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Noorjahan v/s Mohamed Mariyam, Represented by her Power Agent Abdul Razack

    C.M.A.(MD). No. 545 of 2021 & C.M.P.(MD) No. 5150 of 2021

    Decided On, 27 January 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MRS. JUSTICE S. ANANTHI

    For the Appellant: S. Deenadhayalan, Advocate. For the Respondent: M.C. Swamy, Advocate.



Judgment Text

(Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule 1 of the Civil Procedure Code, to set aside the order of remand, made in A.S.No.23 of 2016, dated 21.11.2020, on the file of the learned Subordinate Judge, Pattukkottai, Thanjavur District, by which, set aside the Judgment and Dereetal order made in O.S.No.181 of 2010, dated 22.06.2016, on the file of the learned District Munsif Court, Pattukkottai, Thanjavur District and restore the Decree and Judgment of the Trial Court.)

1. This Civil Miscellaneous Appeal has been filed to set aside the order of remand, in A.S.No.23 of 2016, dated 21.11.2020, on the file of the learned Subordinate Judge, Pattukkottai, Thanjavur District, by which, set aside the Judgment and Decreetal order made in O.S.No.181 of 2010, dated 22.06.2016, on the file of the learned District Munsif Court, Pattukkottai, Thanjavur District and restore the same.

2. The respondent/plaintiff has filed a suit in O.S.No.181 of 2010 on the file of the learned District Munsif, Pattukkottai, seeking declaration and for mandatory injunction and directing the appellant/defendant herein to hand over the vacant possession of the suit property after removing the constructions which were made by him by encroaching the suit property. The said suit was dismissed on 22.06.2016. Against the dismissal order, the respondent herein/plaintiff has preferred an appeal in A.S.No.23 of 2016 on the file of the learned Subordinate Court, Pattukkottai. The said appeal was remanded back to the trial Court for fresh consideration. Against the said order, the appellant/defendant is before this Court.

3. Heard on either side. Perused the material documents available on record.

4. The respondent herein/appellant/plaintiff has filed a suit in O.S.No.81 of 2010 on the file of the learned District munsif, Pattukottai for declaration and mandatory injunction and recovery of possession. The suit property is located in Athiramapattinam village in Old.S.No.4.330 and new S.No.324/7 and 324/8.

5(i).The case of the respondent herein/plaintiff is that the suit item no.1 property is measuring about East-West 19 feet and North-South 71 feet namaicut land and a property with PB No.28 & 29. The property situated on the Western side of 1st item of property with a measurement of a East-West 10 feet and North-South 24 feet manaicut land is the suit 2nd item of property and the property situated on the Southern side of 2nd item and Western side of 1st item with a measurement of East-West 6 feet and North-South 20 feet is the 3rd item of property. The property situated on the Western side of suit property namely Natham Poramboke land having an extent of 2 cents was in the enjoyment of Hajara ammal. The said Hajara ammal bequeathed the above 2 cents natham land and some other properties to Sabura ammal by way of Inam Settlement deed, dated 31.01.1960 and the said properties were enjoyed by Sabura ammal. On the Western side of the above said 2 cents natham land, the property owned and enjoyed by Dawood Sulaika ammal is situated. The respondent/plaintiff is the daughter of above said Sabura ammal. The said Sabura ammal had executed an Hibbath deed on 03.09.1979, thereby, bequeathed the properties covered in Settlement deed, dated 31.01.1960 to and in favour of her daughter, who is the respondent/plaintiff herein. Since the 2 cents land situated on the Western side of the settlement properties dated 31.01.1960 is classified as natham poramboke it was not shown in the Hibbatha deed, dated 03.09.1979.

5(ii). The further case of the respondent herein/plaintiff is that the property shown in the Inam settlement deed, dated 31.01.1960 comprised in survey No.4/1 was sub divided into two parts. The property situated on the Eastern side is sub divided as survey No.4/331 and the property situated on the Western side along with 2 cents natham land was sub divided as survey no.4/330 and Patta was issued in the name of Respondent/Plaintiff. During UDR survey the property comprised in survey No.4/330 was sub divided as 324/7-0.00.5 ares and 324/8-0.00.5 ares and Patta has been issued in the name of respondent/plaintiff.

5(iii). The further case is that the respondent herein/plaintiff has constructed a new house in survey No.4/331 and resides over it. On the Eastern side of his house, one Ahamed nachiya constructed a house and she is presiding over it. On the Western side of the suit survey no.4/330 the property of the appellant/defendant comprised in survey No.4/329 is situated and the appellant/defendant had constructed an house and she resides over it. During the year 2008, the appellant/defendant has encroached the suit property and constructed house without obtaining any approval from the Town Panchayat and she has not cared about the objection made by the respondent/plaintiff.

6(i). The appellant/defendant has stated in the written statement that the respondent/plaintiff ought to prove the location of the three items of property mentioned in the Inam settlement deed. The natham property to an extent of 2 cents not belonged to Hajara ammal at any point of time and she never enjoyed the same. So the Hajara ammal has no right to gift the alleged 2 cents of natham land in favour of Sabura ammal. The actual survey number of 2 cents natham land was not specified by the respondent/plaintiff in her plaint. Neither the respondent/plaintiff nor his predecessor has any right or possession over survey No.4/330. The respondent/plaintiff has transferred the Patta for the property comprised in new survey No.324/8 without taking due legal course and the same is not valid in the eye of law. In similar way the respondent/plaintiff has no right over the property comprised in survey No.324/7 measuring 0.00.5 ares and no Patta has been granted in the name of respondent/plaintiff for survey No.324/7.

6(ii). It is further stated that the grand mother of the appellant/defendant, namely; Dawood Sulaika ammal bequeathed the properties comprised in survey No.4/330 measuring an extent of 2 cents and survey No.4/324 to an extent of 2 cents, to and in favour of this appellant/defendant by way of Inam Settlement Deed dated 07.05.1968. Since the appellant/defendant was minor at the time of Inam settlement deed, her father Abdul Hameed Maracayar possessed and enjoyed the properties in the capacity of guardian of minor appellant/defendant. During the year 1986, the appellant/defendant has obtained building approval from the Town Panchayat to construct an house in survey No.4/330 with the measurements of East-West 38 feet and North-South 22 feet. Further, during the year 2003, the appellant/defendant had demolished the old house and constructed a new house and resides over it. The door number of the new house of the appellant/defendant is 30A. At the time of construction of new house, the respondent/plaintiff never made any objection. The respondent/plaintiff also demolished her old house and constructed a new house during the year 2007. The appellant/defendant has constructed first floor in the said building during the year 2009 after getting proper approval from the Town Panchayat. Taking advantage of the wrong reference of Survey number in 1968 Inam Settlement deed, the husband of respondent/plaintiff with an intention to grab the property of the defendant fraudulently filed the suit. The appellant/defendant made construction only in survey No.4/330 and she never made any construction in survey No.4/329. There is no cause of action for the suit and hence, the respondent/plaintiff has no right to file the suit.

7. The trial Court had dismissed the aforesaid suit on the ground that the respondent/plaintiff has not proved the title through oral and documentary evidences.

8. Against the dismissal order, the respondent/plaintiff has filed an appeal in A.S.No.23 of 2016. The Appellate Court has framed additional issues and remanded the matter to trial Court for fresh consideration. To receive the additional documents and commission petition are also directed to file before the Trial Court. Aggrieved the said remand order, the appellant/defendant is before this Court.

9. In the schedule, the description of the suit property is not clear and only survey number has been given, boundaries are not given. Without boundaries the property cannot be identified. This is the main ground for dismissal by the trial Court.

10. Now the point for determination is that, Whether the remand order passed by the Appellate Court is proper?

11. The Appellate Court can receive additional documents and evidence. The Appellate Court has to look into the available evidence and decide Whether the respondent/plaintiff is entitled for the relief as prayed for based on the settlement deed?.

12. The pleading of the appellant/defendant is that the two cents land is Natham Poromboke. The Government is a necessary party, but Government was not added as party. Further the defendant has also claimed title as the properties belonged to him.

13. In the Judgment reported in 2020 0 Supreme (Mad) 1423, Lakshmi Vs. Parvatham and another, the Hon'ble Supreme Court has held as follows:

............

“26. Accepting the said application for ordering remand is not legally sustainable, because it is settled law that to fill up the lacunae pointed out by other side, no remand is permissible. Lastly, plaintiff is sister of D2, D1 mother died. D3 is the husband of D2. Therefore, question of success or failure does not arise to either of the party here.”

14. The trial Court has also considered all the issues and decided the matter.

15. In the Judgment reported in (2017) 14 SCC 207, J.Balaji Singh Vs.Diwakar Cole and Others, the Hon'ble Supreme Court held as follows:

“Held, remand order can be passed in three situations – (1) Under Or.41 R.23, matter can be remanded where trial Court disposed of suit upon preliminary point : under such condition, appellate Court can direct trial Court to decide all issues based on evidence – (2) Under Or.41 R.23-A, even though trial Court decided all issues but appellate Court considers necessity retrial of matter after reversal of decree passed by trial Court – (3) Under Or.41 R.25, appellate court can frame or try an issue if it finds that such issue is essential for right decision in suit and that issue was not framed by trial Court – In these situations, appellate court can frame issue and refer the same to trial Court for taking evidence and record findings on such issues, and return the same to appellate court for deciding appeal – Under such conditions, appellate court retains appeal to itself – However, once appellate court decides to remand matter, it is not required for appellate court to adjudicate on merits involved in dispute – Discussion and finding on issues involved in matter, after appellate court coming to conclusion that matter needed to be remanded, is uncalled for.”

16. In this case, the description of the suit schedu

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le property and measurements are not given. It was raised by the appellant/defendant in the written statement. But, during the trial, no steps had been taken by the respondent/plaintiff. Now the respondent herein/plaintiff cannot fill up the lacunas. Without proper measurements (east, west, north and south) and boundaries an Advocate commissioner cannot be appointed. 17. If the appellate Court thinks that, it is necessary to find out the features of the properties can receive additional documents. The reasons stated by the Appellate Court to remand is not proper. Pleadings cannot be changed. If necessary the Appellate Court can also frame the issues and decide the matter on merits. 18. Finally, this Civil Miscellaneous Appeal is allowed. The remand order, dated 21.11.2020, in A.S.No.23 of 2016, passed by the learned Subordinate Judge, Pattukkottai, Thanjavur District, is set aside. The learned Subordinate Judge, Pattukkottai is directed to restore the aforesaid appeal on his file and dispose the matter on merits, within a period of 3 months from the date of receipt of copy of the order, without influencing the order passed by this Court. No cost. Consequently, connected miscellaneous petition is closed.
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