GANESA ACHARI Vs. SAGUNTHALA AMMAL

JUDGEMENT

(1.) The appeal has been filed against the orders of remand passed by the Appellate Court, setting aside the Decree of dismissal for fresh disposal by the trail Court. The point for consideration by this Court is very limited namely, whether the Appellate Court is justified in remanding the matter to the Trial Court?

(2.) Appellant is the defendant before the trial Court and the respondent is the plaintiff. The respondent herein filed suit for declaration of title and for delivery of possession of by schedule properties and for damages. The said suit was contested by the appellant herein. After elaborate trial, the trial Court dismissed the suit by a Decree and Judgment dated 11.12.2001. Against the said Judgment the respondent preferred in A.S.No.54/2002. In the said Appeal respondent took out two I.A's in I.A.No.129 of 2003 and I.A.No.130 of 2003. I.A.No.129 of 2003 was filed under Order 41 rule 21 read with Section 151 of C.P.C. to seek permission to let in further oral evidence in the Appeal. I.A.No.130 of 2003 was filed under Order 41 Rule 27 and read with Section 151 of C.P.C. to receive the additional documentary evidence.

(3.) While dealing with the said applications the Appellate Court went into the details with regard to the boundary of the property and the contradiction between the Advocate Commissioner's Report and Ex.A.1 patta and surveyors report. However, the Appellate Court without giving any finding with regard to as to how the trial Court Decree and Judgment is not sustainable, merely based on the contradiction regarding boundary remanded the matter as follows:-