J U D G M E N T

The appellants herein are the defendants 1 and 2 in the suit against whom and another defendant, the first respondent herein filed a suit for declaration and consequential injunction relief, recovery of possession and other reliefs in O.S.No.201 of 2000, on the file of the Principal District Munsif Court, Virudhachalam. The defendants contested the suit. After full trial, the trial Court dismissed the suit as not maintainable in law.

2. Aggrieved, the plaintiff preferred the first appeal before the Principal Subordinate Judge, Virudhachalam, in A.S.No.3 of 2007 and the same also contested by the respondents. After full trial, the first Appellate Court remanded the case to the trial Court for the reason to examine the witnesses belonging to Virudhachalam Municipality to prove his possession and enjoyment of the suit property.

3. Aggrieved that order, the defendants 1 and 2 preferred this Civil Miscellaneous Appeal on the following grounds:

(i) The Court below failed to note that the first respondent has not made out any case for remand especially when the trial Court on a consideration of the entire oral and documentary evidence rejected the claim of the first respondent;

(ii) The Court below erred in holding that in respect of Ex-A1 to A19, the trial Court rejected the documents as the same were not proved and that therefore the documents should be reconsidered by the trial Court by giving an opportunity to the first respondent;

(iii) The Court below failed to note that reconsidering the documents by the trial Court will not at all arise as the same will amount to filling up the lacuna in the case of the first respondent;

(iv) The Court below failed to note that two Advocate Commissioners were appointed and their reports were considered by the trial Court and it is only on consideration of the reports of the Commissioner and the oral and documentary evidence of the first respondent, the Court below rejected the case of the first respondent;

(v) The Court below failed to note that the lower appellate Court has given permission to the first respondent to fill up the latches in his case and in such circumstances the order of remand made by the lower appellate Court cannot be sustained.

4. The first respondent/plaintiff also contested this Appeal.

5. Heard both sides and perused the materials available on records.

6. As per the submissions made by the appellants that the first Appellate Court erroneously remanded the matter to the trial Court in order to fill up the lacuna by the plaintiff, which is not permissible in law.

7. The learned counsel appearing for the appellants also submits that the trial Court elaborately discussed about the material and documentary evidence adduced on the side of the plaintiff and dismissed the suit as it has no merits. But, before the first Appellate Court, the counsel for the plaintiff sought for sufficient opportunity to prove his enjoyment by examining officials from municipality which was observed by the trial Judge, while passing the decree. Considering that the first Appellate Court remanded the matter to the trial Court.

8. On perusal of the records, it reveals that the plaintiff approached the Court for relief of declaration, injunction and recovery of possession against the defendants 1 and 2, and Virudhachalam Municipality who is added as the formal party to the proceedings. The suit property with four boundaries in O.S.No.21 of 2007 as discussed in the plaint schedule in R.S.No.99/16 with an extent of 0.03 cent in Ayirar Mada Street, Virudhachalam, Door No.48/6, belongs to him by way of enjoyment. The defendants 1 and 2 falsely claimed right over the property with the help of the Virudhachalam Municipality.

Hence, the plaintiff approached the Court for declaration and other reliefs. The first and second defendants contested the suit stating that the entire S.No.99/16 with an extent of 4 acre and 44 cents belongs to their ancestors viz., Ameer Khan and obtained patta for that property.