Remand of the suit by appellate Court without reversing decree of the Trail Court.

The appellants instituted O.S.No.183 of 1981 in the Court of the Principal District Munsif of Nagercoil against the respondent State Government for declaration and injunction in respect of the suit items. The appellants based their claim to the properties on Ex. A-1 the sale deed dated 13. 1952 executed by one C.H.Simpson. Ex.A-25 is the photostat copy of the plaint appended to the sale deed. The sale deed covers an extent of 550 acres including the southern portion of old Survey No.2902 and a major part of old Survey No.2905 described as item 1 in the plaint schedule. Old Survey Nos.2904 and 2907 described as item 2 in the plaint schedule are not expressly included in the sale deed. The case of the appellants regarding item 2 is that though these two survey numbers do not find a place in Ex.A-1, they come within the boundaries mentioned in the sale deed. The Government resisted the action contending that item 2 is a poramboke land. The trial court after an elaborate discussion on the evidence on record found that old Survey Nos.2904 and 2907 correlate new R.S.No.774 and it lies in lekkom 28. And possession of this item 2 remains with vendor under Ex.A-1. Besides, from the boundary description and plan the trial court found that the vendor under Ex.A-1 had conveyed old Survey Nos.2904 and 2907 as part of old Survey No.2908. These two Survey Nos.2904 and 2907 form a small packet of land surrounded by patta land comprised in lekkom 28. And accordingly it decreed the suit as prayed for without costs. The defendant took up the matter in appeal before the Sub Judge, Nagercoil in A.S.No.36 of 1982 on his file. The lower appellate court while confirming the finding of the trial court on item 1, had remanded the matter to the trial court to find out whether item 2 is a patta land belonging to the present appellants or poramboke field. And this civil miscellaneous appeal is directed against the said order of remand.

2 It is significant to note that the lower appellate court has not rendered any finding as to the nature and character of the lands described in item 2. It simply states that the Commissioner appointed in the case has failed to find out whether item 2 is a patta land or a poramboke land. The Commissioner’s report does not indicate whether item 2 is covered by Ex.A-1 sale deed or not. The Government have filed certain documents to prove that the disputed property is poramboke land. Curiously enough without going through the documents and discussing them, learned Subordinate Judge has remarked that we cannot give a verdict as to the character of the lands from these documents. And without discussing the Commissioner’s report the lower appellate court goes on to say that the trial court went wrong in holding item 2 is patta land on the basis of the report of the Commissioner. So, he was remitting the case to the trial court to render a finding as to whether item 2 is a patta land or a poramboke land. Needless to say that the approach of the court below is erroneous and contrary to the provisions of O.41 Rules 23 to 29, C.P.C.

3. The scope and object of O.41, Rule 23 were considered by a single Judge of this Court in Annamalai v. Narayanaswami Pillai, (1971) 2 M.L.J. 330, wherein it has been observed that

“0.41, Rule 23, as amended in Madras states: ”Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the appellate court in reversing or setting aside the decree, under appeal considers it necessary in the interests of justice to remand the case, the appellate court may by order remand the case.......“0.41, Rule 24, says that, where the evidence on record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issue, finally determine the suit- O.41, Rule 25 says that, if the trial court omitted to frame or try any issue, the appellate court may refer the same to