At, Before the Madurai Bench of Madras High Court
By, THE HONOURABLE MRS. JUSTICE R. THARANI
For the Appellant: J. Anandhavalli, Advocate. For the Respondent: T. Selvan, M/s. Srinath Sridevan, Advocates.
(Prayer: Civil Miscellaneous Appeal is filed under Order 43 Rule 1 of Civil Procedure Code, to set aside the Judgment and Decree of the lower Appellate Court dated 17.12.2012 made in A.S.No.62 of 2011 on the file of the leanred Additional Sub Judge, Dindigul remanding the suit in O.S.No.50 of 2010 on the file of the learned District Munsif cum Judicial Magistrate, Natham dated 30.10.2011 for fresh disposal.)
1. Heard Mrs.J.Ananadhavalli, learned counsel appearing for the appellant and Mr.T.Selvan, learned counsel appearing for the respondent.
2. The appeal is filed against the Judgment and Decree of the lower Appellate Court dated 17.12.2012 made in A.S.No.62 of 2011 on the file of the leanred Additional Sub Judge, Dindigul remanding the suit in O.S.No.50 of 2010 on the file of the learned District
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Munsif cum Judicial Magistrate, Natham dated 30.10.2011 for fresh disposal.
3. The appellant herein is the defendant and the respondent herein is the plaintiff in the suit. The respondent has filed a suit in O.S.No.50 of 2010 before the learned District Munsif cum Judicial Magistrate, Natham for a prayer of permanent injunction. The learned District Munsif dismissed the suit. Against the dismissal of the suit, the plaintiff has filed an appeal before the Additional Sub Judge, Dindigul in A.S.No.62 of 2011. The Additional Sub Court, Dindigul remanded the case back to the lower Court permitting both sides to examine further witnesses and to mark further documents and for fresh disposal in accordance with law. Against the Judgment and Decree of the Additional Sub Court, the appellant has filed this appeal.
4. The case of the plaintiff is that the first schedule property purchased by the plaintiff on 17.01.1992. The second schedule property was purchased by the plaintiff and Subetha through a sale deed dated 26.05.1992 and the third schedule property belonged to Muthammal through a sale deed dated 21.04.1988 and the plaintiff got a lease for 99 years on 21.02.1995 and was enjoying the property and the plaintiff’s family members are running the mill by name Neo Intex Mills Limited after obtaining loan from the Bank and due to fire accident of the 1996, the plaintiff was not able to repay the loan amount and now the properties except the suit property were handed over to the official liquidator and the suit properties are in enjoyment of the plaintiff and that the defendants are the neighbours and that the defendant is one of the accused in the fire accident case and the defendant is trying to grab the property and he filed a suit in O.S.No.20 of 2006 and the suit was dismissed on 22.12.2006 and that there was no appeal against that Judgment and the defendant is interfereing in the enjoyment of the suit property on 07.06.2010 and on 01.07.2010 and prayed the defendant to be prevented by way of injunction order.
5. The case of the defendant is that the possession and enjoyment of the suit properties are with the defendants and that the defendants are the cultivating tenants and these facts was hidden by the plaintiff and that the fact of tenancy was informed to the Official Liquidator through a registered post and that the suit properties was in enjoyment of the defendants for the past 75 years and that the tenancy proceedings are pending before the tenancy Tahsildar, Natham. The plaintiff has no right against the defendants.
6. On the side of the appellant, it is stated that the respondent executed a general power of attorney in favour of Ponnusamy on 17.01.1992 and that the property is not in possession of the respondent and the defendant and their predecessor were in possession for the past 75 years as cultivating tenants and the proceeding regarding the registration of tenancy is pending before the Special Tahsildar and that the property was given to the appellant’s aunty Rajammal at the time of her marriage but the possession was not given to her and the possession was with the family and the family is cultivating the land. Rajammal has filed the suit in O.S.No.720 of 1988 and the suit was dismissed for default. The petition for injunction order was already dismissed. The Tahsildar dismissed the petition for declaring the defendant as cultivating tenants but the District Revenue Officer set aside the order of the Tahsildar and the appeal is still pending before him. It is stated that the possession of the appellant was proved by examination of the witness. Instead of remanding the case in entirety, the first Appellate Court has come to the conclusion to remand back the matter to decide only the right of tenancy and for this limited purpose, the case is remanded back to the lower Court to record additional evidence and to receive additional documents and to decide the tenancy. The case was remanded back only to decide issue no.2 and that Section 16(A) of C.P.C., is not a bar to grant a decree.
7. On the side of the appellant, it is stated that the vendor of the respondent has filed a suit for declaration and injunction and that at the time of marriage, though property was given to the bride, possession was retained by the family. The first Appellate Court gave a findings that issue no.1 is in favour of the plaintiff and the lower Appellate Court has allowed the appeal with a direction to remand the matter to decide only issue no.2.
8. On the side of the respondent, it is stated that the appellant has filed a earlier suit in O.S.No.20 of 2006 and that suit was dismissed on 22.12.2006 and there was no appeal against that order and it is stated that the respondent has mortgaged the property and there was financial crisis and the plaintiff was not able to run the mill and the appellant is trying to curtail the rights of the respondent.
9. On the side of the respondent, it is stated that the suit was filed for bare injunction. The plaintiff filed documents disputing the tenancy rights and prayed for injunction and that the defendant has failed to prove tenancy and that the only point to be decided is whether remanding back the case is correct or not and that in the first appeal also, the appellant failed to mark the documents and if the injunction order is not passed against the proceedings, the respondent will be put into hardship. The defendant’s suit was already dismissed and there is no appeal and the suit is also for a prayer for declaring him as a tenant and the tenancy was not proved and the first appeal has to be dismissed instead of remanded back to the lower Court.
10. One Lakshmana Naidu was the original owner of the property and Alagarsamy Naidu and Rajammal are the brother and sister. The property was given to Rajammal and these facts are admitted. It is stated that Rajammal left the property under the cultivation of the family members. A petition for tenancy right is still pending before Divisional Revene Officer. It is seen that the petition before the Tahsildar is dismissed. It is seen that the respondent filed a suit with a prayer for declaring him as a tenant and the same was dismissed and there is no appeal against that decree.
11. A perusal of the records reveals that the first Appellate Court has decided the first issue in favour of the appellant herein but for the second issue, the matter was remanded back to the trial Court. This partial order may create confusion. The decision made by the first Appellate Court in the first issue may create an impact upon the trial Court.
12. In the above circumstances, it is decided that the matter is to be remanded back to the trial Court in entirety and this appeal is to be allowed and the Judgment and Decree passed by the first Appellate Court in A.S.No.62 of 2011 dated 17.12.2012 on the file of the learned Additional Sub Judge, Dindigul is to be set aside. Both sides are permitted to produce additional witnesses and mark additional documents and the trial Court is directed to decide the matter afresh without adhering to the findings made by the first Appellate Court. With the above direction, this Civil Miscellaneous Appeal is allowed. The entire case is remanded back to the trial Court before the learned District Munsif cum Judicial Magistrate, Natham. No Costs. Consequently, M.P.(MD)Nos.1 of 2013 and 1 of 2014 are closed.