JUDGMENT
D. Raju, J.
1. The above appeal has been filed by the plaintiffs in O.S. No. 2 of 1985 on the file of the Court of Subordinate Judge, Mahe, who filed I.A. No. 272 of 1989 for passing of final decree for partition, against the order of the learned II Additional District Judge, Pondicherry, in A.S. No. 154 of 1986 remanding the proceedings to the trial court with a direction to the Commissioner earlier appointed to re-measure the suit property with the help of a qualified surveyor and divide the same as per the Commissioner’s report after issue of notice to both parties.
2. A preliminary decree came to be passed in the matter almost by way of consent and the defendant agreed to have the property divided into five equal shares and allot one such share to the plaintiff and the remaining four shares to defendants 1 to 4. The application for passing of final decree came to be made in I.A. No. 272 of 1985. A Commissioner was said to have been appointed and he has filed his report. The Appellant before the first appellate court, who was the second defendant was said to have filed his objections and thereupon, a revised report was said to have been submitted, on the basis of which a final decree came to be passed. Aggrieved by the same, an appeal was filed by the second defendant second respondent before the first appellate court. The learned first appellate Judge, agreed the grievance made by the appellant before him that the infirmities said to have been committed in the matter of measurement resulted in grave prejudice in the allotment of properties while passing the final decree and it is only after recording a finding about the irregularities vitiating judgment of the trial court in the final decree proceedings, the order of remand came to be made. Aggrieved, the above appeal has been filed.
3. Mr. Ishtiaq Ahamed, learned Counsel appearing for the appellants relied upon the. decisions in Jugeshwar Singh v. Bijhan Singh A.I.R. 1938 Pat. 104 and P.G. Venkataswamy v. M.K. Hussain A.I.R. 1973 Mys. 144 and Section 99, C.P.C., in support of his claim and to substantiate the challenge to the order of remand. The decision in Jugeshwar Singh’s case, is that of a Division Bench of that court, wherein it was held that a first appeal to the High Court from a final decree in a partition suit is really in the nature of a second appeal in which only questions of law and principle can be considered and the High Court should only interfere when it is shown that the lower court in its decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree. The learned Counsel relied upon the same to contend that the District Judge as the first appellate court in this case also should have seen, whether there was any scope for interference and whether the final decree was vitiated on account of any wrong application of principle of law. The provisions contained in Section 99 of the Code of Civil Procedure stipulate that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court. In the decision in P.G. Venkataswamy’s case A.I.R. 1973 Mys. 144, a Division Bench of Mysore High Court held that merely because there has been violation of 0.2, Rules 3 and 4 of the Code of Civil Procedure in the matter of clubbing more than one cause by joinder of more than one party in the same proceedings, the decision rendered in such a suit cannot be said to be vitiated on account of multifariousness, unless such multifari-ousness was shown to have resulted in violation of justice.
4. I have carefully considered all the submissions of the learned Counsel for the appellants. In my view, there are no merits whatsoever in the challenge made to the order of remand. The reliance placed upon Section 99 of the Eode of Civil Procedure is inappropriate. So, far as the facts of the case before me are concerned, it cannot legitimately be contended that the allotment of shares which has been found to be vitiated on account of certain infirmities pointed out does not affect the merits of the case. On the other hand the merits of the case. On the other hand the merits of the case will be and has been shown to have been seriously prejudiced by the wrong procedure adopted and the ultimate allotment of shares on a misconception of vital factors and mistake in the measurements. The first appellate court exercising powers under Section 96 read with Order 41 has co-extensive powers with that of the trial court and the interference can be both on questions of fact and law provided the facts go to the root of the matter and also have the tendency to affect prejudicially the merits of the case. In this case, the learned first appellate Judge while noticing the infirmities in the manner of measurement and preparation of report and the consequent error in the allotment of the properties, thought fit to set aside the allotment and remit the matter for reconsideration by directing the Commissioner to inspect the property and measure the same with the help of a Surveyor before proceeding further in the matter and the course adopted by the learned first appellate Judge cannot be said to be erroneous in law.
5. In view of the above, I do not find any merit in the challenge to the order of remand. The appeal, therefore, fails and shall stand dismissed. The learned trial Judge shall restore the proceedings to his file and take expeditious steps to have the same finalised and the matter disposed of within three (3) months from the date of receipt of a copy of this judgment. There will be no order as to costs.
