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TaxTMI 
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TaxTMI 
2016 (12) TMI 1786
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.... in her plaint that the suit property originally belonged to her husband Kuppusamygounder, that he had obtained the same partly by inheritance and partly by purchase from one of his co-sharers, that he had settled the property on the plaintiff on 10-08-1973 under a registered deed of settlement and ever since she was in possession and enjoyment of the property. Be that as it may, some dispute arose between the plaintiff and her husband and taking advantage of the same the defendant encroached upon the suit property and hence had laid the suit. 4. Admitting that the suit property as belonging to the plaintiff's husband Kuppusamygounder as well as the mode of his acquisition of title over the same, the defendant in his written statement contended that Kuppusamygounder had not executed any settlement deed as alleged by the plaintiff, that the plaintiff was not in enjoyment of the same and that the property was in fact in the possession of Kuppusamygounder and his sons. While so, on 02-01-1998, Kuppusamygounder and his sons had sold the suit property to the defendant. Since the date of purchase, the defendant has been in peaceful possession of the suit property. 5. The Trial Cour....
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....y DW-1 was not cross-examined by the plaintiff, but PW-3 was also not cross-examined by the defendant. Therefore, for rendering substantial justice in the matter, the first appellate court remanded the matter back to the Trial Court. This order of the Appellate Court is now in challenge. 9. The only point for consideration is if the order of the first appellate Court is sustainable? 10. Challenging the correctness of the order of remand, the learned counsel for the appellant argued that:- "(i) when once it is established that the plaintiff had sold the suit property to a third party Manikantan nothing survives for the plaintiff to seek declaration of her title since whatever title that she claimed has already vested in a third party purchaser. (ii) When right to cross-examine DW-1 is not denied by the trial Court and when the plaintiff by her conduct had forfeited it despite the Court granting several adjournments for cross examination, she should not be allowed a second opportunity as there is a great possibility that she might use this opportunity to fill up the lacuna., and hence remand shall not be ordered." In law there cannot be any remand merely for the purpose of af....
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....on this specific pleading that she has prayed inter alia for delivery of possession of the suit property with mesne profits. Even otherwise inasmuch as the suit property being a vacant open agricultural land, the possession will follow title till the contrary is established. 13. The further reasoning of the trial court that since the plaintiff has sold the property pendente lite she has lost her right to prosecute the suit is also not well rooted in law. No law prevents a suitor from alienating the property which is the subject matter of the suit. The doctrine of lis pendens only envisages that any transfer of a vested interest in an immovable property litigated upon during the pendency of a litigation will be subject to its outcome, and no more. Order XXII Rule 10 CPC is only an enabling provision and grants an option to a pendente lite assignee of a right in the subject matter of the suit to get himself impleaded in it so as to continue the litigation. Nowhere it is spelt out that his transferor (a party to the suit) will correspondingly lose his locus standi to litigate. This is because notwithstanding the fact that a pendente lite transfer may convey title to the transferee un....
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....inarily, a suit is said to have been decided on a preliminary point if the trial court has either failed to consider all the issues that arise for consideration or has ignored to decide that which the pleadings in the suit require to be decided. This includes cases where burden of proof is wrongly fixed or where the case of one of the parties is failed to be considered on a misconception arising out of it. Even where a suit is decided on a preliminary point but where the evidence is still available to decide the material points in controversy in a suit, an appellate court should normally take recourse to Order XLI Rule 24 CPC and decide the case. Even if proper issues are not framed but if those who litigate have understood what they are litigating and have adduced necessary evidence, an appellate Court must attempt to finally adjudicate the case. An order of remand should be read as an exception to what is contemplated under Rule 24. The first attempt is to proceed under Order XLI Rule 24, and if it is found not possible then to explore if the case at hand falls within Rule 25 situations and only if neither is possible, should an appellate court contemplate on resorting t....