Circumstances under which remand to be ordered.

The respondent filed O.S.No.135 of 1985 against the appellant herein on the file of the Sub Court, Udumalpet for a declaration and possession of about O.52 cents of land alleged to have been encroached by the late husband of the appellant and subsequently said to be in her possession. The appellant had further sought past mesne profits of Rs.15,000 and future mesne profits at the rate of Rs.5,000/- per year. The suit was dismissed with costs. Aggrieved against the same, the respondent filed an appeal In A.S.No. 62 of 1988 on the file of the I Additional District Judge, Coimbatore against the abovesaid decree. The lower Appellate Court set aside the trial Court’s decree and has remanded the matter to the trial Court with a direction to appoint a new Advocate Commissioner to measure the suit properties with the help of a surveyor and dispose of the case afresh. Aggrieved against the same, the appellant has filed the above appeal.

2. According to Mr.Santhanagopalan, learned counsel for the appellant, the appellant’s husband had acquired the properties as early as 1957 within specified boundaries and the same has been in the continuous possession and enjoyment of their lessees throughout. The respondent was given every opportunity to substantiate his case. It is contended that the trial Court after thorough consideration of the evidence adduced by the parties dismissed the suit with costs by a well considered judgment. However, the lower Appellate Court has remanded the matter to the trial Court.

3.I have gone through the entire pleadings and also the judgments of both the Courts below. The order of remand as ordered by the lower Appellate Court, is in my opinion, against the well laid principles relating to the power and jurisdiction of the Appellate Court in determining the suit for fresh disposal. The lower Appellate Court has mechanically remanded the matter to the trial Court without applying its mind as to whether the judgment and finding of the trial Court are correct or not, or whether it should be reversed or set aside on the materials available on record. The trial Court has framed the necessary issues and decided the matter on merits. The trial Court also has given a clear finding to the effect that the plea of encroachment of respondent’s lands by the appellant is not true, that the well laid boundaries of the lands of the parties would prevail over the extent referred to in the documents, that the appellant has prescribed title over the lands in her possession by adverse possession, that the plaintiff has not established that the suit properties belonged to him,that the appellant her husband have been in possession of their lands from 1957 and that the suit as filed on 17. 1985 is barred by limitation. Therefore, it is clear that even though ample and sufficient materials were available on record before the lower Appellate Court, the lower Appellate Court without looking into those materials placed before it has failed to appreciate them. It has also failed to appreciate that there were enough materials available on record for a fair and complete adjudication of the disputes between the parties and that there was no need or necessity to remand the matter once again for fresh disposal. The Appellate Court has erred in its observation that there was no need to consider the questions viz., that the plea of encroachment of respondent’s lands by the appellant is true or not and whether the plea of the appellant that she has prescribed title by adverse possession over the lands in her possession and enjoyment from 1957, situate well within the laid and fixed boundaries and as such the respondent can have no reliefs as prayed for by him, merely because of the filing of the adangal extracts marked as Exs. A7 to A16 and the compromise decree, marked as Ex.A-17. Before the lower Appellate Court Exs. A-7 to A-17 were marked, which have been received as additional evidence by the lower Appellate Court. Sec. 107 of the C