K MITCHIAMMAL Vs. J LOGANATHAN

JUDGEMENT

(1.) THE appellants are the defendants in the suit. THE suit was filed by the respondent herein against the appellants for partition and separate possession of half share in the property. THE suit was dismissed on the ground that the suit property was not the joint family property of Jothi Gounder, but it was the property of one Lakshmi Ammal. THE Plaintiff, even though declared as legitimate son of Jothi Gounder, it was held that the property does not belong to the joint family property and consequently, the relief of partition cannot be granted. Aggrieved against the same, the plaintiff/respondent herein has filed an appeal before the first appellate Court. In the appeal, the present appellants also filed a Cross-appeal challenging the findings rendered by the trial court to the effect that the plaintiff is the legitimate son of Jothi Gounder because, according to them, the plaintiff is the son born through the second wife and therefore, legally, he cannot be called as a legitimate son of Jothi Gounder.

(2.) THE first appellate Court has taken up the first appeal as well as the cross appeal for hearing together. In the course of argument, it was found that apart from the appellant in the first appeal, there were other sisters of the appellant namely daughters of the first wife of Jothi Gounder, who were not impleaded as a parties in the suit for partition. It was also found that one of the witnessess examined on the side of plaintiff/respondent herein before the court below namely PW3 is one of the daughters of Jothi Gounder, but she was also not impleaded as a party to the suit. It was also found that the question of non-impleading the necessary parties namely other daughters of Jothi Gounder in the partition suit was not raised by the defendants nor the plaintiff has chosen to implead them as party knowing fully well that they are interested persons for effective adjudication of the suit. According to the plaintiff/respondent herein, he has already examined one of the daughters of Jothi Gounder namely PW3 before the trial court and therefore, impleading the legal heirs/daughters of Jothi Gounder is not necessary. THE first appellate Court taking into consideration the curious position namely the admission of PW3 as daughter of Jothi Gounder, born through his first wife, having not been impleaded as a party but she was examined as PW3 before the trial court, thought it fit to remand the matter back to the trial court for fresh consideration as there are new sharers to be impleaded in a suit for partition and fresh adjudication is warranted.

(3.) THE first appellate Court, in a case where re-trial was considered necessary, will have the powers to remand the matter to the trial court. But, the first appellate Court should give a finding that the decree and judgment of the court below is vitiated and thereafter remand the matter. In the absence of such a finding by the first appellate Court, the order of remand passed by the first appellate Court is liable to be set aside as it is against the provisions of Order 41 Rule 23-A of CPC.