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KANNATHAL versus ARULMIGHU KANNIAMMAL

High Court of Madras

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Kannathal v. Arulmighu Kanniammal - CMA (PD) No.1471 of 1999 [2007] RD-TN 84 (5 January 2007)


IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 05.01.2007

Coram

The Honourable Mr. JUSTICE K.MOHAN RAM

Civil Miscellaneous Appeal (PD) No.1471 of 1999

and

C.M.P.No.17306 of 1999

1. Kannathal

2. Rajendran

3. Natarajan

4. Kuppuraj

5. Janaki

6. Vimala Devi .... Appellants

-Vs.-

1. Arulmighu Kanniammal Karuppasamy Thirukoil,

Pothanur Chettipalayam,

Coimbatore

Rep. By its Executive Officer,

A.Kalimuthu, S/o. Appiyanna Chettiar

Chettipalayam, Coimbatore.

2. State of Tamil Nadu

Rep. By the District Collector

Coimbatore  641 018. .... Respondents Appeal against the order of remand of the judgment and decree dated 27.11.1998 made in A.S.No.1 of 1998 on the file of the Principal District Court, Coimbatore remitting the suit O.S.No.1267 of 1987 on the file of the II Additional District Munsif Court, Coimbatore dated 15.07.1997 for fresh disposal. For Appellants : Mr. S.Parthasarathy, Senior Counsel, for Sarvabhavanam Associates. For Respondents : Mr. R.Srinivasan, for R-1. Mr. M.Rangarajulu, Government Advocate, for R-2, J U D G M E N T



Defendants 3 to 8 in O.S.No.1267 of 1987 on the file of the Second Additional District Munsif Court, Coimbatore who were respondents 3 to 8 in A.S.No.1 of 1998 on the file of the Principal District Court, Coimbatore, being aggrieved by the order of remand dated 27.11.1998 made in A.S.No.1 of 1998 have filed the above appeal.

2. For the sake of convenience the parties are referred to as per their ranking in the suit.

3. The case of the plaintiff is as follows:- In Chettipalayam village, Coimbatore Taluk a Temple known as Arulmigu Kanniamman Karuppasami Thirukkovil is in existence for the last 300 years. The main gate of the Temple faces east. There is also a gate on the west of the rear of the Temple which is invariably closed. There are compound walls on all the sides. The only passage to the Temple is on the north along with the elevated portion of a bund. The Temple is situated to the east of the main Coimbatore Chettipalayam Road. Immediately on the north of the Temple a big kuttai measuring an extent of 2 acres is located but its extent got reduced due to the encroachment made by the first defendant. Immediately adjoining the Temple on the north a large area of an elevated portion of kuttai exists. The kuttai belongs to the Government and as a portion has been trespassed upon by the first defendant, the Government has been added as the second respondent as a proforma party and no relief is sought for against the Government. It is the further case of the plaintiff that the elevated portion of kuttai measuring 15 feet east-west lying on the north of the Temple is absolutely necessary to protect the Temple from sudden inundation and it constitute the passage of the Temple for several centuries. The first defendant who was in possession and enjoyment of S.F.No.221 abetting on the north cut a portion of the elevated bund on the north-west corner and obstructed the easy passage to the north and east. S.F.No.221 itself is a classified poramboke for which the first defendant got patta excluding the plan marked kuttai. The first defendant had gradually encroached into the kuttai leaving only the elevated bund of the kuttai and small area on the north and east. After the suit was filed and before the Advocate Commissioner visited the property on 22.06.1987 the first defendant who was then alive destroyed the elevated bund on the north to a distance of about 20 feet east-west and two feet deep making it difficult for the people to reach the Temple. In the said circumstances, the plaintiff filed a suit seeking the following reliefs:- (i) declaring the rights of the plaintiff to use the passages and open spaces marked in the plan. (ii) For a consequential relief of permanent injunction restraining the first defendant (defendants 3 to 8) and / or his men from interfering with the aforesaid rights of his men from interfering with all the aforesaid rights of altering the physical features of the passage of the bund in any manner. (iii) direct the defendants to restore the portion of the bund east-west and 2 feet deep (north-south) with north slope within a time to be fixed by this Court, failing which permit the plaintiff to carry out the same and recover the cost from the defendant by executing the decree and for the cost of the suit.

4. The first defendant contested the suit by filing a detailed written statement contending as follows:- The first defendant is the absolute owner of the lands in S.F.No.532/B-1 measuring 1.2 acres and Survey No.222/1 measuring 8.36 acres and comprised in patta No.423. Survey No.532/B-1 is abetting the Chettipalayam Main Road and Survey No.221/1 is situated on the east of Survey No.532/B-1. The said entire extent lies as a single block bounded on the west by Chettipalayam Main Road by the east-west public itteri in Survey No.655/B and 22 on the north the lands in survey Nos.219 and 222 on the south; and by the east-west car track leading to Survey No.225 (sub-divided as 532/B2 and 221/2) and survey Nos.225 and 224 on the south. Survey No.222 that lies on the east of Survey No.221/1 belongs to one Subbana Gounder and there is a kuttai only in Survey No.223 on the south of Survey No.222. The lands are slopping from north to south and from west to east and therefore for the purposes of convenient enjoyment of the said lands there are north-south and east-west bund ridges in them. There was no water course. Survey No.221/1 measuring 8.36 acres is enjoyed as pucca garden lands. In the survey plans in respect of the lands in Survey No.22/1 no kuttai or water course is shown. The Defendant's 9.62 acres in Survey Nos.532/B-1 and 221/1 are dealt with under the sale deed dated 15.04.1951. The bund on the south western side of Survey No.221/1 was put up by the predecessors of the defendant in their patta land and the same is in a height of about 6 to 8 feet from the ground level slopping on either side with thorny plants in and over it and the bund exclusively belongs to the defendant and it was never used as a pathway or cart track by anyone and it cannot be used as a pathway or cart track as alleged by the plaintiff. There is or was no bund on the north and west of Survey No.225 as alleged by the plaintiff.

5. The Temple is having access only through the east-west cart track bearing Survey Nos.532/B2 and 221/2 running from Chettipalayam Main Road on the west and Survey No.225 on the east for length of 133 and 297 links in a breadth of 22 links. The Temple has always been facing west. The gopuram of the suit-Temple is still facing west and there has been no gopuram or gate on the eastern side. By encroaching into the defendants patta lands in Survey No.221/1 a east-west north compound wall was put up for the Temple in a straight line in the patta land of the defendant in Survey No.221/1 with the permission of the defendant. The mud dug up while putting up the compound wall was heaped in the lands of the defendants on the north and west on an understanding that the same should be removed by the defendant and as such the plaintiff-Temple has no inch of space on the north, west and east of its compound wall. The present Renovation Committee of the Temple opened a gate on the eastern side and has demolished the portion of the compound of the said Temple and has also demolished a portion of the bund on the south eastern side of Survey No.221/B-1 and the Committee wants to encroach further into the lands of the defendant in Survey No.221/1 and only with that view the suit has been filed. The plaintiff has no right on the north, west and east of the suit Temple compound in Survey No.221/1. The allegation that the defendant has encroached into the kuttai is denied. On the above said pleadings the first defendant sought for the dismissal of the suit.

6. Pending the suit the first defendant died and hence his Legal Representatives were impleaded as defendants 3 to 8. A written statement was filed by the sixth defendant which was adopted by defendants 5, 7 and 8 and they adopted the written statement already filed by the first defendant. The defendants contended that the first defendant died long back and the alleged destruction of bund in 1997 is false. The Commissioner visited the suit property on 22.06.1987 but the plaintiff has filed the application for amendment of prayer for mandatory injunction after a lapse of nine years and hence the relief of mandatory injunction sought for by the plaintiff cannot be granted.

7. The second defendant filed a written statement contending as follows:- The various averments and allegations contained in the plaint that the temple is in existence for the past about 300 years, which is owned by Vaidiyar Kootam and that the location of the temple is peculiar and that it is lower in level than the land abetting the temple and that there is only one passage of 15 feet wide east-west road from the main Coimbatore-Chettipalayam Road to the temple and that the kuttai in its extent has been gradually reduced by the first defendant are all denied. But however immediately adjoining the Temple on the north-south there still remains a large area and that a portion of the Government kuttai land has been trespassed upon by the first defendant and that the level of ridge constitute the passage for the temple for several centuries and that the first defendant has obstructed the passage and as such caused nuisance and inconvenience to the Temple and its administration, are all deliberate falsehoods, highly mischievous and misleading. The second defendant is an unnecessary party to the suit. The suit is bad for misjoinder of parties. The plaintiff is not entitled to have any right or title or interest in the way in question since the plaintiff is not the owner of the property. Only with a view to encroach upon the Government property the suit has been filed. There is no cause of action for filing the suit. The suit is not maintainable for want of notice under Section 80 of the Code of Civil Procedure.

8. The Trial Court framed as many as nine issues and during trial three witnesses were examined on the side of the plaintiff and Exs.A-1 to A-12 were marked. On the side of the defendants the first defendant was examined as D.W.1 and one Vellingiri was examined as D.W.2 and Exs.B-1 to B-7 were marked on their side. The Commissioner's report and sketch were marked as Exs.C-1 and C-2. On a consideration of the oral and documentary evidence available on record the Trial Court partly decreed the suit granting a decree declaring that the plaintiff has got right over the cart track from the Coimbatore Chettipalayam Main Road up to the western gate of the Temple and granting permanent injunction against defendants 3 to 8 restraining them from interfering with the right of the plaintiff in using the said cart track and restraining them from changing the physical features of the same and the other reliefs prayed for by the plaintiff were negatived. Being aggrieved by the decree, the plaintiff filed an appeal in A.S.No.1 of 1998 before the District Court, Coimbatore and the Learned District Judge after elaborately considering the evidence on record and the reasonings of the Trial Court set-aside the judgment and decree of the Trial Court and remanded the matter back to the Trial Court directing the Trial Court to afford an opportunity to the plaintiff to amend the plaint and to give opportunity to both the parties to adduce oral and documentary evidence and dispose of the suit afresh. Being aggrieved by that, the defendants 3 to 8 have filed the above appeal.

9. Heard Mr. S.Parthasarathy learned Senior Counsel for the appellants and Mr. R.Srinivasan learned counsel for the first respondent and Mr.M.Rangarajulu learned Government Advocate for the second respondent.

10. The learned senior counsel for the appellants submitted that the Lower Appellate Court has committed an error in remanding the matter only for the purpose of giving an opportunity to the plaintiff to amend the plaint and to adduce additional evidence without recording proper reasons. The learned senior counsel submitted that as sufficient evidence is available on record the Lower Appellate Court should have considered the same and decided the appeal on merits and there was no need to remand and order a fresh trial. The learned senior counsel submitted that the Lower Appellate Court erred in ordering remand merely on the ground that the plaintiff had not pleaded properly regarding their right over the suit pathway and to afford an opportunity to amend the plaint to fill up the lacuna. The learned senior counsel submitted that the Lower Appellate Court has not pointed out any infirmity either in the reasonings or in the findings recorded by the Trial Court and the judgment has not been set-aside for any valid reasons but the judgment and decree has been set-aside only for the purpose of remanding the matter back to the Trial Court and to afford an opportunity to the plaintiff to amend the plaint and to adduce additional evidence. The learned senior counsel further submitted that the Lower Appellate Court has made observations in its judgment touching on the merits of the dispute which will influence the mind of the trial court. According to the learned counsel the higher Court is precluded from giving conclusive findings in matters which it remanded. In support of his submissions, the learned senior counsel relied upon the following decisions:- (i) A.I.R. 1988 Supreme Court 103 (M.S.Jagadambal Vs. The Southern Indian Education Trust and others) in paragraph 11 the Apex Court has observed as follows:- "11. We are not persuaded by the alternative contention urged by the learned counsel for the respondents. The trial court did not frame an issue as to the defendants perfecting title to the suit property by adverse possession. The defendants did not produce any evidence in support of the plea of adverse possession. It is not the case of the defendants that they were mislead in their approach to the case. It is also not their case that they were denied opportunity to put forward their evidence. It is, therefore, not proper for us at this stage to remand the case to enable the defendants to make good their lapse". (ii) 2005 (12) S.C.C. 309 (Raghbendra Bose and others Vs. Sunil Krishna Ghose and others) in paragraph 4 the Apex court has observed as follows:- "4. ... We find that the observations made by the High Court in the impugned order touch on the merits of the dispute. Counsel for the appellants apprehends that the observations made by the High Court would influence the mind of the Commissioner as well as the Collector while deciding the case and the application filed by Respondents 1 and 2 herein. We find substance in this submission. (iii) 2003 (8) S.C.C. 289 (Ravinder Kaur Vs. Ashok kumar and another) in paragraph 21 it is observed as follows:- "21. ... It is not the normal practice of the superior Court to give a conclusive finding in matters which it remands for further consideration because after a conclusive finding there is nothing to be decided by the court to which the matter is remanded". (iv) A.I.R. 1999 Supreme Court 1125 (Ashwinkumar K.Patel Vs. Upendra J. Patel and others) in paragraph 7 the Apex Court has observed as follows:- "7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified". (v) 2005 (12) S.C.C. 351 (K.Gopalan Nair Vs. K.Balakrishnan Nair and others). In that case the High Court had decided the appeal partly in favour of the respondents and remanded the matter for consideration of two issues to be re-decided by the trial court. Before the Supreme Court the grievance of the appellant was that the High Court should have decided the matter on the evidence on record without remitting the matter back to the Trial Court for admission of fresh evidence. While considering the same, the Apex Court has observed as follows:- "Once the trial had been concluded, there was no question of defendants being given a second opportunity to prove their case before the Trial Court, the High Court should have decided the matter on the basis of materials available on record".

11. Per contra the learned counsel for the first respondent only submitted 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.

12. I have carefully considered the submissions made on either side. It has to be pointed out that the Lower Appellate Court has considered the entire evidence on record and has made observations touching the merits of the case which, as rightly pointed out by the learned senior counsel for the appellants, is opposed to the law laid down by the Apex Court in 2005 (12) S.C.C. 309 and 2003 (8) S.C.C. 289 (referred to supra).

13. The Apex Court in the decision referred in the case of 2002 (2) S.C.C. 686 (P.Purushottam Reddy and another Vs. Pratap Steels Limited) while considering the scope of remand under Section 151, Order 41 Rules 23-A, 23, 25 and 27 of the Code of Civil Procedure has laid down as follows:- "10. It was a settled position of law before the 1976 Amendment that the Court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati Vs. Sushila Mahendra Nanavati (A.I.R. 1965 S.C. 364 : 66 Bom LR 681), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the Court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided".

14. In the light of the law laid down by the Apex Court in A.I.R. 1999 Supreme Court 1125 and 2002 (2) S.C.C. 686 (referred to supra) the case on hand has to be considered. After the introduction of Rule 23-A the Appellate Court can order remand only if, (i) the trial court disposed off the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. Only when the said twin conditions are specified the Appellate Court can exercise the power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the Appellate Court cannot have recourse to its inherent powers to make a remand as it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Civil Procedure Code. In this case, the Lower Appellate Court has not found that the judgment of the trial court has not disposed off the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 of the Code of Civil Procedure and hence it is no judgment in the eye of law. Only when the lower Appellate Court comes to such a conclusion it can set-aside such judgment and send the matter back for rewriting the judgment so as to protect valuable rights of the parties as pointed out by the Apex Court. Having elaborately considered the evidence on record the Lower Appellate Court has not pointed out any defect or infirmity in the reasonings of the trial Court in recording its findings on the various issues. The lower Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the Code of Civil Procedure. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.

15. It is also 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. Even if the lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings that opportunity could have been given in the first appeal itself and for that purpose the remand is not needed.

16. In the decision reported in A.I.R. 1979 Supreme Court 551 (Ishwardas Vs. State of Madhya Pradesh and others) the Apex Court has observed as follows:- "4. There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why, it was not sought in the trial Court if the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not available before the Court".

17. In the light of the law laid down by the Apex Court in the decisions reported in A.I.R. 1979 Supreme Court 551 (referred to supra) and 2002 (2) S.C.C. 686 (referred to supra) 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 plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse.

18. For the above said reasons, the appeal is allowed and the judgment and decree of the Lower Appellate Court is set-aside. However there will be no order as to costs. Considering the fact that the suit is of the year 1987 the Lower Appellate Court shall dispose of the appeal as expeditiously as possible, preferably within a period of three months from the date of receipt of the records. The Registry is directed to send back the records immediately. srk

To

1. The District Collector,

State of Tamil Nadu,

Coimbatore  641 018.

2. The Principal District Court,

Coimbatore

3. The II Additional

District Munsif Court,

Coimbatore


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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