Order of remand not to be made for giving an opportunity to the parties to fill up their lacuna.

E. PADMANABHAN, J.

1. This appeal has been preferred under Order 43 Rule 1 (u) of The Code of Civil Procedure challenging the order of remand passed by the learned Subordinate Judge of Sankarankoil made in A.S. No.62/00 and reversing the judgment and decree of the learned Additional District Munsif of Sankarankoil dated 28.1.98 made in O.S. No.512/90.

2. Heard the learned counsel appearing for the appellants and the respondents. With the consent of counsel for either side, the appeal itself is taken up for final disposal though it is listed before this Court today at the stage of notice of motion. For convenience, the parties will be referred as arrayed before the trial court.

3. The suit O.S. No.512/90 was instituted by the plaintiff Malaiammal and four others seeking the relief of declaration of title and for permanent injunction. The defendants 1 to 3 resisted the suit. The trial court by judgment and decree dated 28.1.98 decreed the suit. Being aggrieved, the defendants 1 and 2 preferred A.S. No.62/00 on the file of the Subordinate Judge of Sankarankoil. The learned Subordinate Judge of Sankarankoil, by judgment and decree dated 29.6.01 reversed the judgment and decree of the trial court, remanded the suit to the lower court for fresh disposal according to law, besides directing the trial court to frame appropriate issue with regard to standing trees. The first appellate court also granted liberty to either parties to adduce evidence in regard to the principal issue and the trial court was directed to decide all the issue afresh. Pending the first appeal the first plaintiff died and plaintiffs 2 to 5 continued the appeal. Challenging the said order or remand, the present appeal has been preferred by the plaintiffs in the suit.

4. According to the plaintiff the suit schedule first item originally belonged to one Muthuveeran, on his death his heir sold the property to the first plaintiff on 16.9.48. The suit property is covered by old patta No.457 and new patta number being 446. Schedule items 2 and 3 also belonged to the said Muthuveeran, who sold to one Muthumadathi, who in turn sold to Chellaiah @ Vellaipandi Thevar on 20.3.69, who in turn sold to Sankarapandi Konar on 23.9.78. The lands are covered by patta issued in favour of the plaintiffs. The 4th item also originally belonged to Muthuveeran and Sankarapandi Konar purchased the same. The said Sankarapandi Konar died on 19.1.90 leaving behind the first plaintiff, who is his wife and plaintiffs 2 to 5, his sons.

5. According to the plaintiffs they have been enjoying the suit property as owners. It is also claimed that there are 60 Palmirah trees, two Neem trees and three Vage trees, which the plaintiff has been enjoying. The defendants are not having any right over the property and since the trees are in and around the suit schedule property, the defendants are trying to interfere with the possession and enjoyment alleging that the trees are standing in the poramboke land. Notice was issued under Section 80 CPC on 18.7.89 and thereafter, the present suit has been filed.

6. The defendants 1 and 2 denied the plaintiffs claim and also pleaded that the said trees are in survey No.328/1 odai poramboke belonging to the Government. Only three Palmirah trees are standing in survey No.244/7 belonging to the plaintiffs. The defendants are not interfering with the possession and enjoyment of the trees that stand in the patta land and there are no merits in the suit filed.

7. The trial court framed three issues and on a consideration of oral and documentary evidence, decreed the suit. The defendants preferred the appeal. The first appellate court framed the following two points for consideration :-

"i) Whether the plaintiffs are entitled to declaration and consequential relief of injunction prayed for ?

ii) To what relief, if any ?"

8. The first appellate court, while holding that the conclusion of the trial court that the said trees are standing within the four boundaries of t