Appellate Court has power to go into factual aspects and empowered to take different view.

This Civil Miscellaneous Appeal is preferred against the Judgment and Decree dated 17. 2000 made in A.S.No.36 of 2000 on the file of the Principal District Judge, Erode, modifying the Judgment and Decree dated 212. 1999 made in O.S.No.191 of 1998 on the file of the District Munsif Court-cum-Judicial Magistrate, Perundurai.

2. The Plaintiff/first respondent herein filed the suit in O.S.No.191 of 1998 seeking declaration and permanent injunction contending that he is the absolute owner of the suit A Schedule property by virtue of settlement deed dated 26. 1994, and the right to take water through B Schedule property for irrigation. The appellants/defendants 2 to 4 denied the genuineness of the title deed contending that they are the absolute owners of the property in R.S.No.1013/4 and they are having share in B Schedule property and for the past over 50 years their ancestors have been using the suit B schedule property to irrigate their lands.

3. The Trial court, after considering the oral and documentary evidence rendered a finding against the plaintiff/first respondent herein and dismissed the suit on 212. 1999, against which the Plaintiff/first respondent herein filed A.S.No.36 of 2000 before the Principal District Judge, Erode. The appellate Court remanded the suit back to the Trial Court for giving a finding with regard to Ex.A-3 and A-4.

4. The said remand order passed by the appellate Court is challenged by the appellants/defendants 2 to 4 in this appeal by contending that the appellate Court itself ought to have considered the materials on record and should have decided the appeal on merits by either reversing or modifying or confirming the decree. It is also contended that the appellate Court having not given a finding with regard to the decision of the Trial Court, without assigning any valid reason to remand, passed an order of remand and by remanding the matter, the plaintiff/first respondent herein is given undue advantage to fill up the lacunae in the evidence on record and the same is in effect violation of Order 51 Rule 27 CPC.

5. The learned counsel appearing for the appellants/defendants 2 to 4 submitted that the only reason given by the lower appellate Court for remanding the matter is to give a finding with regard to Ex.A-3 and A-4 and the Trial Court having considered the said documents and given its findings, the said findings is valid or not can very well be decided by the lower appellate Court itself, for which no remand is required, particularly when no fresh evidence is required to be let in. The learned counsel also cited the decisions of this Court reported in 1996 (II) CTC 539 (Poolar v. Gomathi Moopanar and 2 others), 2005 (3) LW 366 (S.Shanmugham v. Su.Sundaram & 4 others)(DB) and the judgment of the Supreme Court reported in (2006) 4 MLJ 1842 (Hameed (D) by LRs. and others v. Kummottummal Kunhi P.P.Amma (D) by LRs. and others) and argued that the lower appellate Court having not exercised its jurisdiction by deciding the matter on its own, the order of remand is unsustainable.

6. The learned counsel appearing for the first respondent/plaintiff submits that the reason given by the appellate Court to remand the matter to consider the averments in Exs.A-3 and A-4 and its finding is within the powers of the lower appellate Court and no interference is called for in the said order of remand.

7. I have considered the rival submissions made by the learned counsel appearing for the appellants as well as the learned counsel appearing for the first respondent.

8. The point in issue is whether the lower appellate Court itself could have considered the averments in Exs.A-3 and A-4 without remanding the matter to the Trial Court and whether without giving a finding as to the validity of the Trial Court order, remand order could be made under Order 41 Rule 23 to 29 CPC.

9. A fair reading of the order of the lower appellate Court shows that the only reason for ordering remand is that the Trial