- (1.) THIS is a civil second appeal against the judgment of the Additional District Judge, Alwar, dated the 2nd March, 1949. The facts of this case are as follows: -
(2.) MOHANLAL filed a suit against Gyasiram in the court of the Munsif at Tijara on the 28th of October, 1941 for possession of a dilapidated shop with a chabutra on the basis of title. The allegations of the plaintiff were that the shop in question had been occupied by the defendant in his absence between the 18th and 26th of October, 1941 and that the defendant had put certain constructions thereon. The plaintiff therefore claimed that the possession be delivered to him and that the constructions put by the other side might be ordered to be demolished. The defendant denied the title of the plaintiff and stated that he was in possession of the property as owner for more than 30 or 35 years. The defendant also pleaded adverse possession against the plaintiff. The trial court framed three issues: - (1) Whether the property, in dispute, is owned and possessed by the plaintiff and whether the defendant, in the absence of the plaintiff, took possession of it in October, 1941? (2) Whether the plaintiff is entitled to the demolition of the new constructions made by the defendant, and to the recovery of the property? (3) Whether the defendant has been in possession of the property in dispute for 30 to 35 years and may therefore be deemed to be in adverse possession of it? The trial court dismissed the suit on the 15th of January, 1946 holding that the disputed property was in the possession of the plaintiff's father before 30 or 35 years, and that on this basis this property was to be regarded as the plaintiff's ancestral property, but that the property was in the possession of the defendant for a period of more than 12 years which disentitled the plaintiff of claim the possession of the property. On appeal, the Civil Judge decreed the suit and held that the plaintiff had successfully proved his title to the property and that the defendant had failed to establish acquisition of ownership by was of adverse possession. The case than went in second appeal to the then Alwar High Court which decided the following points finally: - (1) that the plaintiff had established his title to the disputed property. (2) that the cause of action in this case had arisen before the coming into force of Alwar State Regulation No. 4 of 1934, by which the Indian Limitation Act was made applicable to the then Alwar State. (3) that by virtue of the proviso to sec. 2 of the Regulation of 1934, Art. 56 of Schedule II of the Alwar State Civil Procedure Code (Regulation No. 1 of 1926) was applicable to this case and the period of limitation for the suit of the plaintiff in the present case was that of 20 years from the date of dispossession or discontinuance of possession or the assertion of adverse possession by the defendant or from the date of the right to possession. It was observed in the judgment of the then Alwar High Court that the frame of issue No. 3 was not happy and that the lower courts had failed to give clear findings on that issue. The case was therefore ordered to be remanded for determination of that issue alone. The issue was also recast by the High Court for the guidance of the lower court. However, the High Court did not keep the case pending on its file but after having accepted the appeal remanded it to be decided on merits on the point of limitation alone on the basis of the evidence already on the record and in the light of its decisions on other issues. The Additional District Judge. Alwar, after remand, decided the issue relating to limitation, in favour of the plaintiff. It was held by that court that the plaintiff remained in possession of the disputed property up to the time of his mother's death which it was held took place some time in the year 1926. The possession of the defendant, it was held, therefore, commenced at some time after the year 1926. The possession of the defendant was therefore held to be at the most of 15 or 16 years' duration. The suit of the plaintiff was, therefore, decreed. The defendant has now come to this Court in second appeal. The following points have been urged by the learned counsel of the appellant at the time of the hearing of this case: - (1) that this court is not bound by the decision of the then Alwar High Court as regards the issues which were determined by that court. (2) that the finding of the lower appellate court, that the defendant was in possession of the disputed property for not more than 15 or 16 years, is perverse as it is based on wrong inferences drawn from the statement of the witnesses. In support of the first point, Mr. Umrao Lal has cited the cases of Hiatunnessa Bibi and others vs. Kailash Chandra Saha (1) (17 Indian Cases 224.) and Upendralal Gupta and others vs. Jogesh Chandra Roy (2 ). It may be noted that in Upendralal Gupta and others vs. Jogesh Chandra Roy (2) (A. I. R. 1928 Cal. 186) it has been held by a Division Bench of the Calcutta High Court that an order of remand made under Order 41, Rule 25 C. P. C. decides nothing, and the reasons that the court gives for its support are given merely for its own convenience for the purpose of the determination of the appeal under Order 41, Rule 25 C. P. C. and for helping the lower court to proceed rightly in carrying out the order; and that the court, either the same or differently constituted, when determining the appeal finally, has ample Jurisdiction to go back of the views as expressed in the order remand passed under Order 41, Rule 25 C. P. C. and indeed it would fail in its duty if in deference to those views which are entitled to the highest respect, it persists in them,, although it is satisfied that they are erroneous. Similar observations appear in the other case which has been referred to above viz. , Hitaunnessa Bibi vs. Kailash Chandra (1) (17 Indian Cases 224. ). The law on this point has been correctly laid down in Nageshar Sahai vs. Mataprasad and another (2 ). We may quote the following observations from that judgment: - "a distinction has always been drawn between an order remanding the case for decision on the merits under Order 41, rule 23 (Sec 562 of the old Code), and an order under Order 41, rule 25 (Sec. 566 of the old Code), which merely remands specific issue for decision. An order of the former class is a final order, which is subject to appeal and cannot be reconsidered by the court which passed it except on review whereas an order under rule 25 is an interlocutory order which it is open to the court to reconsider. "
(3.) COMING to the facts of the present case it is clear that in remanding the case the Alwar High Court did not proceed to act under Order 41, rule 25 C. P. C. but the case was sent back after setting aside the judgment and decree of the lower court for a fresh decision on the point of limitation alone in the light of the decision of that court on other issues. The order of remand therefore cannot be treated to be one under Order 41, rule 25 C. P. C. but it shall have to be regarded as an order made in exercise of the inherent powers of that court. As the decision of the lower court was not on a preliminary issue the remand order cannot be considered to be one under Order 41 rule 23 C. P. C. The cases in Hitaunnessa Bibi vs. Kailash Chandra (1) and Upen-dralal Gupta vs. Jogesh Chandra Roy (2) (A. I. R. 1922 Oudh 238.) would therefore not apply to this case, because both those relate to remand orders under Order 41, rule 25 C. P. C. The decision of the then Alwar High Court had become final at that time and this court cannot now sit in appeal over that decision. Whatever issues had been finally disposed of by that court cannot now be reopened. The question of title to the property, the question regarding the applicability of Regulation No. 4 of 1934 and also of the applicability of Article 56 of Schedule II of the Alwar State Civil Procedure Code which were finally determined by the judgment of the than Alwar High Court cannot now be reagitated in this appeal. We would therefore now proceed to decide the case, steering clear of those points. The only point therefore which can be considered now in this case is regarding the nature and the length of the possession of the defendant. This obviously is a question of fact and the decision of the lower appellate court on this point is final, unless it can be shown by the appellant that the finding is perverse. The learned counsel of the appellant has urged that certain witnesses of the plaintiff have stated that the disputed property was not an open piece of land and the finding therefore, of the lower court that the property was an open piece of land was perverse. The learned counsel of the petitioner has however admitted that the logic of the decision of the lower appellate court is this that the plaintiff remained in possession of the property till the death of his mother and that the mother of the plaintiff is proved to have died in the year 1926. Consequently the possession of the defendant could have arisen some time after the year 1926. The learned lower appellate court did observe in its judgment that admittedly the disputed property was an open piece of land. In saying so the court probably meant to state that it was not capable of exclusive possession but this fact did not go much further in assisting the court in arriving at any finding in favour of the defendant or the plaintiff, because the court did not specifically determine the date of the commencement of the possession of the defendant. It was also not necessary for the court to do so because when the period of the possession of the defendant could not have been in any circumstance for more than 16 years the suit of the plaintiff could not be thrown out on the ground of being time-barred. The circumstance that the property was an open piece of land did not, therefore, mean much to the parties. Nothing was addressed to this court as regards the finding of the lower appellate court about the year of the death of the plaintiff's mother or as regards the possession of the plaintiff of the suit property till the time of the death of the plaintiff's mother. Taking these findings to be correct the conclusion is irresistible that the possession of the defendants was not more than 16 years old at the time of the filing of the suit. Under these circumstances, the second point of the appellant also fails. 14. This appeal is therefore dismissed and the decree of the lower court is confirmed. The plaintiff shall be entitled to the costs of this court and of both the courts below from the defendant. . ;