IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 RSA.NO. 614 OF 2004(F) ----------------------------------- RFA.42/2003 OF SUB COURT, VADAKARA OS.68/1979 OF MUNSIFF COURT, PAYYOLI .................... APPELLANT/(APPELLANT 8TH DEFENDANT) ----------------------------------------------------------- THAZHE PUTHUSSERI MOOSSA, S/O.ABDULLA HAJI, NADUKANDIYIL, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, KAKKATIL, KOZHIKODE DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE RESPONDENT(S): RESPTS. 2 TO 21-DEFENTS 12 TO 15, 7TH PLAINTIFF ---------------------------------------------------------------------------- 1. KALLUVETTUKUZHIYIL ABDULLA, S/O. KUNHI PATHUMMA, CHERAPURAM AMSAM & DESOM, POST- POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT (DIED). 2. RANDUKANDATHIL AMMED, S/O.KUNHAMI, POTHUKANDI THAZHE KUNIYIL HOUSE, CHERAPURAM AMSAM & DESOM, POST-CHERAPURAM, VIA KAKKATIL, KOZHIKODE DISTRICT. 3. RANDUKANDATHIL ASSAINAR, S/O.KUNHAMI, POTHUKANDI THJAZHE KUNIYIL HOUSE, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 4. RANDUKANDATHIL MOIDU, S/O.KUNHAMI, POTHUKANDI THAZHE KUNIYIL HOUSE, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 5. NARIYANKANDI KUNHABDULLA, S/O.KUNHAMMAD, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 6. AMMACHANKANDY PATHU, D/O.KUNHI AYISSA, VATAYAM AMSOM, NITOOR DESOM, POST-VATAYAM, VIA KUTTIYADI, KOZHIKODE DISTRICT. 7. KALLUPURAYIL POCKER, S/O.KUNHI AYISSA, VATAYAM AMSOM, NITOOR DESOM, POST-VATAYAM, VIA-KUTTIYADI, KOZHIKODE DISTRICT. 8. AZHANIPILAVULLATHIL KATHEESA, D/O. KUNHI AYISSA, VATAYAM AMSOM, NITOOR DESOM, POST-VATAYAM, VIA KUTTIYADI, KOZHIKODE DISTRICT. 9. AVULLA, S/O.ANDRAMAN, PUTHALATH MEETHAL HOUSE, CHERAPURAM AMSOM & DESOM, POST-CHERAPURAM, VIA-KAKKATIL, KOZHIKODE DISTRICT. 10. PATHUMA, D/O.ANDRAMAN, KAYATTUKANDIYIL, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 11. AMMAD,S/O. ANDRAMAN, PUTHALATH MEETHAL, CHERAPURAM AMSAM & DESOM, POST-CHERAPURAM, VIA KAKKATIL, KOZHIKODE DISTRICT. 12. MOOSA, S/O.ANDRAMAN, PUTHALATH MEETHAL, CHERAPURAM AMSAM & DESOM, POST-CHERAPURAM, VIA KAKKATIL, KOZHIKODE DISTRICT. 13. HAMEED, S/O.ANDRAMAN, PUTHALATH MEETHAL, CHERAPURAM AMSAM & DESOM, POST-CHERAPURAM, VIA KAKKATIL, KOZHIKODE DISTRICT. 14. ANGADIPARAMBATH BIYYATHU, D/O.MOOSA, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 15. ANGADIPARAMBATH ABDULLA, S/O.MOOSA, CHERAPURAM AMSAM & DESOM, POSOT POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 16. PARAKKAL MARIYAM, D/O. MOOSA, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 17. ANGADIPARAMBATH AMMAD, S/O.MOOSA, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 18. VALIYAKANDATHIL AYISSA, D/O.MOOSA, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 19. KOLLANKANDY NABEESA, D/O.MOOSA, CHERAPURAM AMSAM & DESOM, POST-POOLAKKUL, VIA KAKKATIL, KOZHIKODE DISTRICT. 20. OYIGILOT KUNHAMI, D/O.MOOSA, P.O.VELAM, VIA KUTTIYADI, KOZHIKODE DISTRICT. ADDITIONAL RESPONDENTS IMPLEADED: -------------------------------------------------------- 21. KALLUVETTUKUZHIYIL KUNHAMI HAJJUMMA, POST POOLAKKUL, VIA KAKKATTIL, KOZHIKODE DISTRICT. 22. KALLUVETTUKUZHIYIL AMMAD MUSALIAR, PUTHENPURAYIL HOUSE, POST POOLAKKUL VIA KAKKATIL , KOZHIKODE DISTRICT. 23. KALLUVETTUKUZHIYIL ANTHRU HAJI, PUTHENPURAYIL HOUSE, POST POOLAKKUL VIA KAKKATIL KOZHIKODE DISTRICT 24. KALLUVETTUKUZHIYIL KADEEJA, W/O. MOOSA, “SUBAIDA MANZIL, PERAVOOOR, POST KAKKAYANGADU, PIDANGODU, KANNUR DISTRICT. 25. KALLUVETTUKUZHIYIL HAMEED, POST POOLAKKUL VIA KAKKATIL KOZHIKODE DISTRICT. 26. KALLUVETTUKUZHIYIL NABEESA, W/O. AMMAD, KAPPACHERI HOUSE, POST POOLAKKUL, VIA KAKKATIL KOZHIKODE DISTRICT. ADDITIONAL RESPONDENT NOS.21 TO 26 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED FIRST RESPONDENT VIDE ORDER DATED 20.7.2007 IN I.A. NO.2613 OF 2006. ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE FOR R5 SRI.K.MOHANA KANNAN FOR R5 SRI.M.A.ZOHARA FOR ADDL.R 1TO 26 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.02.2010, THE COURT ON 12.3.2010 DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. No.614 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of March, 2010 J U D G M E N T --------------------- This litigation which has a chequered career to its credit started in the year 1966 though dispute started even much before that. This is the second time this case is coming up before this Court in the Second Appeal though parties had the privilege of coming to this Court on other occasions also challenging or supporting certain interlocutory orders passed by the trial court. The suit was originally filed by plaintiff Nos.1 to 6 with the present plaintiff as defendant No.7 and the contesting defendant as defendant No.8 for partition and separate possession. They claimed that the suit property belonged in jenm to Moorchilot tarwad under which Puthukkudi Bavachi obtained a right of tenancy. He executed Ext.A1, kanom kuzhikanom assignment deed dated 2.9.1899 in favour of his son, Puthukkudi Ammad who had no male issues and died intestate. His tenancy right devolved on his legal heirs - daughter, Mariyam getting 6/9 shares brother, Avulla Haji getting 2/9 shares and the remaining 1/9 share going to his sister, Mariyam. Plaintiff Nos.1 to 6 and defendant Nos.1 to 6 are legal R.S.A. No.614 of 2004 -: 2 :- representatives of sister, Mariyam. Thus, 1/9 share belonged to plaintiff Nos.1 to 6 and defendant Nos.1 to 6. It is their further case that daughter, Mariyam and brother, Avulla Haji (of Puthukkudi Ammad) assigned their 8/9 shares to defendant No.7 (plaintiff) as per Ext.B2, assignment deed dated 12.8.1965 while defendant Nos.1 and 2 assigned their fractional interest in the 1/9 share to defendant No.8. Plaintiff Nos.1 to 6 sought partition and separate possession of their fractional interest in the 1/9 share claiming that they along with other co-owners (defendant Nos.1 to 8) are in joint possession and enjoyment of the suit property. Defendant No.8 contended that Puthukkudi Bavachi or his son, Puthukkudi Ammad had no right, title, interest or possession over the suit property and hence legal heirs of Puthukkudi Ammad have not acquired any right by inheritance. He claimed that Mariyam, sister of Puthukkudi Ammad predeceased the latter and hence defendant Nos.11 to 18 (original plaintiff Nos.1 to 6) and defendant Nos.1 to 6 could acquire no right in the suit property. It is also contended that at the time of death of Puthukkudi Ammad his second wife, Combi Mariyam was alive, later she also died and without her legal heirs on the party array the suit is liable to be dismissed for non-joinder of necessary R.S.A. No.614 of 2004 -: 3 :- parties. Defendant No.8 claimed that the suit property (which according to him is only about 52 cents) originally belonged to Vadakkedath Ammad as per a registered document dated 11.2.1925. Defendant No.1 and her husband, the late Puthukkudi Anthruman (who is the son of Mariyam, sister of Puthukkudi Ammad) got the property on oral lease from the said Vadakkedath Ammad on Thulam 15, 1118 M.E. for a rent of Rs.2/- per month. Vadakkedath Ammad assigned his right to the said Puthukkudi Anthruman as per a registered document dated 03.03.1952. While defendant No.1 and her husband, Puthukkudi Anthruman were in possession and enjoyment of the property, Puthukkudi Anthruman created lease of the same in favour of defendant No.1 (his wife) and defendant No.2, their son as per a registered lease deed dated 20.4.1965 for a period of 12 years fixing rent of Rs.50/- per year. On the death of Puthukkudi Anthruman his right over the property devolved on defendant Nos.1 and 2. Defendant Nos.1 and 2 assigned their right in the suit property to defendant No.8 as per registered document dated 5.6.1965. Thus the suit properly absolutely belong to and is in the possession of defendant No.8. He purchased jenm right over the property from the Land Tribunal as R.S.A. No.614 of 2004 -: 4 :- per purchase certificate dated 1826 of 1978. Defendant No.8 contended that defendant No.7 (plaintiff) had earlier filed O.S. No.660 of 1966 for partition of the very same property with himself and others on the party array and that suit was withdrawn without getting leave of the court to file a fresh suit and hence the present suit is not maintainable in view of Order XXIII Rule 1(4)(b) of the Code of Civil Procedure (for short, “the Code”). He further contended that he had filed O.S. No.392 of 1966 against original plaintiff Nos.1 to 3, 5, defendant Nos.1, 2 and others (defendant No.7, transposed as plaintiff was not a party in that suit) and though the suit was dismissed by the trial court he got a decree for protection of his possession in the appeal and hence the present suit is barred by res judicata. He also contended that right of plaintiffs and defendant Nos.11 to 18 if any in the suit property is lost by adverse possession and limitation. 2. Defendant No.7 (plaintiff) while supporting derivation of title pleaded by defendant Nos.11 to 18 (originally plaintiff Nos.1 to 6) claimed 8/9 shares in the suit property he having purchased the share of Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad as per Ext.B2, assignment deed dated R.S.A. No.614 of 2004 -: 5 :- 12.8.1965. It is also his case that while so in the year 1965 there was a dispute between himself and defendant No.8 as to right and possession of the property and the dispute was mediated and settled. As per that, defendant No.7 (plaintiff) is in possession of the northern half of the suit property along with the house situated thereon while the southern half was put in the possession of defendant No.8. Defendant No.8 is only a co-owner and his purchase of the jenm right is on behalf of other co-owners and at any rate, defendant No.7 (plaintiff) is not a party to the proceeding of the Land Tribunal which resulted in issue of purchase certificate No.1826 of 1978. Defendant No.7 (plaintiff) claimed his 8/9 shares in the suit property. He also has a purchase certificate to his credit from the Land Tribunal. 3. With the above pleadings contesting parties went for evidence. It was revealed from the evidence (Exts.B4 and B5) that Mariyam, sister of Puthukkudi Ammad had predeceased him and hence her legal representatives plaintiff Nos.1 to 6 and defendant Nos.1 to 6) could not inherit any right in the suit property. It also turned out that in that situation if case of defendant Nos.7 and plaintiff Nos.1 to 6 were correct, legal representatives of R.S.A. No.614 of 2004 -: 6 :- Puthukkudi Ammad who could inherit the property were his daughter, Mariyam and brother, Avulla Haji whose right defendant No.7 (plaintiff) purchased as per Ext.B2 dated 12.8.1965. In the meantime, plaintiff No.2 died and her legal representatives were impleaded as additional plaintiff Nos.8 to 10. At that stage defendant No.7 applied for and got himself transposed as supplemental plaintiff No.7) and plaintiff Nos.1, 3 to 6 and 8 to 10 were transposed as defendant Nos.11 to 18. In the meantime responding to the contention of defendant No.8 that legal representatives of Combi Mariyam were necessary parties, they were impleaded as supplemental defendant Nos.9 and 10. Learned Munsiff held that going by the evidence (Exts.B4 and B5) Mariyam, sister of Puthukkudi Ammad had predeceased him, defendant Nos.11 to 18 (plaintiff Nos.1, 3 to 6 and 8 to 10) and defendant Nos.1 to 6 who are legal representatives of the said Mariyam could not acquire any right by inheritance and since according to defendant No.7 (plaintiff) Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad assigned their right in favour of defendant No.7 (plaintiff) the latter should be taken as the absolute owner of the suit property in which case a suit for partition would not lie. The suit was R.S.A. No.614 of 2004 -: 7 :- dismissed. Defendant No.7 (plaintiff) took up the matter in appeal (A.S.No.117 of 1984). In that appeal he filed an application for amendment of the plaint to incorporate a prayer for recovery of possession of the suit property. First appellate court dismissed the application and later dismissed the appeal as well agreeing with view of the trial court. Defendant No.7 (plaintiff) challenged that judgment and decree in this Court in Second Appeal No.287 of 1990. It was contended that even if it is assumed that a suit for partition as such would not lie, defendant No.7 (plaintiff) having claimed only 8/9 shares in the suit property (even if he may have been entitled to the entire property) he is entitled to get that much share in the suit property. This Court allowed the Second Appeal by way of remand observing that if the contention of defendant No.7 (plaintiff) were to be accepted he is entitled to get 8/9 shares (which alone he claimed in the suit) and it must be taken that he has relinquished his right over the remaining 1/9 share. This Court observed that trial and first appellate courts were not justified in dismissing the suit and instead, should have granted a decree for 8/9 shares if case of defendant No.7(plaintiff) were accepted, by ordering a partition. This Court did not interfere with the R.S.A. No.614 of 2004 -: 8 :- dismissal of the application for amendment to incorporate a prayer for recovery of possession. Case went back to the trial court. After remand defendant No.7 (plaintiff) produced certain revenue receipts and receipts for alleged payment of pattom to the jenmi. Trial court came to the conclusion that defendant No.7 (plaintiff) acquired title and possession over the suit property, plea of adverse possession and limitation raised by defendant No.8 is not sustainable and passed a preliminary decree for partition and separate possession of 8/9 shares claimed by defendant No.7 (plaintiff). That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal. 4. The following substantial questions of law are framed for a decision: (i) Is the renewal as per Ext.A8 in 1965, of a lease which commenced before 1.4.1964 hit by Section 74 of the Kerala Land Reforms Act (for short, “the KLR Act”)? (ii) Is not the suit barred by the dismissal of O.S. No.660 of 1966 (filed by the same plaintiff for the same relief) as withdrawn R.S.A. No.614 of 2004 -: 9 :- as per Ext.B10, order when permission to institute a fresh suit was not granted to the plaintiff? (iii) Has not the suit abated due to non- impleadment of the legal representatives of defendant Nos.9 and 10 and is not the suit barred by non-joinder of necessary parties? (iv) Have not the courts below acted illegally in holding in favour of title claimed by defendant No.7 (plaintiff) in view of the nature of the documents produced by him and the preliminary evidence produced by defendant No.8? (v) Have not courts below acted illegally in holding that defendant No.7 (plaintiff) was in possession of the suit property in view of the facts even as admitted by defendant No.7 (plaintiff)? (vi) Have not courts belong gone wrong in not holding that defendant No.8 has R.S.A. No.614 of 2004 -: 10 :- perfected title by adverse possession and limitation? 5. I shall deal with the question whether dismissal of O.S.No.660 of 1966 without giving liberty to file a fresh suit as evidenced by Ext.B10, order operated as a bar against institution of the present suit. Learned Senior Advocate, Shri T. Krishnanunni appearing for appellant/defendant No.8 has referred to me the provisions of Order XXIII Rule 1(4)(b) of the Code which stated that if the plaintiff abandoned the suit or part of the claim or withdrew from the suit or part of the claim without permission referred to in sub-rule (3) he shall be precluded from instituting a fresh suit in respect of the subject mater or part of such claim. According to the learned Senior Advocate Ext.B10, order dated 30.1.173 in O.S. No.660 of 1966 would show that invoking the power under Sec.151 of the Code learned Munsiff permitted defendant No.7 (plaintiff) to withdraw that suit for partition without reserving any right to file a fresh suit and hence the suit at the instance of defendant No.7 (plaintiff) cannot be maintained. Learned Senior Advocate has placed reliance on the decisions in R.Ramamurthi Aiyar v. R.S.A. No.614 of 2004 -: 11 :- Raja V.Rjeshwararao (AIR 1973 SC 643) and Manohar Singh v. Sardar Bai (AIR 1987 Rajasthan 177). It is also the contention of learned Senior Advocate that in O.S.No.660 of 1966 defendant No.8 had resisted the suit setting up independent title for himself and raising a plea of adverse possession and limitation and it is thereafter that defendant No.7 (plaintiff) sought withdrawal of the suit and hence it cannot be said that cause of action for seeking partition continued even after the disposal of O.S. No.660 of 1960. Reliance is placed on the decision of the Delhi High Court in S.Jaswant Singh v. S.Darshan Sing (AIR 1992 Delhi 78). Learned Senior Advocate, Shri P.N.K. Achan appearing for defendant No.7 (plaintiff) contended that no question of bar of the suit under Order XXIII Rule 1 (4) (b) of the Code arose. 6. This Court in Order of the Holy Cross v. Fr.Lonappan Thatathil & Another (1989 (2) KLJ 360) has stated that the expression, “subject matter of the suit” occurring in Order XXIII Rule 1(4) of Code meant plaintiff’s cause of action in the suit and if that be so, a suit on a different cause of action in respect of the same subject matter is not barred. A reading of Ext.B10, order shows that defendant No.7 (plaintiff) who was R.S.A. No.614 of 2004 -: 12 :- plaintiff in O.S. No.660 of 1966 sought permission of the court to withdraw that suit on the ground that in view of the contentions raised by defendant No.8 he had to get several documents to prove his contentions for which he found time to be too short since the case had already been brought up for trial in the list along with O.S. No.392 of 1966 filed by defendant No.8 seeking decree for prohibitory injunction against some of the parties in O.S. No.660 of 1966 (defendant No.7 (plaintiff) was not a party in O.S. No.392 of 1966) trespassing into the suit property. Application was opposed by defendant No.8 and at the time of hearing learned counsel for defendant No.7 (plaintiff in O.S.No.660 of 1966) gave up the prayer for permission to file a fresh suit. Noting that, trial court held that in that situation application can be treated as one filed under Sec.151 of the Code and permission to withdraw the suit was granted at the risk of defendant No.7 (plaintiff in that suit) without reserving right to file fresh suit. It is thereafter that plaintiff Nos.1, 3 to 6 and 8 to 10 (now transposed as defendant Nos.11 to 18) filed the present suit for partition and defendant No.7 got himself transposed as plaintiff while plaintiff Nos.1, 3 to 6 and 8 to 10 moved on to the defence as defendant Nos.11 to 18. Though the R.S.A. No.614 of 2004 -: 13 :- suit is not instituted by defendant No.7 (plaintiff) so far as a suit for partition among co-owners is concerned there could be no distinction between a plaintiff or defendant and hence when defendant No.7 (plaintiff) claimed 8/9 shares and separate possession he was also in the position of a plaintiff and hence he being on the side of defendants or defendant Nos.11 to 18 as plaintiffs could not exclude the application of Order XXIII Rule 1(4)(b) of the Code if it were otherwise applicable. At least that provision should apply when defendant No.7 got himself transposed as plaintiff and plaintiff Nos.1, 3 to to 6 and 8 to 10 moved on to the defence as defendant Nos.11 to 18. But I am afraid, a contention based Order XXIII Rule 1(4)(b) of the Code is not available to defendant No.8 at this stage. Reason is that bar of suit under Order XXIII Rule 1 (4)(b) of the Code was not highlighted by defendant No.8 either in the trail or first appellate court (before remand) and at any rate, not before this Court in S.A. No.287 of 1990. After hearing counsel on both sides this Court directed that assuming that defendant No.7 (plaintiff) is the absolute owner of the property he has claimed only 8/9 shares in the property and if his title is upheld and claim of defendant No.8 that it is lost by adverse R.S.A. No.614 of 2004 -: 14 :- possession and limitation is not found in favour, there is nothing illegal in defendant No.7 (plaintiff) being given his 8/9 shares in the suit property. In that view of the matter judgment and decree of the courts below were set aside and the case was remitted to the trial court for fresh decision. In paragraphs 3 and 4 of the judgment this Court observed, “It appears to me that there is no necessity to allow the amendment in this case. In my view even if the court finds that the additional 7th plaintiff is the absolute owner of the property and that he has claimed only recovery of 8/9 shares therein, there is absolutely no impediment in granting him a decree for partition. It would only mean that the appellant has not claimed the full relief he would have been entitled to but he is satisfied with a lesser relief. The courts below have clearly noted illegality in refusing to consider the case of the appellant on merits on a view that the suit for partition could not be maintained. Apart from illegality the decision also shows lack of imagination. If it was a question of court fee, the courts below could R.S.A. No.614 of 2004 -: 15 :- have called upon the appellant to pay the appropriate court fee. In view of the fact that the additional 7th plaintiff has claimed only 8/9 shares in the property and did not chose to claim the full relief when he got himself impleaded as additional 7th plaintiff, it must be taken that he has relinquished his earlier claim over 1/9 share in the property. In that view I do not think it necessary or proper to permit the appellant to amend the plaint to seek recovery of possession. Therefore I am not inclined to interfere with the order of the lower appellate court regarding the refusal of the prayer for amendment of the plaint.” It is taking that view that case was remanded to the trial court and direction was issued to the trial to “consider the issue of title to the property and also the question as to whether the title of the plaintiff (if any) is barred by adverse possession. To obviate any future protraction in this proceeding the trial court will enter findings on both these questions whatever may be the view it may came to on the question of title. If it is found that the plaintiff has title and that R.S.A. No.614 of 2004 -: 16 :- it is not lost by him by adverse possession the appellant would be granted a decree for partition notwithstanding the fact that it is found that he has absolute title over the property”. In the operative portion this Court has directed that trial court has to conduct fresh trial and disposal in accordance with law “in the light of what I have stated above and untrammelled by any of the observations contained in the judgments challenged in this Second Appeal”. In other words judgment by way of remand directed the trial court to consider two issues: whether appellant (defendant No.7) has title over the property and if so it is lost by adverse possession and limitation. Trial court as well as the first appellate court were bound by the remand which became final and consider those issues. This Court entertaining the Second Appeal from the judgment and decree of the first appellate court (after remand) cannot go behind the remand judgment in view of Sec.105 of the Code. Therefore the contention that the suit is barred under Order XXIII Rule 1(4) (b) of the Code in view of Ext.B10, order withdrawing O.S. No.660 of 1966 without permission to file fresh suit cannot be sustained. The question of law framed is answered accordingly. R.S.A. No.614 of 2004 -: 17 :- 7. Next question is whether suit abated due to non- impleadment of legal representatives of deceased defendant Nos.9 and 10 and whether on account of such non-impleadment the suit is to be dismissed for non-joinder of necessary parties. Defendant No.8 raised a contention that in the way defendant No.7 (plaintiff) and plaintiff