LAKSHMIKANTHAN Vs. S. RENGASAMY AND ANOTHERS

JUDGEMENT

(1.) This Civil Miscellaneous Appeals are filed as against the order of remand passed in A.S.Nos. 24 and 26 of 2010, on the file of the Additional Subordinate Court, Kumbakonam, The appellant here in filed in O.S.No. 487 of 2006, for permanent injunction. The first respondent here in filed O.S No. 608 of 2006 to declare that he is the legal heir of one Saroja and also for permanent injunction. O.S.No 487 of 2006 filed by the appellant here in was decreed and the suit filed by the first respondent herein in O.S.No. 687 of 2006 was dismissed. Against the said orders, the first respondent here in filed appeals A.S No. 24 of 2010 and A.S No. 26 of 2010. The above appeals are allowed and remanded back to the trial court for fresh disposal. Against the said orders the present Civil Miscellaneous Appeals were filed by the appellant.

(2.) For the sake of convenience, the parties are referred in these appeals also with reference to the suit in O.S.No. 487 of 2006.

(3.) The Learned counsel for the Appellant argued that the Lower Appellate Court can record the further evidence in respect of additional document it self or direction may be given to the Trial court for recording evidence in the light of new documents and submit the same to the Appellate Court for perusal and determination of rights of parties and the Lower Appellant court did not see that conducting trial again is totally onerous time consuming. The first respondent did not prove the reversionary right nor filed any documents for proving the genealogy and it is not necessary to amend the prayer for declaration of title and was totally devoid of merits. The order of remand passed by the lower Appellate Court was not tenable and against Judicial precedence. Parties cannot be permitted to fill up the lacuna and without entire evidence is available on record for deciding rights of parties order of remand will not arise. Saroja is the exclusive owner of the suit property and the appellant alone is the legal heir and he is only entitled to his suit properties. The lower Court has unnecessarily assumed that the suit properties were neither self acquired properties nor ancestral property of Chinnayan husband of Saroja The first respondent has not filed any documents to prove that he was related to Saroja's family or the properties in the name of Saroja came from her father's family to claim right. There is no question of title involved in this case and hence it is not necessary to file the suit for declaration. The Judgment passed by the Trial Court is correct and hence it is not necessary to remand the case for fresh disposal and prays that these Civil Miscellaneous Appeals are liable to be allowed.