Order of remand to the matter by Appellate court held not justified.

S.K. Krishnan, J.

Aggrieved by the judgment and decree dated 29.11.2002 passed in A.S.No.139 of 2001 by the Second Additional District Judge, Coimbatore, the plaintiff has preferred this appeal.

2. The facts-in-brief leading to the filing of this appeal are as follows:

a. Originally, the appellant/plaintiff has filed a suit in O.S.No.262 of 1988 before the learned Subordinate Judge, Tiruppur for partition and separate possession.

b. The first and fourth defendants in the suit are father and mother of the plaintiff respectively. The second and third defendants are the brothers of the plaintiff.

c. On the basis of oral and documentary evidence, the learned Subordinate Judge, Tiruppur, passed a preliminary decree holding that the plaintiff is entitled for 1/5th share in the plaint schedule properties and therefore, 1/5th share in all the schedule properties be handed over to the plaintiff.

d. Thereafter, the plaintiff filed an application in I.A.No.893 of 1992 before the trial Judge, for passing a final decree. After hearing the both sides, the learned Subordinate Judge, passed a final decree holding that the plaintiff is entitled for 'A' schedule properties.

e. As against the judgment and decree of the Subordinate Judge, Tiruppur, passed in I.A.No.893 of 1992, the third defendant has preferred an appeal in A.S.No.139 of 2001 before the learned Second Additional Judge, Coimbatore, who passed the judgment and decree in favour of the third defendant setting aside the judgment and decree passed in I.A.No.893 of 1992 and remanded the matter back to the trial Court for fresh disposal with some directions.

3. Aggrieved by the judgment and decree passed by the lower appellate Court, the plaintiff has preferred this Civil Miscellaneous Appeal.

4. Now the only point is to be decided in this appeal is whether the remand order passed by the lower appellate Court is in accordance with law.

5. The learned counsel appearing for the appellant would submit that the remand order passed by the lower appellate Court is not at all sustainable under law for the reason that there is no reason for remanding the matter back to the trial Court since when all the necessary documentary evidence and materials are available on record before the lower appellate court, it should have disposed of the appeal considering the fact that the suit is of the year 1988.

6. Per contra, the learned counsel appearing for the respondents would submit that the trial Court has not allotted the shares equally to all the shareholders in all the schedule properties and that too it has committed an error in allotting the entire 'A' schedule properties to the plaintiff and therefore considering all these aspects, the learned Second Additional District Judge has rightly set aside the judgment and decree of the trial Court passed in I.A.No.893 of 2002 and remanded the matter with directions for fresh disposal of the said application and in such circumstances, there is no necessity to interfere with the judgment and decree of the lower appellate Court.

7. Denying the submissions put forth by the learned counsel appearing for the respondents, the learned counsel appearing for the appellant would submit that the judgment and decree passed by the learned Second Additional District Judge is not sustainable under law in view of the well settled propositions of law.

8. In support of his contention, the counsel appearing for the appellant strongly rely on the principles laid down in the following decisions.

9. In P. PURUSHOTTAM REDDY AND ANOTHER VS. PRATAP STEELS LTD. ((2002) 2 SUPREME COURT CASES 686), the Apex Court held as follows:

"In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send