Scope of power of remand of Appellate Court.

This is an appeal by the defendants against an order of remand made by the learned Subordinate Judge of Vellore remanding the suit O.S. No, 462 of 1963 for trial once again by the trial Court, the District Munsiff of Ami. The suit was filed by plaintiffs 1 and 2 for partition of a half share in the A Schedule properties items I to 5 and for declaration of title and possession of the B Schedule properties items 1 to 3. The suit was decreed by the trial Court in respect of items a to 5 of A Schedule and was otherwise dismissed. The plaintiffs preferred an appeal. It was heard by the learned Subordinate Judge. He thought that two additional issues were necessary which had not been framed by the trial Court and solely on that ground he set aside the order of the learned District Munsif and remanded the suit for fresh trial permitting the parties to adduce additional evidence. Aggrieved by that the defendants have preferred this appeal.

2. To decide the question involved, it is necessary to refer briefly to the pleadings of the parties. There was one Kuppiah Pillai. He died leaving two sons, Narayanaswami Pillai (first plaintiff) and Govindaraju Pillai. Govindaraju Pillai is now dead the first defendant Annamalai is his son and the second defendant Pattammal, his widow. The plaintiffs alleged that item 1 of A Schedule was acquired by Kuppiah Pillai with joint family nucleus and therefore that property was joint family property available for division. Items 2 to 5 of A Schedule were alleged to be ancestral properties. So far as B Schedule properties are concerned, the case of the plaintiffs was that there was an oral usufructuary mortgage by the owners Abbu Pillai, Bondhu Pillai and Mottai Pillai to one Rangaswami, that Ranga-swami took the mortgage amount from Kuppiah Pillai and put him in possession, that the sons of Kuppiah Pillai were in enjoyment of B Schedule properties as usufructuary mortgagees, that later on the first plaintiff purchased the equity of redemption under Exhibit A-5. dated 3rd May, 1961 and Exhibit A-6, dated 5th May, 1961, that the usufructuary mortgage became extinguished by section 9-A of the Madras Agriculturists Relief Act (IV of 1938) and that, therefore, the first plaintiff had become entitled absolutely to the properties. The second plaintiff was stated to be the usufructuary mortgagee from the first plaintiff of the suit properties.

3. The defendants pleaded that item 1 of A Schedule was purchased by Kuppiah Pillai with his own funds, that there was no joint family nucleus then, that this property which was the self-acquired property of Kuppiah Pillai was later bequeathed by him by a registered will dated 17th August, 1927, in favour of Govindaraju Pillai, and that, therefore, Govindaraju Pillai and his heirs were entitled thereto. With respect to items 2 to 5 of A Schedule, the defendants conceded that they were ancestral properties, but pleaded that the first plaintiff left Govindaraju Pillai and his heirs in possession because there were some debts to be paid which the 1st plaintiff was unwilling to discharge, and that Govindaraju Pillai and the defendants discharged the debts and ousted the plaintiffs by adverse possession. With regard to B Schedule propeties, the defendants pleaded that Govindaraju Pillai purchased them orally (from whom they were purchased and whose debts were discharged were not stated) and were in possession in their own right.

4. The learned District Munsiff held that item 1 of A Schedule was the self-acquired property of Kuppiah Pillai and that it was validly bequeathed by a will Exhibit A-2 to Govindaraju Pillai. This suit was dismissed in respect of A Schedule item 1. With regard to A Schedule items 2 to 5, the learned District Munsiff held that the defendants having admitted the ancestral character of the properties, it was up to them to prove the ouster. But the burden had been discharged. He, therefore, granted a decree for partition. With regard to B Schedule p