Madras High Court
Balaji Prasad vs Ramanathan ... 1St on 13 April, 2023
CMA(MD).No.1167 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.M.A(MD)Nos.1167 of 2013 and 1121 of 2011
and
C.M.(MD) No.1 of 2011 in C.M.A(MD) No.1121 of 2011
C.M.A(MD) No.1167 of 2013:
Balaji Prasad ....Appellant/Appellant/ 2nd Defendant
Vs.
1. Ramanathan ... 1st Respondent/1st Respondent/Plaintiff
2. Arulmigu Perumal Kovil Karanthai
Represented by its
Hereditary Trustee Ganapathi Pillai,
S/o. Mahaliapillai,
D.No.11/1560,
South Yadhava Street,
Kujiliyankulam Street
Karathattanakudi,
Thanjavur.
3. T.Vijayavalli
4. T.Navaneetham
5. T.Manokaran
6. T.Muguntharajan
7. T.Soundarajan
8. Lalitha ... Respondents 2 to 8/ Respondents 2 to 8/
Defendants 1 & 3 to 8
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
PRAYER:- Civil Miscellaneous Appeal filed under Order 43, Rule 1 of
C.P.C, against the judgment and decree dated 09.04.2011 made in
A.S.No.22 of 2010 on the file of I Additional Sessions Judge,
(Production of Civil Rights), Thanjavur, reversing the judgment and
decree dated 31.03.2010 made in O.S.No.12 of 2005 on the file of
Additional Sub Ordinate Court, Thanjavur and remanding the suit to the
said Court.
For Appellant : Mr.A.Arumugam
For Respondents : Mr.M.R.S.Prabhu- For R1
: No appearance – For R4 to R8
C.M.A(MD) No.1121 of 2011:
S.Ramanathan .... Appellant/ 1st Respondent/Plaintiff
Vs.
1. Balaji Prasath ... 1st Respondent/Appellant/ 2nd Defendant
2. Arulmigu Perumal Kovil Karanthai
Represented by its
Hereditary Trustee Ganapathi Pillai,
S/o. Mahaliapillai,
D.No.11/1460,
South Yadhava Street,
Kurinjiliyankulam Street
Karathattanakudi,
Thanjavur.
3. T.Vijayavalli
4. T.Navaneetham
5. T.Manoharan
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
6. T.Muguntharajan
7. T.Soundarajan
8. Lalitha ... Respondents 2 to 8/ Respondents/
Defendants 1 & 3 to 8
PRAYER:- Civil Miscellaneous Appeal filed under Order 43, Rule 1(U)
of C.P.C, against the judgment and decree passed in A.S.No.22 of 2010
on the file of I Additional District and Sessions Judge (PCR) Thanjavur,
dated 09.04.2011 reversing the decree and judgment passed in O.S.No.12
of 2005 on the file of the Additional Subordinate Court, Thanjavur, dated
31.03.2010.
For Appellant : Mr.V.K.Vijayaragavan
For Respondents : Mr.A.Arumugam- For R1
: No appearance – For R4 to R8
COMMON JUDGMENT
The second defendant is the appellant in C.M.A(MD) No.1167 of
2013. The Plaintiff is the appellant in C.M.A.(MD) No.1121 of 2011.
2. The plaintiff had filed O.S.No.12 of 2005, before the Additional
Subordinate Court, Thanjavur, for the relief of declaration of title and
consequential permanent injunction restraining the defendants from in
any manner disturbing the peaceful possession and enjoyment of the
property.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
3. The plaintiff was examined as PW.1 and the defendant was
examined as DW.1 on his side. The plaintiff has marked as Ex.A1 to
Ex.A.20. The defendants have marked as Ex.B1 to Ex.B3. An Advocate
Commissioner was appointed and he has filed a report which was marked
as Ex.C1 and the Plan as Ex.C2, and the Advocate Commissioner was
examined as CW-1.
4. The trial Court, after considering the oral and documentary
evidence and the Commissioner's Report, arrived at a finding that the
plaintiff is the absolute owner of the property and granted a decree for
declaration of title and permanent injunction. This judgment and decree
was challenged by the second defendant by filing A.S. No.22 of 2010, on
the file of the first Additional District and Sessions Court, Thanjavur.
The learned first appellate Judge, after setting aside all the findings of the
trial Court, on the ground that the plaintiff has neither established the
title nor the possession over the property, proceeded to remand the
matter back to the trial Court. The order of remand was passed
to enable the trial Court to take effective steps to identify, to
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
ascertain and fix suit property as on ground by giving an opportunity
both the sides and apply the law by limitation in a proper prospective and
decide on merits. This order of remand has been challenged by the
second defendant in C.M.A.(MD) No.1167 of 2013 and by the plaintiff
in C.M.A.(MD) No.1121 of 2011.
5. Pending both the Civil Miscellaneous Appeals, the appellant in
C.M.A.(MD) No.1121 of 2011 and the first respondent in C.M.A(MD)
No.1167 of 2013 had passed away. In C.M.A(MD) No. 1167 of 2013,
steps have been taken to implead his legal heirs of the first
respondent/plaintiff. Some of the legal heirs have been served and some
of them have not been served. In C.M.A(MD) No.1121 of 2011, the
appellant/plaintiff had passed away, the appellant has not taken steps to
implead the legal heirs.
6. The learned counsel appearing for the appellant in C.M.A(MD)
No.1121 of 2011 has filed a memo on 05.04.2023 to the effect that the
legal heirs of the deceased plaintiff have not evinced any interest to
implead themselves in the appeal and the bundle has been returned to the
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
parties with change of vakalat and therefore, they have reported “no
instructions”. In view of the above said memo, this Court is of the view
that C.M.A(MD) No.1121 of 2011 has to be dismissed as abated.
7. However, the dismissal of the said appeal cannot prevent the
second defendant in the suit from challenging the order of remand.
Therefore, this Court proceeds to consider the C.M.A(MD) No. 1167 of
2013 on merits.
8. The first Appellate Court, in paragraph Nos.18 to 24 has
completely disagreed with the findings of the trial Court and has also set
aside the findings. However, in paragraph No.25, the first Appellate
Court has suddenly jumped into a conclusion that in the interest of justice
the entire matter is remitted back to the trial Court to identify the suit
schedule property and to give an opportunity to both the sides. When the
first appellate Court finds that the entire evidence is already on record,
the Court should not have offered a second chance to plaintiff to improve
his case. An order of remand cannot be passed by the first appellate
Court for granting second opportunity to the plaintiff or the defendants
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
so as to improve their case when they have not done so in the trial Court,
despite so many opportunity, being given.
9. Therefore, this Court is of the view that the first Appellate Court
ought to have decided the appeal on merits and in accordance with law
with the available oral and documentary evidence on record. Further, as
far as the application of Law Limitation is concerned, the first appellate
Court has to apply its own mind and decide. The first appellate Court
cannot remand the matter for the purpose of deciding a legal dispute.
Therefore, this Court is of the view that the order of remand is not legally
sustainable on the above said ground.
10. In view of the above said facts, C.M.A(MD) No.1167 of 2013
is allowed and the matter is remitted back to the file of the first appellate
Court for deciding the appeal on merits and in accordance with law on
the basis of the oral and documentary evidence already on record.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
11. In the result, C.M.A(MD) No.1121 of 2011 stands dismissed
as abated. No costs. Consequently, connected Civil Miscellaneous
Petition is closed.
13.04.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
ebsi
To
1.The I Additional District and Sessions Judge,
(Production of Civil Rights),
Thanjavur.
2. The Additional Sub Ordinate Court,
Thanjavur.
3.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
CMA(MD).No.1167 of 2013
R.VIJAYAKUMAR,J.
ebsi
Judgement made in
C.M.A(MD)Nos.1167 of 2013 and 1121 of 2011
13.04.2023
https://www.mhc.tn.gov.in/judis
