SAMIKANNU CHETTIAR Vs. ARMUGHA CHETTIAR

JUDGEMENT

(1.) THE lower appellate court had remanded the matter for framing an issue with regard to adverse possession and ouster and for letting in evidence in respect of certain documents that were produced pending appeal. This appeal is against the order of remand.

(2.) THE petitioners are the defendants/to 5 and 7 to 1 in the suit O.S. 181/91 filed by the respondent herein. THE suit was for declaration of title, for possession and for interim injunction. THE case of the respondent is that the suit property originally belonged to his father Ratna Chettiar (RC) and his three brothers Rangasamy Chettiar, Velayudha Chettiar and Narayanasamy Chettiar (NC and 2nd defendant in the suit) THE four brothers divided the properties on 10.10.1957 under a registered partition deed. A registration copy of this deed is marked as Ex.A/A, B, C and D schedule properties were allotted to each of the parties and E schedule property in Ex.A) was kept in common. It is the respondent's case that if any one of the sharers lost any item allotted to his share, the other sharers shall compensated for the said loss or the sharer who lost can be compensate from E schedule property. It is the case of the respondent that RC lost about three items of properties that were allotted to him and therefore, his three brothers agreed that RC should take E schedule property absolutely. This was in 1965. From that date, RC had been in possession and enjoyment of this property paying kist, patta etc. RC had two sons, the respondent and one Ramaswamy Chettiar. THEy entered into a partition under a registered partition deed dated 17.11.1987. This document is marked as Ex.A11. Under Ex.A11, the suit property was allotted to the share of the respondent. According to the respondent, he is in possession and he has prescribed title by adverse possession and ouster. THEre is a long standing enmity between the respondent's family and the petitioners and since there was interference with possession, the suit was filed.

(3.) I do not intend to go into the question of whether the respondent is entitled to plead adverse possession when his case that he was given E schedule property by agreement was rejected by the trial Court. That should be decided by the Court on fact. Nor do I intend to go into the question whether E schedule property was given by the other brothers to the respondent under an agreement not set down in writing. The question mainly urged here is with regard to the legality of the order of remand and the order passed for receiving additional evidence. As regards the documents that were sought to be produced in evidence under I.A. 166/97 and 163/99, the Court below had found that all those documents were obtained by the respondent only after the trial Court had disposed of the suit and the Court was satisfied that the non-production of the documents earlier was not because the respondent lacked due diligence. There, I do not think, the exercise of discretion by the appellate Court in this regard is in any way illegal or irregular.