KANNAMMAL Vs. KUPPANNA GOUNDER

JUDGEMENT

(1.) THE respondent filed O.S.No.135 of 1985 against the appellant herein on the file of the Sub Court, Udumalpet for a declaration and possession of about O.52 cents of land alleged to have been encroached by the late husband of the appellant and subsequently said to be in her possession. THE appellant had further sought past mesne profits of Rs.15,000 and future mesne profits at the rate of Rs.5,000/- per year. THE suit was dismissed with costs. Aggrieved against the same, the respondent filed an appeal In A.S.No. 62 of 1988 on the file of the I Additional District Judge, Coimbatore against the abovesaid decree. THE lower Appellate Court set aside the trial Court's decree and has remanded the matter to the trial Court with a direction to appoint a new Advocate Commissioner to measure the suit properties with the help of a surveyor and dispose of the case afresh. Aggrieved against the same, the appellant has filed the above appeal.

(2.) ACCORDING to Mr.Santhanagopalan, learned counsel for the appellant, the appellant's husband had acquired the properties as early as 1957 within specified boundaries and the same has been in the continuous possession and enjoyment of their lessees throughout. The respondent was given every opportunity to substantiate his case. It is contended that the trial Court after thorough consideration of the evidence adduced by the parties dismissed the suit with costs by a well considered judgment. However, the lower Appellate Court has remanded the matter to the trial Court.

(3.) IT is only in exceptional cases, where the judgment of the trial Court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for a fresh trial. In the present case, the lower Appellate Court has acted clearly without jurisdiction and has mechanically remanded the matter to the trial Court without applying its mind as to whether the judgment and the findings of the trial Court are correct and if not whether it should be reversed or set aside. In other words, the Appellate Court should come to the clear conclusion that the findings of the trial Court cannot be supported and must be set aside. Ends of justice require that a parly litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial Court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial Court.