Madras High Court
M.N.S.A.Mohamed Kasim (Died) vs Tmt.Rani R.B.K.Rajeswari ... on 8 June, 2023
C.M.A.(MD).Nos.477 and 478 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.06.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
C.M.A.(MD).Nos.477 and 478 of 2021
and
C.M.P.(MD).Nos.4189, 4192, 4193 and 4194 of 2021
C.M.A.(MD).No.477 of 2021
M.N.S.A.Mohamed Kasim (died)
2.Kathija Beevi
3.Ayas Mohamed
4.Mohamed Riswan
A2 to A4 are brought on record as LRs of the
deceased sole appellant vide Court order dated
29.03.2021 made in C.M.P.(MD).Nos.2805, 2807, 2010
and 2814 of 2021 in C.M.A.(MD).SR.Nos.72625 and 72620 of 2019.
... Appellants
Vs.
1.Tmt.Rani R.B.K.Rajeswari Nachiyar
2.Packiammal
... Respondents
PRAYER: The Civil Miscellaneous Appeal is filed under Order 43 Rule 1U of
the Civil Procedure Code, against the final d4aecree and judgment passed in
A.S.No.8 of 2018 on the file of the Principal District Court, Ramanathapuram
dated 21.03.2019 remanding the case to trial Court passed in O.S.No.14 of
2008, on the file of the Subordinate Court, Ramanathapuram District dated
08.12.2017.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.477 and 478 of 2021
For Appellants : Mr.K.R.Laxman
For R1 : Mr.S.Ramesh
For R2 : No appearance
C.M.A.(MD).No.478 of 2021
M.N.S.A.Mohamed Kasim (died)
2.Kathija Beevi
3.Ayas Mohamed
4.Mohamed Riswan
A2 to A4 are brought on record as LRs of the
deceased sole appellant vide Court order dated
29.03.2021 made in C.M.P.(MD).Nos.2805, 2807, 2010
and 2814 of 2021 in C.M.A.(MD).SR.Nos.72625 and 72620 of 2019.
... Appellants
Vs.
Tmt.Rani R.B.K.Rajeswari Nachiyar
... Respondent
PRAYER: The Civil Miscellaneous Appeal is filed under Order 43 Rule 1U of
the Civil Procedure Code, against the final decree and judgment passed in
A.S.No.8 of 2018 on the file of the Principal District Court, Ramanathapuram
dated 21.03.2019 remanding the case to trial Court passed in O.S.No.14 of
2008, on the file of the Subordinate Court, Ramanathapuram District dated
08.12.2017.
For Appellants : Mr.K.R.Laxman
For Respondent : Mr.S.Ramesh
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.477 and 478 of 2021
COMMON JUDGMENT
Challenging the order of remand and setting aside the judgment of the
trial Court, the present appeals came to be filed.
2. The suits in O.S.Nos.1 of 2006 and 14 of 2008 have been filed for
declaration and injunction. The trial Court has decreed the suit in O.S.No.1 of
2006 decreed and the suit in O.S.No.14 of 2008 and dismissed the suit in
O.S.No.14 of 2008 in a common judgment dated 08.12.2017. Aggrieved over
the same, two appeals have been filed before the first appellate Court. The first
appellate Court almost confirming the finding of the trial Court. However, set
aside the same and remanded the matter back to the trial Court, mainly on the
basis of the oral submission of the counsel to the effect that the suit property
has been purchased by more than 45 individuals. Therefore, the first appellate
Court took a view that unless all the purchasers have been impleaded, lis cannot
be decided properly. The suits have been filed based on certain documents
claiming title over the property.
3. The learned counsel appearing for the appellants would submit that the
so called purchases were made during the pendency of the suit, otherwise it is
only lis pendency purchase. Therefore, the trial Court has set aside the
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.477 and 478 of 2021
judgment and decree and remanded the entire lis once again, which is not
according to law.
4. The learned counsel appearing for the respondents would fairly submit
that all the purchases were made during the pendency of the appeal and it is hit
under Section 52 of the Transfer of Property Act and subject to the result of the
suit.
5. In the light of the above submissions, now the point for consideration
in these appeals is whether the first appellate Court is right in remanding the
matter by setting aside the decree and judgment of the trial Court, merely on the
basis of the oral submissions and also on the ground of sale in favour of the
third parties?
6. As rightly pointed out by the learned counsel for the appellants that the
purchase made to the third parties indicate that the sales have been effected
from the year 2005 till 2011, during the pendency of the suit, which has not
been disputed by the other side. In fact, all these sale deeds also verified before
the Court and it is admitted by the other side that the sale made during the
pendency of the suit. This fact has not been disputed. Such being the position,
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C.M.A.(MD).Nos.477 and 478 of 2021
the subsequent sale is always subject to the result of the main suit. The doctrine
of lis pendens will come into play and the said validity of the sale would be
subject to the result of the same. Such being the position, impleading all the
subsequent lis pendens purchasers and hearing them to establish the title does
not arise at all. Therefore, mechanically remanding the matter on that ground
cannot be sustained in the eye of law.
7. The remand is permissible only in the circumstances contemplated
under Order 41 Rule 23(A), 24 and 25 of C.P.C. The remand is not an
automatic. Under Order 41 Rule 23 of C.P.C., when the trial Court has decided
the suit only upon a preliminary issue, the same is set aside in the appeal,
appellate Court can very well remand the matter once again for answering all
the issues. Under Rule 23(A) of C.P.C., when the first appellate Court come to
the definite conclusion that the retrial is absolutely necessary, then such case
the remand is permissible. Under Order 41 Rule 24, despite sufficient evidence
available, necessary issue has not been framed by the trial Court, the appellate
Court may frame the issues and under Order 41 Rule 25, when the trial Court
has omitted to frame any issues and determined in question of fact, in such
case, the appellate Court may remand the matter. In the above circumstances,
the remand is possible.
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C.M.A.(MD).Nos.477 and 478 of 2021
8. In this case, the remand is made only on the ground that the lis
pendens purchases have been affected. It is relevant to note that the lis pendens
purchase is always subject to the result of the judgment and decree of the suit.
9. Such being the position, this Court is of the view that for giving
opportunity to the lis pendens purchasers, matter cannot be remanded.
Accordingly, the order of the first appellate Court remanding the matter to the
trial Court is set aside and the first appellate Court shall decide the appeals on
its own merits, within a period of three months from the date of receipt of a
copy of this order, without being influenced by the observations made in these
appeals.
10. In the result, these Civil Miscellaneous Appeals are allowed. No
costs. Consequently, the connected Miscellaneous Petitions are closed.
08.06.2023
akv
To
1.The Principal District Court,
Ramanathapuram.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.477 and 478 of 2021
2.The Subordinate Court,
Ramanathapuram District.
https://www.mhc.tn.gov.in/judis
C.M.A.(MD).Nos.477 and 478 of 2021
N.SATHISH KUMAR,J.
akv
C.M.A.(MD).Nos.477 and 478 of 2021
08.06.2023
https://www.mhc.tn.gov.in/judis
