KALUVAROYA PILLAI Vs. GANESA PANDITHAN

JUDGEMENT

(1.) THE above batch of civil miscellaneous appeals are against the order of the subordinate Judge, Ra-manathapuram in A. S. 151 of 1963, 27 of 1959 and 29 to 32 of 1959, whereunder he modified the judgment and decree of the District munsif, Ramanathapuram, in the Original suits tried by the latter, and remanded the same on a particular aspect. The appeals before the lower Appellate Court were all connected and filed by the appellants against the respondents in those civil miscellaneous appeals. In all the suits the respondents claimed that the suit lands were pannai lands and therefore they had domain over the same and that the appellants are bound to recognise such right in them as iruwaram-dars and liable to pay rent therefor. Both the Courts below found concurrently that the lands situate in the village of Karun-gulam is a pre-settlement dharmasanam grant which were iruwaram pannai lands of the respondents. On an examination of the oral and documentary evidence, the Courts below found that the suit lands are such lands of the respondents. They also found that the respondents collected swamibogam in respect of the suit lands which by itself is an important circumstance indicating that the lands in question are private lands. The learned district Munsif, however, found that the appellants were the tenants of the respondents. But the lower Appellate Court came to a different conclusion and held that the evidence on record was not sufficient to make out a case of tenancy of the appellants in the respective suit lands under the respondents. The learned Subordinate Judge, there-lore, having come to a different conclusion from that of the learned District Munsif that the respondents are not entitled to arrears of rent from the appellants came to the conclusion that the appellants were in any event liable to pay to the respondents mesne profits in view of their admitted possession of the lands during the fasli or fash's in question. He, therefore, remanded the suits to the trial Court for the limited purpose of determining the quantum of mesne profits payable to the respondents by the appellants. He also gave a direction that the respondents will have the liberty to suitably amend the plaint so as to secure such mesne profits as and when reckoned by the trial Court, The result of the order of remand is that he confirmed the findings as regards the character of the lands and the right of the respondents to own and possess them as iruwaram pannai lands, but remitted the suit for a further enquiry as to the ascertainment and quantification of the mesne profits to which the respondents would be entitled to by reason of the occupation of such pannal lands by the appellants. As against this order of remand the present batch of civil miscellaneous appeals are filed.

(2.) C. M. A. No. 276 of 1964 is also an appeal against an order of remand and by consent this was also heard along with the above batch of civil miscellaneous appeals. In this case, the lower Appellate Court remanded the suit for a fresh enquiry, because the learned District Munsif in that suit did not frame an issue about the release, which release was pleaded in the plaint, and because of certain other important circumstances attendant with the trial of the suit. He also framed two issues and set aside the decree of the trial Court in full and practically directed a retrial of the suit. As against this order of remand this civil miscellaneous appeal was filed.

(3.) THE main legal contentions addressed before me revolve on the question whether in an appeal against an order of remand, the appellant can canvass all the findings of fact arrived at by the appellate Court or whether the findings of fact relating to and circumscribing the order of remand only could be agitated therein.