P N JANAKI Vs. KALLI BHASKARAN

JUDGEMENT

(1.) THE above appeal has been filed by the plaintiffs in O.S. No.2 of 1985 on the file of the Court of Subordinate Judge, Mahe, who filed I.A. No.272 of 1989 for passing of final decree for partition, against the order of the learned II Additional District Judge, Pondicherry, in A.S. No. 154 of 1986 remanding the proceedings to the trial court with a direction to the Commissioner earlier appointed to re-measure the suit property with the help of a qualified surveyor and divide the same as per the Commissioner's report after issue of notice to both parties.

(2.) A preliminary decree came to be passed in the matter almost by way of consent and the defendant agreed to have the property divided into five equal shares and allot one such share to the plaintiff and the remaining four shares to defendants 1 to 4. The application for passing of final decree came to be made in LA. No.272 of 1985. A Commissioner was said to have been appointed and he has filed his report. The Appellant before the first appellate court, who was the second defendant was said to have filed his objections and thereupon, a revised report was said to have been submitted, on the basis of which a final decree came to be passed. Aggrieved by the same, an appeal was filed by the second defendant- second respondent before the first appellate court. The learned first appellate Judge, agreed the grievance made by the appellant before him that the infirmities said to have been committed in the matter of measurement resulted in grave prejudice in the allotment of properties while passing the final decree and it is only after recording a finding about the irregularities vitiating judgment of the trial court in the final decree proceedings, the order of remand came to be made. Aggrieved, the above appeal has been filed.

(3.) I have carefully considered all the submissions of the learned counsel for the appellants. In my view, there are no merits whatsoever in the challenge made to the order of remand. The reliance placed upon Sec.99 of the Code of Civil Procedure is inappropriate. So, far as the facts of the case before me are concerned, it cannot legitimately be contended that the allotment of shares which has been found to be vitiated on account of certain infirmities pointed out does not affect the merits of the case. On the other hand the merits of the case. On the other hand the merits of the case will be and has been shown to have been seriously prejudiced by the wrong procedure adopted and the ultimate allotment of shares on a misconception of vital factors and mistake in the measurements. The first appellate court exercising powers under Sec.96 read with O.41 has co-extensive powers with that of the trial court and the interference can be both on questions of fact and law provided the facts go to the root of the matter and also have the tendency to affect prejudicially the merits of the case. In this case, the learned first appellate Judge while noticing the infirmities in the manner of measurement and preparation of report and the consequent error in the allotment of the properties, thought fit to set aside the allotment and remit the matter for reconsideration by directing the Commissioner to inspect the property and measure the same with the help of a Surveyor before proceeding further in the matter and the course adopted by the learned first appellate Judge cannot be said to be erroneous in law.