Decided on January 27,1953



Mack, J. - (1.) The appellant is defendant 3. The appeal is against a wholly untenable order passed by the learned District Judge of Coim-batore remanding O. S. No. 188 of 1947 on the file of the District Munsif's Court, Dharapuram, for fresh disposal with an opportunity to be given to the parties to adduce additional evi-dence. The plaintiff, who sued in 'forma pau-peris' for partition and separate possession of some property, is the son of the appellant's brother. The appellant was in the position of an alienee of certain items of property. The District Munsif who first heard the suit partially decreed it and in A. S. No. 63 of 1949 the suit was remanded for fresh disposal on the ground, it would appear, that the evidence and the findings were incomplete. Subsequent to this remand, P. Ws. 2 and 3 and D. Ws. 3 to 6 were examined.
(2.) The learned District Munsif found on all the issues framed and again gave the plaintiff a partial preliminary decree. The learned District Judge again remanded the suit for fresh disposal after confirming the findings of the learned District Munsif on issue No. 2 to the effect that a sale dated 8-12-1937 was not binding on the plaintiff. As regards the finding on Issue No. 1 he expressed his dissatisfaction as to the manner in which the learned District Munsif dealt with it and remanded the whole suit for fresh disposal in the light of certain observations which are extremely difficult to follow giving the parties a second opportunityto adduce additional evidence. Nowhere In his order is there reference to the first remand.
(3.) The learned District Judge criticised the learned District Munsif as regards the following observation he made: "A perusal of the evidence of D. Ws. 1 and 6 will convince that Rangaswami Naicker was a trustee not only to defendant 1 but to various persons of his village." It may be mentioned that defendant 1 was no other than the grandfather of the plaintiff and the father of defendant 3. The District Judge considered that the trial Court had perfunctorily left the task of going through the evidence and discussing it to be done by someone else. In a prior portion of his judgment the District Munsif expressed the view that the evidence of D. Ws. 3 to 6, that is, those examined after remand had been purchased. The learned District Judge should certainly not have remanded the suit a second time for disposal, in the circumstances with a further opportunity to the parties to adduce additional evidence. All the evidence was on record and it was the clear duty of the lower appellate Court to have gone into it, found also on the other issues and finally disposed of the appeal. The learned District Judge in his remand order considered further that two other issues were necessary and directed them also to be tried and determined.;

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