The main legal point established in the judgment is the requirement for measurement and proof of possession and enjoyment of poromboke land before passing a decree.

S. RAMATHILAGAM, J.

1. This Civil Miscellaneous Appeal has been preferred against the judgment and decree passed in A.S.No.3 of 2012 by the Sub Judge, Thiruchengode remanding the matter to the trial Court by reversal of the judgment and decree dated 29.10.2011 made in O.S.No.50 of 2007 on the file of the Additional District Munsif, Tiruchengode.

2. The suit in O.S.No.50 of 2007 was filed by the plaintiff claiming right in Survey No.237/3 which is a poromboke land and the extent of the same is 1.84 acres and in which, the plaintiff is claiming right over 0.75 cents.

3. The case of the plaintiff is that he is in possession and enjoyment of the suit property which is a poromboke land along with his patta land. It is also the averment of the plaintiff that the defendants are also enjoying part of the poromboke land in Survey No.237/3. When the defendants were trying to disturb the plaintiff's possession and enjoyment of the suit property, the plaintiff has filed a suit for the relief of permanent injunction restraining the defendants in any way disturbing his peaceful possession and enjoyment over the suit property.

4. In the written statement, the defendants 1 and 2 have stated that the extent of land in Survey No.237/3 is 0.74.5 hectare and further, the defendants have stated that the defendants are the owner of the land in Survey No.237/2 and further, the entire land in Survey No.237/3 to the extent of which 0.74.5 is under his enjoyment.

5. Based on the pleadings, documents and evidence placed before the trial Court, the trial Court has analysed the same and decreed the suit as prayed for by the plaintiff. Aggrieved against the same, the defendants had preferred an appeal in A.S.No.3 of 2012 before the Sub-Court, Tiruchengode. The First Appellate Court after analysing the finding of the trial Court and also the documents and evidence placed before the trial Court has decided the case. The First Appellate Court based on the evidence placed before the trial Court and also the Commissioner's report has found that the question by saying that whether the plaintiff is enjoying an extent of 75 cents in the poromboke land or not and to arrive a finding, the said property in dispute with regard to the extent of only a portion in the poromboke land and the measurement of the entire property and also the measurement of 75 cents has to be appropriately measured, only then, the enjoyment of 75 cents out of a larger extent since the Survey No.237/3 is a larger extent cannot be ascertained. Based on the Commissioner's report, the plaintiff's enjoyment to the limited extent was demarcated by way of physical features and stone revetment first made by the plaintiff. Hence, the First Appellate Court is of the view that the trial Court should have ordered the Advocate Commissioner to measure the suit property with the help of a qualified surveyor to find out the exact extent of poromboke land, wherein, the plaintiff is in possession and enjoyment. Hence, on the basis of the said finding, the First Appellate Court set-aside the decree and judgment passed by the trial Court and remanded the case to the trial Court with a direction to reissue the Commission Warrant and measure the entire poromboke land in Survey No.237/3 to ascertain the right of the plaintiff to the said extent as stated by him. Aggrieved against the same, this Civil Miscellaneous Appeal has been preferred by the defendants.

6. In the grounds of appeal, the appellants/defendants had stated that the First Appellate Court has failed to note that the suit was decreed on 29.10.2011 and by remanding back to the trial Court has not proceeded in consonance with the Order 41 Rule 23 of CPC. Further, remanding back to the trial Court for the purpose of reissuing the Commission Warrant to measure the property and to identify the portion when it is not an object of Order 26 Rule 9 of CPC. The other grievance raised by the appellants/defendants is that when the plaintiff himself has failed t