Madras High Court
Syed Ameer Ali vs E.S.M.Sithi Fathima on 3 April, 2023
C.M.A(MD)No.367 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.04.2023
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)No.367 of 2020
and
C.M.P(MD)No.4735 of 2020
Syed Ameer Ali ... Appellant/Respondent/
Plaintiff
Vs.
1.E.S.M.Sithi Fathima
Ameer Sadiq (Died)
2.Ammath Saribha
3.Chinnathuneesha
4.Sirajeetha
5.Durrath Pasila
6.Paseera
7.Labeera
8.Abdul Kaseem
9.Fathima
10.Mohammed Saheer
11.Ahammed Jalal
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1/6
C.M.A(MD)No.367 of 2020
12.Yusuf Hussain
13.Abdul Kadar Poogari ... Respondents/Appellants/
Defendants
PRAYER: Civil Miscellaneous Appeal is filed under Order 41 Rule 23
of Code of Civil Procedure, to call for records and set aside the order of
remand in the judgment and decree, dated 27.03.2019 passed in the
appeal in A.S.No.15 of 2012 on the file of the Principal District Court,
Ramanathapuram setting aside the judgment and decree, dated
29.03.2012 passed in the suit in O.S.No.2 of 2005 on the file of the
Subordinate Court, Ramanathapuram remanding the suit to the trial
Court and allow the Civil Miscellaneous Appeal.
For Appellant : Mr.J.Barathan
For R1 : No Appearance
For R2-R13 : Mr.d.Kirubakaran
JUDGEMENT
The present appeal has been filed by the plaintiff in a suit for
declaration of title and permanent injunction challenging an order of
remand passed by the first appellate Court.
2. The plaintiff had filed O.S.No.2 of 2005 before Sub Court,
Ramanathapuram for the relief of declaration of title and consequential
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C.M.A(MD)No.367 of 2020
permanent injunction with regard to 1.14.0 hectares of land in Survey
Nos.268/1A and 268/1B1. The plaintiff had filed Exhibits A.1 to A.28 to
establish that he has title and possession over the property. The plaintiff
had examined himself and one Jamal Sulthan as witnesses on his side.
The defendants have filed a written statement disputing the title and
possession of the plaintiff. The defendants have marked Exhibit B.1 to
B.18 and the 3rd defendant examined himself as D.W.2. A Commissioner
was appointed and he had filed his report as Exhibit C.1 and his
additional report as Exhibit C.2. The plans were filed by the Advocate
Commissioner under Exhibits P.3 and P.4.
3. After considering the oral and documentary evidence, the trial
Court arrived at a finding that the plaintiffs are entitled to a decree for
declaration of title and permanent injunction. Challenging the said
decree, the defendants have filed A.S.No.15 of 2012 on the file of
Principal District Court, Ramanathapuram. The learned District Judge
after extracting the pleadings on either side and the findings of the trial
Court in Paragraph No.18, had arrived at a finding that Exhibits A.21 and
A.22 will disclose that the suit schedule properties belong to the plaintiff.
However, the learned counsel appearing for the respondents in the appeal
before the first appellate Court had contended that unless the persons
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C.M.A(MD)No.367 of 2020
connected with the said document are examined, those documents cannot
be relied upon. This contention of the learned counsel appearing for the
respondent had been accepted by the first appellate Court. Without
setting aside any one of the findings of the trial Court, the first appellate
Court had proceeded to direct the trial Court to frame issues and permit
the parties to let in oral and documentary evidence on either side.
4. A perusal of the order of remand passed by the first appellate
Court will disclose that the first appellate Court has not set aside any one
of the findings of the trial Court. That apart, the first appellate Court has
not pointed out which of the issues were not framed. The first appellate
Court has also not given any finding that the non-framing of a particular
issue is fatal to the case. The first appellate Court has simply remitted the
matter back to the trial Court without assigning any reasons whatsoever.
In fact, the first appellate Court has completely opened the case
permitting the parties to let in fresh oral and documentary evidence
without restricting the parties to any particular issue that requires to be
considered.
5. In view of the above said facts, this Court is of the view that the
order of remand is not legally sustainable and it is not in consonance
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C.M.A(MD)No.367 of 2020
with Order 41 Rule 23 of Code of Civil Procedure. In view of the above
said facts, the appeal stands allowed and the matter is remitted back to
the file of the Principal District Court, Ramanathapuram for fresh
consideration on merits and in accordance with law based upon the oral
and documentary evidence which are already on record.
6. With the above said observations, this Civil Miscellaneous
Appeal stands allowed. No costs. Consequently, connected Civil
Miscellaneous Petition is closed.
03.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
Note : Registry is directed to return all the
documents to the first appellate Court.
To
1.The Principal District Court,
Ramanathapuram.
2.The Subordinate Court,
Ramanathapuram.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.M.A(MD)No.367 of 2020
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.M.A(MD)No.367 of 2020
03.04.2023
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