.1 and DW.2 and Exs.B1 to B6 were marked. The Advocate Commissioner's reports and plan were marked as Ex.C1 to C4. On a consideration of the oral and documentary evidence, the Trial Court decreed the suit by granting a decree declaring the title over the disputed property and also permanent injunction restraining the Defendants from interfering with the possession and enjoyment of the Plaintiff over the suit property. Being aggrieved by the Judgement and Decree of the Trial Court, the Defendants filed an appeal in AS.No.94/1993 before the Sub Court, Ariyalur and the first appellate court set aside the Judgement and Decree of the Trial Court on the grounds that the Trial Court failed to frame an issue regarding the question of adverse possession and that the Advocate Commissioner, whose report has been relied on, was not examined before the Trial Court and that the Trial Court based its decision on the assumption from the boundary recitals of third parties and the revenue records like chitta adangal, etc. and remanded the matter to the Trial Court. 7. Mr.T.L.Thirumalasamy, the learned counsel for the Appellants submitted that the lower Appellate Court committed an error in remanding the matter on the ground that the Advocate Commissioner ought to have been examined without considering the other evidence which was available on record. The learned counsel would contend that even in the absence of issue being raised by the Trial Court on the plea of adverse possession, the lower Appellate Court has ample powers to decide all issues and is not debarred from deciding on a point raised the in the pleadings, more particularly, when both parties have produced evidence relating to it. He would submit that each party knew what was their case and had an opportunity of producing evidence on the plea of adverse possession raised by both the parties and the lower Appellate Court ought to have decided the said issue and the other issues left undetermined by the Trial Court on the evidence available on record. In support of his submission, the learned counsel relied upon the following decisions:- 1. 2005-3-MLJ-626 (Bhuvaneswari Vs. Saraswathi Ammal) wherein, a Division Bench of this court has held that when there was enough oral and documentary evidence let in on both sides, an order of remand cannot be for the purpose of remanding a proceedings to the lower court. If it is possible for the appellate court to evaluate the evidence made available on record and come to its own conclusion one way or the other, then it is not open to the lower Appellate Court to come to the aid of the parties for filling up a lacuna which is found wanting in the records. https://hcservices.ecourts.gov.in/hcservices/ 2.1996-11-CTC-539 (Poolar Vs. Gomathi Moopanar and two others), wherein the same view expressed in 2005-3- MLJ-626 was reiterated. 3.2005-3-LW-366 (S.shanmugam Vs. S.Sundaram and four others) wherein a Division Bench of this court has observed that there is no necessity to remand the matter to the Trial Court and that the lower Appellate Court itself can try the matter after taking further evidence if warranted as to the point decided and dispose of the appeal on merits and in accordance with law. 4. 2010-6-CTC-612 ( Sundarajan @ Pichaikaran Vs. Aanji) wherein this court has held that the first appellate court has got ample powers to decide all issues, including appointment of Commissioner, amendment of pleadings, etc. and even if there is any mistake crept in the order of the Trial Court, the same can also be corrected by the first appellate court. It went onto observe that unless there are compelling circumstances, an order of remand should not be passed. 8. Per contra, Mr.Kamadevan, the learned counsel for the Respondents submitted that the Trial Court omitted to frame any issue regarding the plea of adverse possession and therefore, the lower Appellate Court after taking note of other aspects and the fact that the Advocate Commissioner, whose report was relied on was not examined before the Trial Court, had no option except to remand the case to the Trial Court to decide the said issue. He would submit that the lower Appellate Court in the interest of justice has ordered remand in the exercise of its inherent power to do complete justice between the parties and there is no ground for interfering with the order of the lower Appellate Court. 9. I have carefully considered the submissions of the learned counsel on either side and also perused the materials placed on record. 10. A careful study of the provisions of Rule 25 of Order 41 of CPC goes to show that there is no bar in deciding the issues on merits raised in the first appeal before remitting the case to the Trial Court to frame and try any issue which the Trial Court omitted to frame or try the same. A perusal of the judgement of the lower Appellate Court clearly shows that no such objection was taken by the Defendants that the appeal should not be heard on merits and thereafter, when the plea of adverse possession was raised, the first appellate court referred the same to the Trial Court to frame an issue on the plea of adverse possession and decide the same after recording evidence. https://hcservices.ecourts.gov.in/hcservices/ 11. It is settled law that if the issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. On both sides, evidence has been adduced and documents have been marked to substantiate their respective plea. 12. It is no doubt true that the Trial Court did not frame an issue as to the case of the Plaintiff as well as the Defendants as to their plea of perfecting title to the suit property by adverse possession. It is not the case of the Defendants that they were denied opportunity to put forward their evidence. If the lower Appellate Court was of the opinion that the Trial Court did not consider the evidence as it ought to have considered, the court of appeal has undoubted duty to frame appropriate issue and to review the recorded evidence and to draw its own inference and conclusion. The lower Appellate Court cannot remand a case merely because it considered that the reasoning of the Trial Court in some respects was wrong. It could have considered the various aspects of the case mentioned in the judgement of the Trial Court. It could have easily considered the documents and decided about the plea of adverse possession raised by both parties as documents were available on record apart from the report filed by the Advocate Commissioner. 13. At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court reported in Bhairab Chandra Nandan vs. Ranadhir Chandra Dutla (1988-1-SCC-383) wherein it is held that even though formally an issue not framed, but if parties went to trial and adduced evidence keeping that issue in mind and drew attention of the court in that regard, appeal need not be remanded for a finding on that question. In the instant case, the parties have let in evidence and filed documents to show their respective case. Both the parties claim title to an extent over and above what they have purchased. Inasmuch as there is evidence available, the lower Appellate Court, notwithstanding the absence of reasons given by the Trial Court in support of its finding under appeal, ought to have examined the matter on merits and finally decided the same at the appellate stage, instead of remitting the matter to the Trial Court. 14. In 2008-12-SCC-372 ( Bachahan Devi Vs. Nagar Nizam, Gorakhpur) the Honourable Supreme Court has held that the order of remand should not be passed as a matter of routine and the first appellate court which has the power to analyse factual position can decide the issue and the additional issues. The matter could be remitted to the Trial Court only if the appellate court was of the opinion that evidence was insufficient. In the present case, no such inference could be drawn from the findings of the lower https://hcservices.ecourts.gov.in/hcservices/ Appellate Court that additional evidence is required to decide the issue. 15. In the light of the law laid down by the Honourable Supreme Court in the decision in P.Purushotam Reddy and another Vs. Pratab Steels Limited (2002-2-SCC-686) this court is of the considered view that the lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the parties and as laid down by the Honourable Supreme Court , it is not proper for the lower Appellate Court to remand the case to enable the parties to make good their lapse. 16. For the above said reasons, this Civil Miscellaneous Appeal is allowed, setting aside the Judgement and Decree of the lower Appellate Court. The matter is remanded to the lower Appellate Court and the lower Appellate Court is directed to proceed with the first appeal according to law. However, there will no order as to costs. Considering the fact that the suit is of the year 1991, the lower Appellate Court shall dispose of the appeal as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order. The Registry is directed to send back the records immediately. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Srcm To: 1.The Subordinate Judge, Ariyalur 2.The Additional District Munsif, Ariyalur. 3.The Record Keeper, VR Section, High Court, Madras 1 cc to M/s. Sarvabhuman Associates, Advocate, sr. 21020 CMA.No.2865/2007 PVR (CO) kk 14/6 https://hcservices.ecourts.gov.in/hcservices/