JUDGMENT

The Civil Miscellaneous Appeal is directed against the judgment and decree passed in A.S.No.35 of 2019 dated 23.03.2022 on the file of the Principal Subordinate Court, Kumbakonam.

2. The respondent/plaintiff, who is the Executive Officer of Arulmigu Someswarar Swamy Temple, Kumbakonam, has laid a suit in O.S.No.419 of 2014 against the appellant/defendant claiming the reliefs of permanent injunction restraining the appellant/defendant and his men from in any manner making permanent constructions so as to hide the tower of the Temple and for mandatory injunction directing the appellant/defendant to demolish the constructions made, in such a way, which hide the tower of the Temple.

3. The learned Principal District Munsif, after framing necessary issues, has proceeded with the trial, wherein, the respondent/plaintiff has examined two witnesses as P.W.1 and P.W.2 and exhibited seven documents as Ex.A.1 to Ex.A.7 and that the appellant/defendant has examined himself as D.W.1 and adduced no documentary evidence. The Advocate Commissioner's report and plan have been exhibited as Ex.C.1 and Ex.C.2.

4. The learned Principal District Munsif, upon considering the evidence, both oral and documentary and on hearing the arguments of both, had passed the judgment dated 16.11.2018 granting permanent injunction restraining the appellant/defendant and his men from making permanent constructions in the suit property, in such a way, hiding the tower of the Temple and mandatory injunction directing the appellant/defendant to demolish the constructions made violating 9 meters height restrictions shown in the Government Order in G.O.No.22 of 1997 and in such a way, hiding the tower of the Temple within two months from the date of judgment and costs. Aggrieved by the said judgment and decree, the appellant/defendant had preferred an appeal in A.S.No.35 of 2019 and the learned Principal Subordinate Judge, upon considering the evidence on record and on hearing the arguments of both, had passed the impugned judgment dated 23.03.2022 allowing the appeal and thereby, setting aside the judgment and decree dated 16.11.2018 passed in O.S.No.419 of 2014 on the file of the Principal District Munsif Court, Kumbakonam and remitted the matter back to the trial Court for retrial.

Challenging the remand order, the appellant/defendant has preferred the present Civil Miscellaneous Appeal.

5. The learned counsel appearing for the appellant/defendant would contend that the learned appellate Judge remanded the matter by indirectly permitting the respondent/plaintiff to fill up the lacuna, which is legally unsustainable, that the learned appellate Judge should have decided the matter himself, based on the sufficient evidence available and could not have remanded the matter to the trial Court, that there were no grounds to remand the matter in the appeal suit, and that therefore, the appellant/defendant was constrained to file the present appeal challenging the remand order passed by the appellate Court.

6. Admittedly, the suit property is owned by the appellant/defendant and situated in Town Survey Nos.933 and 937 of Kumbakonam Town and the building bearing Door No.5, Someswarar Sannathi Street, Thanjavur Main Road within the limits of Kumbakonam Municipality, to an extent of 40 feet breadth and 81 feet length situated on the East of Someswarar Temple and compound wall, North of Sannathi, South of Sarangapaniswamy Temple and West of Municipality Lane.

7. It is not in dispute that the respondent/plaintiff sent a legal notice dated

21.03.2013 directing the appellant/defendant not to make any constructions, in such a way, to hide the tower of the Temple and in such a way, to obstruct the people from using the portion abutting the Temple compound wall. The appellant/ defendant, having received the said legal notice, has sent a reply notice dated 25.03.2013 admitting his on-going constructions in the suit property and specifically undertakes not to make any constructions, i