Suit; Sanatan Saha Vs. Dilip Kumar Dutta [Kolkata High Court, 13-05-2016]

Civil Procedure Code, 1908 – O. 41 R. 23A – Remand in other cases – Before an appellate Court can make an order of remand it should set aside the decision of the trial Court without examining the case on merit. However, in the case at hand the first appellate Court has remanded the entire suit to the learned trial Court without deciding the judgment and decree passed by the learned trial Court on merit. This is not permissible in law.

Specific Relief Act, 1963 – S. 34 – Proviso to – Already in possession of the suit property – the suit as was originally framed without any relief for recovery of possession of the suit property was barred.

Limitation Act, 1963 – Art. 113 or 58 – Under Article 58 of the Limitation Act, the period of limitation for filing a suit for declaration challenging the validity of a document of title in respect of an immovable property has to be filed within three years from the date when the right to sue first accrues.

# Suit


IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction Appellate Side

The Hon’ble Mr. Justice Ashis Kumar Chakraborty

Judgement on : May 13, 2016.

F.M.A. No. 558 OF 2012

Sri Sanatan Saha & Anr. Vs. Sri Dilip Kumar Dutta & Anr.

For the appellants : Mr. Pradip Kumar Roy, Ms. Shrabony Sarkar, Mr. Debasish Karmakar Mr. Joydeep Roy

For the respondents : Mr. Gopal Chandra Ghosh, Mr. Sanjib Kumar Mukhopadhyay, Mr. Sunirmal Khanra. Ms. Kalpita Paul

Ashis Kumar Chakraborty, J.

This is an appeal, at the instance of the defendants in the suit, is directed against an order of remand passed by the learned Civil Judge (Senior Division), Ghatal in Title Appeal No. 3 of 2009. The learned appellate Court allowed the plaintiffs appellants to amend their plaint filed in Title Suit No. 133 of 2000, set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Ghatal thereby dismissing the suit filed by the plaintiffs and sent back the suit back to the learned trial Judge. The relevant facts giving rise to the present appeal are briefly as follows.

For the purpose of convenience, the parties to the present appeal are referred to by their array in the trial Court. The plaintiffs filed Title Suit No. 133 of 2000 before the learned Civil Judge (Junior Division), Ghatal, against the defendants claiming, a declaration that they are the owners and in possession of the ‘A’ schedule property of the plaint, (hereinafter referred to as “the suit property”) and a decree for permanent injunction restraining the defendants from interfering with their possession of the suit property and from constructing any building at the suit property. The plaint case was that the suit property described in the schedule ‘A’ to the plaint comprises land of Plot No. 1085/2069 of R.S. Khatian No. 365 which along with the non-suit land of Plot No.1090 originally belonged to two brothers namely, Panchkari Pal and Satkari Pal, whose names were duly recorded in the record of rights. The non-suit Plot No. 1090 is in the shape of “L” stretching on the southern and western side of the suit property. By a registered deed of partition dated March 09, 1960 the said Panchkari Pal and Satkari Pal partitioned the suit property, along with non-suit Plot No. 1090 between themselves and the suit property, that is, Plot No. 1085/2069 and some portion of non-suit Plot No. 1090 elongating from north to south, with a house standing thereon were allotted to Satkari Pal, who became the exclusive owner and remained in exclusive possession of the suit property. The plaintiffs alleged that due to some mistake on the part of the deed writer, in the said deed of partition dated March 09, 1960 the suit property and some portion of non-suit property, being Plot No. 1090 was not mentioned. By a registered conveyance dated May 30, 1969 the said Satkari Pal sold the entire suit property along with some portion of the non-suit Plot No. 1090 to Sandip Dutta and Dilip Dutta, two minors who were represented by their respective fathers. But, due to mistake on the part of the deed writer, in the said registered conveyance dated May 30, 1969 there was no mention of the suit property as ‘A’ schedule property and the said deed mentioned only transfer of 0.025 satamik of land by Satkari Pal to the said Dutta Brothers. Subsequently, by a registered deed of partition executed on July 21, 1975 the suit property together with non- suit property of Plot No. 1090 was partitioned between the plaintiff no. 1 and the said Dilip Dutta, by virtue whereof the plaintiffs were allotted the suit property of Plot No. 1085/2069 and a portion of the non-suit property of Plot No. 1090. Thus, according to the plaintiffs they became the exclusive owners of the suit property and a portion of the non- suit property of Plot No. 1090 and they remained in possession of the entire suit schedule property by recording their name in respect of the said property, in the revenue records. The plaintiffs, however, alleged that the mistake committed by the deed writer in the deed of conveyance dated May 30, 1969 executed by the said Satkari Pal continued in the said deed of partition dated July 21, 1975 and consequently, the fact of the plaintiffs being allotted the suit property was not mentioned in the in the said deed of partition dated July 21, 1975, but the fact remains that the plaintiffs became the owners and obtained possession of the suit property of Plot No. 1085/2069 and some portion of Plot No. 1090 with the house standing thereon. They claimed that the suit property and the non-suit plot No. 1090 owned by them has been subsequently renumbered as plot nos. 1623 and 1624, respectively and their names have been duly recorded in records of Kharar Municipality and they are also paying tax in respect of the suit property and the non-suit Plot No. 1090 to the Municipality. The plaintiffs further claimed that as per the said deed of partition dated May 30, 1969 between Panchkari Pal and Satkari Pal, Panchkari Pal was allotted a portion of the non-suit Plot No. 1090 which he sold to one Renukarani Chowdhury (hereinafter referred to as “Renukarani”) who, in turn, sold the same to the defendants. In paragraph 12 of the plaint, the plaintiffs also claimed ownership of the suit property by way of adverse possession. According to the plaintiffs, their cause of action to file the suit arose on September 12, 2000 when the defendants caused digging of land of the suit property of Plot No. 1085/2069 for constructing a building.

The defendants contested the suit on various grounds. In their written statement, the defendants claimed to be in possession of the suit property and that the suit is hit by the Proviso to Section 34 of the Specific Relief Act. They further alleged that the suit property was allotted to Panchkari Pal and not to Satkari Pal and while he was in possession of the suit property, by a registered deed of conveyance dated May 31, 1961 the said Panchkari Pal sold the same to one Renukarani who, by a registered conveyance dated October 20, 1999 sold the suit property to them. It was the further case of the defendants that subsequently, it transpired that there was a mistake in the said sale deed executed by Renukarani in their favour, when Renukarani refused to rectify the said defect by executing a deed of rectification, they were constrained to file a suit against Renukarani and thereafter, she executed the deed of rectification in respect of the suit property in their favour. In the written statement, the defendants further alleged that the name of Renukarani was recorded in the revenue records in respect of the suit property and presently they also have obtained their names duly recorded in the revenue records in respect of the suit property. They further alleged that they obtained sanctioned plan from the Kharar Municipality and thereafter sought to commence construction of their building at the suit property owned by them.

During the pendency of the suit before the learned trial Judge the plaintiffs amended their plaint by incorporating paragraph 12(a) alleging that after the execution the said deed of partition dated May 30, 1969, Panchkari Pal did not have any right or title in respect of the suit property and he did not sell the suit property to Renukarani, Renukarani was never in possession of the suit property and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants is fraudulent and void and the defendants cannot claim any benefit of the said deed of rectification. The plaintiffs, however, did not incorporate any relief in the plaint challenging validity of the said deed of rectification dated June 18, 2001 or the deed of conveyance dated October 29, 1999 executed by Renukarani. The defendants filed their additional written statement and denied the allegations made by the plaintiffs in the amended plaint.

After considering the respective pleadings of the plaintiffs and the defendants in their plaint and their written statement, the learned trial Judge framed various issues with regard to the maintainability of the suit, and whether the plaintiffs have the right, title, interest and possession of in respect of the suit property and whether the suit property was allotted to Panchkari Pal or Satkari Pal.

At the trial of the suit, both the plaintiffs and the defendants disclosed various documents, they adduced evidence through their respective witnesses and also proved their respective documents.

The plaintiffs disclosed various documents in the suit including the said deed of partition between Satkari Pal and Panchkari Pal (Exbt.-1), the deed of conveyance dated May 30, 1969 by Satkari Pal in favour of Sandip Dutta and Dilip Dutta (Exbt. 2), the deed of partition between the plaintiffs and Dilip Dutta executed on July 29, 1975 (Exbt. 3), and the land revenue records recording their names in respect of the suit property (Exbt.-4) and the municipal tax receipts (Exbt.-5). The defendants also disclosed the deed of partition dated May 12, 1960 between Satkari Pal and Panchkari Pal (Exbt-“M”), the deed of conveyance executed by Panchkari Pal in favour of Renukarani dated May 13, 1961 (Exbt.-B), the two deeds of conveyance both dated October 29, 1999 executed by Renukarani in favour of the defendants (Exbts.- D and E), the deed of rectification dated June 18, 2001 executed by Renukarani (Exbt.-H), the tax receipts issued by Kharar Municipality in favour of Renukarani and themselves (Exbt.-F series) and the land revenue records recording their names in respect of the suit property (Exbt.- J series).

On an elaborate appreciation of the oral and documentary evidence adduced on behalf of the plaintiffs and the defendants respectively, the learned trial Judge in his judgment dated February 26, 2009 found that as per the said deed of partition dated May 30, 1969 the suit property described as the ‘A’ schedule property, was exclusively allotted to Panchkari Pal and held that the plaintiffs could not establish their right, title, interest in respect of the ‘A’ schedule suit property or that they are in possession of the ‘A’ schedule suit property. Thus, the learned trial Judge dismissed the suit of the plaintiffs.

Against the said judgment and decree passed by the learned trial Judge, the plaintiffs filed the appeal, being Title Appeal No. 03 of 2009, before the Court of the learned Civil Judge (Senior Division), Ghatal. In the said appeal, on November 11, 2009 the plaintiffs filed an application under

# Order VI Rule 17 read with Order XLI Rule 33 of the Code of Civil Procedure,

hereinafter called as “the Code”, for further amendment of their plaint filed in the suit. In the amendment application, the plaintiffs sought to incorporate the averments in the body of the plaint that the deed of conveyance executed by Panchkari Pal in favour of the Renukarani, conferred no title on Renukarani and consequently, the deed of conveyance executed by the said Renukarani in favour of the defendant no. 2 on October 29, 1999 is void ab initio , fraudulent and not binding upon the plaintiffs. The plaintiffs further prayed for incorporating the averments that after passing of the judgment and decree dated February 26, 2009 by the learned trial Judge dismissing the suit, the defendants forcibly encroached on the suit property and dispossessed them from the suit property, the defendants have started to build a two storied pacca building on the suit property and despite their several requests the stop illegal construction, the defendants went on their illegal construction, they lodged complaint with the police authorities and that their further cause of action in the suit arose on February 16, 2009 and that for the relief of recovery of possession of the suit property the valuation of suit be increased by Rs. 25,000/-. The plaintiffs also prayed for amendment in the relief portion of the plaint filed in the suit, by incorporating certain relief to the effect that the deed of conveyance executed and registered on October 29, 1999 by Renukarani in favour of the defendant no. 2 in respect of the land in the ‘A’ schedule suit property is fraudulent, void ab initio and not operative, a decree that the rectification deed executed by Renukarani in favour of the defendant no. 2 on June 18, 2001 is also false, fake fraudulent, bad in the eye of law, void ab initio and not operative and a decree, a decree that the the deed rectification dated June 18, 2001 by Renukarani in favour of the defendant no. 2 is false fake, fraudulent, void and not operative, the defendants have fraudulently recorded their name, in respect of the suit property in the revenue records. The plaintiffs further sought to incorporate relief that a decree for recovery of possession of the suit property be granted to them, a decree for permanent injunction restraining the defendants to stop construction work at the suit property and a decree for mandatory injunction directing the defendants to demolish the two storied incomplete pacca building constructed at the suit property. The plaintiffs also sought for amendment of the schedule-“A” to the plaint by including the incomplete two storied pacca building. Although, the defendants opposed the prayer of the plaintiffs for amendment of their plaint on various grounds, but at the time of hearing of the appeal, the learned lower appellate Court held that the facts sought to be incorporated by the plaintiffs by amendment of the plant are all subsequent facts and allowed the said amendment application of the plaintiffs and remanded the entire suit to the learned trial Judge for a fresh trial with a direction to frame additional issue, if any, in view of the amended portion of the plaint and decide the suit afresh. The learned lower appellate Court allowed the defendants to file additional written statement and granted liberty to the parties to the suit to adduce further evidence before the learned trial Judge and held that consequently the judgment and decree passed by the learned trial Judge stands set aside. As mentioned above, it is this judgment and order dated September 15, 2011 passed by the learned first appellate Court which is the subject matter of challenge in this appeal.

On July 04, 2012, the Division Bench of this Court admitted the appeal by framing the following substantial question of law:

“Whether the learned Judge in the lower appellate Court substantially erred in law in sending the suit back on open remand merely because he allowed an application for amendment of the plaint filed by the plaintiffs-respondents?”

Mr. Roy, learned counsel appearing for the defendants first contended that it is settled law that the Court should decline amendments, if a fresh suit on the amended claims would be barred by limitation on the date of amendment application. According to him, in the present case when all the relief sought to be introduced by the plaintiffs on November 11, 2009 challenging the deed of conveyance dated October 29, 1999 executed by Renukarani in favour of the defendant no. 2, the deed of rectification dated June 18, 2001 executed Renukarani recording the names of the defendants in the revenue records, in respect of the suit property were hopelessly barred by limitation and the relief allowed to be incorporated in the plaint results in change of the nature and character of the suit, the learned lower appellate Court committed an error of law in allowing the plaintiffs to amend their plaint to incorporate the new relief. In support of such contention, Mr. Roy relied upon the decision of the Supreme Court in the case of

# Revajeetu Builders and Developers vs. Narayanswami and Sons. and Ors. reported in (2009)10 SCC 84

(para-63) He strenuously urged that it is well settled that before passing a direction of open remand of the suit to the learned trial Court, under Order XL1 Rule 23A of the Code, the learned first appellate Court should first set aside the decision of the trial Court on merit. According to him, when the learned lower appellate Court did not set aside the judgment and decree of the learned trial Judge passed after appreciating all the evidence adduced by the parties to the suit, that the plaintiffs have failed to prove either their right, title or interest in the suit property or to be in possession of the suit property on merit, the appellate Court fell in an error of law in allowing the prayer of the plaintiffs to amend their plaint, that after the judgment and decree passed by the learned trial Judg, they were dispossessed from the suit property. On these grounds, Mr. Roy urged for setting aside of the judgment and decree passed by the learned appellate Court.

Mr. Gopal Chandra Ghosh, learned counsel appearing for the respondents plaintiffs, however, submitted that from the reports of the two commissioners filed before the learned first appellate Court it is evident that after the judgment and decree passed by the learned trial Judge there is change in the nature and character of the suit property, as the defendants have proceeded with the construction of a building on the suit property and as such the learned first appellate Court cannot be faulted either for allowing the plaintiffs to amend their plaint for bringing on record the subsequent events or to remand the entire suit to the learned trial Judge. According to him, the judgment of the learned lower appellate Court discloses sufficient reasons to support the decision of remand. Relying on the decision of the Division Bench of this Court in the case of

# Mrs. Rekha Mukherjee vs. Asish Kumar Das and Anr. reported in 1999 (1) CHN (Cal) 10

he further submitted that in any event, this Court can exercise powers conferred under Sections 107 and 108 read with Order XL1 and XLIII of the Code and give reasons to sustain the judgment and decree passed by the learned trial Judge. He strenuously urged that the appellate Court has all the powers to permit amendment of the pleadings of the plaintiff(s) and the defendant(s) of the plaint and the written statement, respectively to bring on record subsequent facts even at the appellate stage of the proceeding. He cited a series of decisions of the Supreme Court in the cases of

# Nair Service Society Ltd., vs. K.C. Alexander and Ors. reported in AIR 1968 SC 1165

# Mahila Ramkali Devi & Ors. vs. Nandram (D) Thr. LRs. & Ors. reported in AIR 2015 SC 2270

# Shikharchand Jain vs. Digamber Jain Praband Karini Sabha and Ors. reported in AIR 1974 SC 1178

# North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das reported in (2008)8 SC 511

# Ishwardas vs. The State of Madhya Pradesh and Ors. reported in AIR 1979 SC 551

# M/s. M. Laxmi & Co. vs. Dr. Anant R. Deshpande & Anr. reported in AIR 1973 SC 171

# Pankaja & Anr. vs. Yellappa (D) by L.Rs. and Ors. reported in AIR 2004 SC 4102

and submitted that the plaintiffs were entitled to amend their plaint before the learned first appellate Court to bring on record the subsequent events.

Relying on the decision of the Supreme court in the case of

# Remco Inds. Workers House Bldg. Co-operative Society vs. Lakshmeesha M. & Ors. reported in AIR 2003 SC 3167,

Mr. Ghosh contended that the provisions contained in Order XL1 Rule 23A of the Code, on first confers power on the appellate Court to remand the entire suit before the learned trial Court for fresh trial.

I have considered the facts of the case all the materials on record as also the rival contentions raised by both Mr. Roy and Mr. Ghosh appearing for the respective parties. The defendants have challenged the decision of the learned first appellate Court on two grounds. First, the first appellate Court committed any error of law in allowing the plaintiffs’ prayer to amend their plaint and the second, without interfering with the decision of the learned trial Judge dismissing the suit filed by the plaintiffs on merit, the learned first appellate Court committed an error of law to send back the suit to the learned trial Court afresh on all issues. So far as the second ground urged by the defendants at the time of admission of the present appeal, the Division Bench of this Court already framed the substantial question of law mentioned above.

In the present case, the learned lower appellate Court had taken up the application of the plaintiffs to amend their plaint along with the hearing of the appeal. After allowing the prayers of the plaintiffs for amendment of the plaint, the learned lower appellate Court without interfering with the judgment and decree passed by the learned trial Judge on merit, remanded the entire suit to the learned trial Judge for fresh trial without framing any specific issue. Thus, the defendants had no scope to challenge the decision of the learned lower appellate Court to allow the plaintiffs to amend their plaint by filing any revisional application under Article 227 of the Constitution of India before this Court. Under Section 105(1) of the Code where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case may be set forth as a ground of objection in a memorandum appeal and the same can be decided by the Court of appeal. Thus, this Court while hearing the first miscellaneous appeal, can test the decision of the learned lower appellate Court to allow the plaintiffs to amend their plaint at the appellate stage of the proceeding.

So far as the decision of the learned first appellate Court to allow the prayer of the plaintiffs to amend their plaint it is to be noted that plaintiffs filed the amendment application on November 09, 2009. However, the defendants only in their written statement affirmed on July 06, 2002 had already made averments about the deed of conveyance executed by Renukarani transferring the suit property to them, on October 29, 1999 as also the execution of the deed of rectification dated June 18, 2001 by Renukarani in their favour and that based on the said deeds they had recorded their names in the revenue records in respect of the suit property at plot no. 1085/2069 in Khatian no. 3065. During the pendency of the suit before the learned trial Judge, the plaintiffs did not file any application for amendment of their plaint to incorporate any averment to challenge the title of Renukarani in respect of the suit property on the basis of the deed of sale dated July 15, 1961 executed by Panchkari Pal or the deeds of conveyance executed by Renukarani in favour of the defendants on October 29, 1999 or to incorporate any relief in the plaint to challenge the validity of either the said deed of conveyance dated October 29, 1999 or the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants or the recording of the defendants’ name in respect of the suit property, in the revenue records. On November 11, 2009 when the plaintiffs filed the amendment application before the learned first appellate Court , the relief claimed by them for declarations that either the said deed of conveyance dated October 29, 1999 and the said deed of rectification dated June 18, 2001 both executed by Renukarani in favour of the defendants and the recording of the names of the defendants, in respect of the suit property, in the revenue records being false, fake, fraudulent, bad in the eye of law, void ab initio and not operative were all barred by

# Article 113 or Article 58 of the Limitation Act, 1963.

Under Article 58 of the Limitation Act, the period of limitation for filing a suit for declaration challenging the validity of a document of title in respect of an immovable property has to be filed within three years from the date when the right to sue first accrues. Even if it is contended that the plaintiffs have not claimed any relief for declaration and they have sought to incorporate the relief in their plaint only to obtain decrees that the said deed of conveyance and deed of rectification executed by Renukarani in favour of the defendants and the defendants have fraudulently recorded their names in the revenue records, in the instant case, were all barred by Article 113 of the Limitation Act, providing for the same period of limitation as under Article 58 of the Act.. The plaintiffs did not sought to incorporate any particulars of fraud in the plaint to claim benefit of Section 17 of the Limitation Act. As held by the Supreme Court in the case of Revajeetu Builders and Developers (supra), the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. Thus, the learned first appellate Court also fell in error in allowing the amendment application of the plaintiffs to incorporate averments and the relief that the said registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by the said Renukarani in favour of the defendants are false, fake, fraudulent, bad in the eye of law, void ab initio and not operative and that the defendants fraudulently obtained their names recorded, in respect of the suit property, in the revenue records. In the instant case, when the averments sought to be incorporated by the plaintiffs in their plaint to challenge the title of Renukarani in respect of the suit property based on the said sale deed dated July 15, 1961 executed in her favour by Panchkari Pal and the deed of conveyance dated October 29, 1999 by Renukarani to the defendants and the relief sought to be incorporated by the plaintiffs in the plaint to challenge the validity of the said deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants and the recording of the names of the defendants in respect of the suit property, in the revenue records were not based on any event subsequent to the judgment and decree passed by the learned trial Judge in the suit, none of the above decisions of the Supreme Court cited on behalf of the plaintiffs allowing amendment of their plaint or written statement to incorporate subsequent events have any application in the present case. In the facts of the present case as discussed above, I also find force in the submission made on behalf of the plaintiffs that the prayer of the plaintiffs to amend their plaint by incorporating the averments to challenge the title of Renukarani in respect of the suit property based on the sale deed dated July 15, 1961 executed by Panchkari Pal and the relief challenging the validity of the said deed of conveyance and the deed of rectification executed by Renukarani, in favour of the defendants and the challenge to the recording of the names of the defendants, in the revenue records in respect of the suit property as allowed by the learned lower appellate Court result in the change in the nature and character of the suit. Further, in their the amendment application the plaintiffs made averments only to amend their plaint to incorporate the allegations that subsequent to the passing of the judgment and decree by the learned trial Judge the defendant encroached into the suit property and dispossessed them from the suit property and to incorporate the relief in the plaint based on such alleged subsequent event. However, in the schedule of the amendment, the plaintiffs also sought to incorporate the aforementioned averments and prayers to challenge the said deed of conveyance and deed of rectification executed by Renukarani in favour of the defendants and recording of the names of the defendants, in respect of the suit property, in the revenue records. Thus, I find that the prayers of the plaintiffs to amend their plaint to incorporate the averments and relief to challenge the title of Renukarani in respect of the suit property on the basis of the said sale deed dated July 15, 1961 executed by Panchkari Pal, the said deed of conveyance and deed of rectification executed by Renukarani in favour of the defendants and the recording of the names of the defendants, in respect of the suit property, in the revenue records without any explanation for the long delay in claiming such relief lacked bona fide.

In the case of Pankaja and Anr. (supra) cited on behalf of the plaintiffs the Supreme Court allowed the application for amendment of plaint as there was an arguable question whether the limitation applicable for seeking relief of declaration on facts of the said case fail under Article 58of the Limitation Act or under Articles 64 and 65 of the Limitation Act which had to be decided at the trial of the suit. In the present case, there is no doubt that as on the date of filing of the amendment application by the plaintiffs that the relief sought to be incorporated by the plaintiffs in respect of the said deed of conveyance and the deed of rectification, both executed by Renukarani and the recording of the names of the defendants, in respect of the suit property, in the revenue records were hopelessly barred by both the Articles 58 and 113 of the Limitation Act. Thus, I find that the said decision of Pankaja and Anr. (supra) is of no assistance to the plaintiffs.

The power of the appellate Court to remand a suit to the trial Court is found in the provisions contained in Rules 23, 23A and Rule 25 of Order XL1 of the Code. Rule 23 of Order XL1 of the Code empowers the appellate Court to remand a suit to the trial Court in a case when the suit was disposed of only upon a preliminary point and the decree of the trial Court is reversed in appeal. Rule 25 of Order XL1 Of the Code empowers the appellate Court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial Court and which appears to the appellate Court essential to the right decision of the case on merits. It is under Rule 23A of Order XL1, the first appellate Court is empowered to remand the whole suit to the trial Court for retrial, when the entire decree is reversed in appeal and a retrial is considered necessary.

Since, the learned first appellate Court remanded the suit under Order XL1 Rule 23A of the Code, the said provisions is extracted below:

# 23-A. Remand in other cases

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23,”

From a bare reading of the above provisions it is clear that before an appellate Court can make an order of remand it should set aside the decision of the trial Court without examining the case on merit. Even in the case of Remco Inds. Workers House Bldg. Co-operative Society (supra) cited by the learned counsel appearing for the plaintiffs, the Supreme Court remanded the suit under Order XL1 Rule 23A of the Code, only after deciding that the decision of the learned trial Court and the High Court in appeal were vitiated by law in not considering a relevant document exhibited by the defendant, resulting in an error of decision on an important issue of the matter. However, in the case at hand the first appellate Court has remanded the entire suit to the learned trial Court without deciding the judgment and decree passed by the learned trial Court on merit. This is not permissible in law and I find that the plaintiffs are justified in their submission that in the present case the learned first appellate Court has committed an error of law in sending back the suit to the learned trial Judge. The learned first appellate Court overlooked the fact that in view of the finding of the learned trial Judge in the case at hand that the defendants were already in possession of the suit property, the suit as was originally framed without any relief for recovery of possession of the suit property was barred by the Proviso to Section 34 of the Specific Relief Act, 1963.

For all the foregoing reasons, the present appeal is allowed to the following extent. The application for amendment of the plaint, both in the body and the relief portion, in so far as the same related to the prayers for decrees that the said registered deed of conveyance dated October 29, 1999 and the deed of rectification dated June 18, 2001 executed by Renukarani in favour of the defendants are false, fake, fraudulent, bad in the eye of law, void ab initio and not operative and that the defendants fraudulently obtained their names recorded in the revenue records, in respect of the suit property is rejected. The order passed by the first appellate Court in so far as the same allowed the plaintiffs to incorporate the averments in paragraphs 10(a) and 10(b) in the body of the plaint and the relief (A-1) to (A-4) of the plaint, is set aside. It is further directed the amended relief (A-5) to (A-7) and amendment of schedule “A” to the plaint shall have prospective effect from September 15, 2011. The order of remand passed by the learned first appellate Court is also set aside. Title Appeal No. 3 of 2009 is sent back to the learned first appellate Court for disposal of the appeal on merit on the basis of the materials on record and if necessary, by allowing the parties to adduce fresh evidence only with regard to the facts arisen subsequent to the judgment and decree passed by the learned trial Judge in the suit. Considering the facts of the case, the learned first appellate Court is requested to dispose of the appeal as expeditiously as possible, preferably within four months from the date of receipt of the lower Courts records.

However, there shall be no order as to costs.

Let the lower Courts’ records along with the copy of this judgment be forthwith sent to the learned lower appellate Court.

Urgent certified copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

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