SUBBA GOUNDAN Vs. KRISHNAMACHARI

JUDGEMENT

(1.) Defendants are the appellants. This Appeal arises out of a suit filed by the plaintiffs to recover possession of the properties claimed in the plaint on the ground that the sale of the properties by their father to the defendants is not valid and binding on the plaintiffs, and for the recovery of past and future mesne profits. The case for the plaintiffs was that the land specified in the plaint and other properties belonged to their grandfather, that on a family partition the plaint properties fell to the share of their father, that he without any necessity sold the plaint properties to the defendants for a low price, that the sale was not binding on them and that they are under Hindu law entitled to recover possession of the properties from the purchasers. The defendants put the plaintiff to the proof that he was born at the date of the sale and contended that the sale by the plaintiff's father was to discharge antecedent debts and for other family purposes, that the consideration was adequate, that the lands were subsequently improved by them, and that the suit filed for a declaration alone without asking for setting aside the sale was not maintainable, nor was the suit claiming possession without requiring a general partition and without impleading the other co-parcener s. It was pleaded that the suit was barred by limitation, that the plaintiffs were not entitled to mesne profits, and that the mesne profits claimed were excessive. Various issues, seven in number, were settled on these pleadings and the District Munsif in an exhaustive judgment has dealt with the several issues. He found that the plaintiff was born at the date of the alienation, that the alienation was for valid purposes and was binding on the plaintiffs, that the plaintiffs were not entitled to any mesne profits, that the suit was not barred by limitation, that the claim for improvements was exaggerated, that the only amount which the defendants would be entitled to was Rs. 40, that the suit as framed was maintainable as the plaintiffs were not bound to sot aside the sale-deed, and that as regards possession they were entitled to recover possession of the properties sold leaving it to the purchasers to file a suit for partition in respect of the plaintiffs father's share, if so minded. In the result the District Munsif dismissed the plaintiff's suit. On Appeal the Subordinate Judge stated that the only points for decision were: (1) Was the plaint mentioned alienation binding on the plaintiffs and to what extent? (2) What mesne profits if any were the plaintiffs entitled to, and (3) Were the defendants entitled to any and what compensation for improvements?

(2.) No objection seems to have been taken before him as regards the legal questions as to the maintainability of the suit or to the bar of limitation; and he held that the sale was not binding on the plaintiffs so far as their share of the plaint properties was concerned and that the defendants would have to bring a separate suit for partition, the plaintiffs being on the authorities entitled to recover possession of the entire property. As regards mesne profits he held that the plaintiffs were entitled to mesne profits and that the suit would have to go back to the District Munsif for ascertaining the amount due to them. As regards improvements, he confirmed the finding of the District Munsif that only a sum of Rs. 40 was due to the defendants for improvements. He allowed the Appeal with costs, reversed the decree of the District Munsif and remanded the suit to the District Munsif's Court for ascertaining the amount of mesne profits due to the plaintiffs, and directed the District Munsif to pass a decree in favour of the plaintiffs in the light of the above findings. Against this decree the defendants appeal.

(3.) A preliminary objection is taken that no Appeal lies as the order of remand was not passed under Order XLI, Rule 23, Civil Procedure Code, but was passed by virtue of the inherent power of the Court to order a remand apart from the provisions of that rule. There can be little doubt, that if the order was simply an order of remand not falling within Order XLI, Rule 23, it is not appealable under Order XLIII as Sub-clause (u) only refers to an order under Rule 23 of Order XLI, remanding a case. It is contended for the appellants that the decree of the Subordinate Judge is in effect a preliminary decree and that consequently although it is in form a decree remanding the suit it is appealable as a preliminary decree. We think that as the Subordinate Judge has decided that the alienation is not binding on the plaintiffs there was nothing for the District Munsif to do on remand and the decree is in effect a preliminary decree which has been wrongly drawn up as a decree remanding the whole suit. We think that the Subordinate Judge was wrong in reversing the decree of the District Munsif and remanding the entire suit for disposal.