Madras High Court
Natesan vs Ammakannu on 28 June, 2022
C.M.A.No.1518 of 2021
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 28.06.2022
CORAM:
THE HONOURABLE Ms. JUSTICE P.T. ASHA
C.M.A.No.1518 of 2021
and
C.M.P.No.7967 of 2021
1.Natesan
2.Govindaraj ... Appellants/Respondents
/Plaintiffs
Vs.
1.Ammakannu
2.Lachymanan
3.Siddaiyan … Respondents/Appellants
/Defendants 1 to 3
Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1
(u) of the Code of Civil Procedure against the Judgment and Decree
passed in A.S.No.19 of 2019 dated 10.09.2020 on the file of the
learned III Additional District Judge, Salem, setting aside the
Judgment and Decree passed in O.S.No.512 of 2018 dated 29.11.2018
1/12
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C.M.A.No.1518 of 2021
on the file of the learned Sub Judge, Omalur and remanding the suit
for fresh disposal.
For Appellants : Mr.R.Jayaprakash
For Respondents : Mr.A.Anbaraj for R1 to R3
JUDGMENT
The appellants have filed the above Civil Miscellaneous Appeal
challenging the order of remand passed by the learned III Additional
District Judge, Salem, in A.S.No.19 of 2019. The parties for the ease
of the understanding will continue to be referred in the same litigative
status as before the trial court.
2.The facts in brief are as follows:
The appellants herein who are the plaintiffs have filed
O.S.No.44 of 2008 on the file of the learned Subordinate Judge,
Mettur, for the following relief:
“(a)declaring that the plaintiffs have got easement
right of cart-way for themselves, their men, carts and
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C.M.A.No.1518 of 2021
cattle to have ingress and egress from their lands in suit
S.Nos.114/4 and 114/5 to the Potthanur to Kariyampatty
Road in S.No.100/2A through the suit cart-way.
(b)restraining the defendants, their men, servants,
legal representatives, successors and derivatives in title
from in any manner preventing the plaintiffs, their men,
carts and cattle from having ingress and egress from the
suit S.Nos.114/5 and 114/4 to the Pothanur to
Kariyampatty Road in S.No.100/2A through the suit
cart-way.
(c)restraining the defendants, their men, servants,
legal representatives, successors and derivatives in title
from in any manner causing obliteration or damage to
the suit cart-way portion,
(d)directing the defendants to restore the suit cart-
way to its original condition within the time to the fixed
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C.M.A.No.1518 of 2021
by this Court and if in the event they fail to do so
directing the plaintiffs to restore the suit cart-way to its
original condition so as to enable the plaintiffs, their
men, carts and cattle pass and re-pass without any sort
of obstruction from the road in S.No.100/2A to their
lands in S.Nos. 114/5 and 114/4 under due process of
Court by executing the Decree.”
3.The subject matter of the suit is the cart track in S.Nos.114/4
and 1114/5, particularly, the right of cart-way from the S.F.No.100/2A
through which the plaintiffs claimed an easement right to reach their
properties comprised in S.Nos.114/4 and 114/5.
4.The plaintiff would contend that they have lands situate in
S.Nos.114/4 and 114/5 over which they are in peaceful possession.
The said Pothanur to Kariyampatti road runs in S.F.No.100/2A and
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C.M.A.No.1518 of 2021
S.No.114/4 lies on the Eastern side of S.Nos.100/3, 100/2B and
100/4. At the same time, the Survey No.114/4 lies on the Eastern side
of S.No. 114/5. The plaintiffs have pleaded that the suit property and
its larger extent was originally comprised in S.No.100/2, which was
the ancestral properties belonging to the joint family of the 1st
plaintiff's grandfather Govindagounder and his two elder brothers
Appugounder and Mutthugounder. The brothers had registered a joint
patta in Old Patta No.24. In 1984 under the UDR scheme, the said
road portion was assigned S.No.100/2A and classified as “epytpay;
rhiy“. The property in which the road runs was dedicated by the
plaintiffs' ancestors for the public use. In the oral partition that took
place 70 years ago access to the Road in S.No.100/2A from
S.No.114/4 and 114/5 an easementary right of cart track has been
provided to the width of 20 feet in the land comprised in S.No.114/5
adjoining the Southern boundary line of S.No.100/2B. The plaintiff
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C.M.A.No.1518 of 2021
would submit that since the defendants were attempting to obstruct
the same the plaintiffs have come forward to file the suit.
5.The defence was that the property has not been properly
identified and described and further, there was no cart track in
existence. The defendants would submit that they are in possession
and enjoyment of the lands in S.Nos.100/2B, 100/3, 100/4, 100/6 and
115, etc., which includes the cart track. The defendants would plead
that the plaintiffs have an alternate pathway to reach their property
and they are entitled to easementary right.
6.The learned Subordinate Judge, Omalur, on considering the
evidence on record had decreed the suit as prayed for. Challenging the
said Judgment and Decree, the defendants 1 to 3 have filed A.S.No.19
of 2019 on the file of the learned III Additonal Distrtict Judge, Salem.
The learned Judge after hearing the elaborate arguments remitted the
matter back to the trial Court for fresh consideration of the dispute
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C.M.A.No.1518 of 2021
between the parties. Challenging the same, the appellants are before
this Court.
7.The learned counsel for the appellants/plaintiffs would
contend that the trial Court has extensively considered the admissions
of DW1 in his Judgment. He would also draw the attention of this
Court to the evidence of the Village Administrative Officer who has
also deposed about the suit cart track. The sketch provided by the
Advocate Commissioner also shows the existence of the cart track.
That apart, both the parties have filed sufficient documents in support
of their case. Therefore, there is no necessity to remit the matter to
the Appellate Court being the final Court, is well within the power to
consider the evidence and pass orders.
8.The learned counsel for the respondents/defendants on the
other hand would contend that there is no clarity with reference to the
schedule of properties. The order of remand would only help both
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C.M.A.No.1518 of 2021
sides. Therefore, he would submit that there is no necessity to set
aside the Judgment and Decree of the Appellate Court.
9.Heard the learned counsel appearing on either side and
perused the papers.
10.The reasons for the remand has been given as follows:
“But the trial Court failed to frame correct issue
No.1. The trial Court failed to state through which had
whether the plaintiffs having easementary right? Was
not mentioned in the Issue No.1. Actually the issue
No.1 did not disclose that the plaintiffs want to use the
cart way through which land, not mentioned in the issue
No.1. The trial Court further failed to mentioned in the
issue No.1 even as a suit cart way. Therefore, the issue
No.1 framed by the trial Court is not ayt all correct and
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therefore in considering the all above circumstances,
the decision of trial Court without ascertaining the
correct and actual dispute between the parties is not at
all sustainable and therefore, the trial Court has to be
framed correct issue No.1 instead of earlier one and
decide the suit afresh by keeping in mind the actual
dispute between the parties. Therefore, it is decided
that the judgment of the trial Court is not at all
sustainable and hence, it is set aside and remand back
this appeal to the trial Court for fresh disposal by
ascertaining the correct dispute between the parties as
stated earlier after giving the both side a reasonable
opportunity for further evidence if any in accordance
with law.”
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C.M.A.No.1518 of 2021
11.The Appellate Court ought not to have remanded the matter
on the ground that proper issues were not framed since the evidence is
already on record and it is open to the Appellate Court to re-frame the
issues and on such basis consider the evidence and pass orders.
12.The provisions of Order 41 Rule 23 of the Code of Civil
Procedure would provide that the order of remand be passed where the
suit has been decided only upon a preliminary point. The provisions of
Rule 24 makes it clear that where the evidence upon record is
sufficient the Appellate Court shall resettle the issues and determine
the suit thereon. The case on hand is not a case where the trial Court
has disposed of the suit on a preliminary point, on the contrary, the
trial Court has framed issues and given findings on the issues raised
by it. The Appellate Court has remanded the matter on the ground
that the issues had not been framed properly by the trial Court. This
is contrary to the provisions of Order 41 Rule 23 of the Code of Civil
Procedure.
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C.M.A.No.1518 of 2021
13.Therefore, the Judgment and Decree of the learned III
Additional District Judge, Salem, in A.S.No.19 of 2019 dated
10.09.2020 is set aside and the learned III Additional District Judge,
Salem, is directed to dispose of the appeal after considering the
evidence available on record. The Appellate Court shall dispose of
the appeal within one month from the date of receipt of a copy of this
Judgment and Decree. No costs. Consequently, connected
Miscellaneous Petition is closed.
28.06.2022
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The III Additional District Judge,
Salem.
2.The Sub Judge, Omalur
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C.M.A.No.1518 of 2021
P.T. ASHA, J,
mps
C.M.A.No.1518 of 2021
and
C.M.P.No.7967 of 2021
28.06.2022
https://www.mhc.tn.gov.in/judis
