JUDGMENT
Das, J.
1. This appeal is directed against the order of the learned District Judge of Muzaffarpore, remanding the case for rehearing to the Court of first instance. There is also a revision petition under Section 115 of the Code of Civil Procedure complaining against the order passed by the learned District Judge.
2. A preliminary objection has been taken on behalf of the respondents to the effect that no second appeal lies to this Court. In order to determine this point it is necessary to see whether in remanding the case to the Court of first instance the learned District Judge exercised his inherent power recognised and preserved in Section 151 of the Code of Civil Procedure, or whether he acted under the provisions of Order XLI, rule 23. If his order is an order under Order XLI, rule 23, then clearly an appeal lies to this Court under Order XLIII, rule 1 (u) of the Code. If his order, on the other hand, purports to be an order in the exercise of his inherent power then equally clearly no appeal lies to this Court, although in a proper case this Court would have ample jurisdiction to revise that order.
3. Now in order to understand the judgment of the Court below it is necessary to see what the rival oases of the parties were in the Court of first instance. The plaintiff’s suit was a suit for declaration of his title to and for confirmation of possession of certain shares in an Ijmali estate of which particulars are given in the plaint. The plaintiff did ask for an alternative relief for possession, but the Courts below have concurrently found that the plaintiff was in possession of the shares claimed by him, to that we must regard his suit as a suit for declaration of title and for confirmation of possession. Shortly stated, the plaintiff claimed 2 annas 16 gandas odd as his ancestral and reversionary share in the estate and also 8 annas as a share purchased by him in execution of a mortgage decree against the previous holder of the share. He claimed this share in an Ijmali estate as a result of a partition held in the year 1893. It is conceded that this Ijmali estate belonged to the plaintiff and defendant No. 1 and defendants fourth parties. The plaintiff’s case was that previous to the partition of 1896 he had 2 annas 16-gandas odd share in the Ijmali estate and that he was in possession of that share and that subsequently to the partition he acquired 8 annas share in the estate by purchase at a sale held in execution of a mortgage decree of which share also he was in possession. He complained that the refusal of the Land Registration Department to register his name in respect of the entirety of the shares claimed by him threw a cloud on his title and that accordingly he was compelled to come to Court to seek declaration of his title in respect thereto.
4. On the pleadings of the parties issues were framed by the Court of first instance, of which the fourth issue ran as follows: ”What is the extent of plaintiff’s share in the disputed property? Can he recover any share of the disputed property in this suit?” The learned Additional Subordinate Judge, having carefully considered the evidence adduced before him, came to the conclusion that the plaintiff’s ancestral and reversionary share in the estate was not two annas 16 gandas as claimed by him but was one-anna 3 gandas and 1 kouri. So far as his purchased share is concerned, he found that the plaintiff had proved his title to the whole of it. In the result the learned Additional Subordinate Judge made a declaration in the plaintiff’s favour as to his title to 1-anna 3-gandas and 1 kouri and eight-annas share in the new estate. It will be noticed that there was no decree for possession, Obviously the learned District Judge accepted the case of the plaintiff that he was in possession of his share.
5. From this decree there were no less than three appeals and one cross appeal to the Court of the learned District Judge. The defendant No. 1 appealed from so much of the decree as was against his interest. This appeal was No. 75 of 1917. The plaintiff himself, being aggrieved by the refusal of the learned Additional Subordinate Judge to declare his title to the entirety of 2 annas 16 gandas claimed by him, preferred a cross-appeal to that Court. It appears that defendant No. 2 and defendants Nos. 3–9 preferred separate appeals to the Court of the District Judge, the appeal of defendant No, 2 being No. 90 of 1917 and the appeal of defendants Nos. 3–9 being numbered Appeal No. 65 of 1917. Appeal No. 65 of 1917 was, however, dismissed for default by the learned District Judge, so that on the day when the learned District Judge took up the case he had two appeals and a cross-appeal before him; Appeal No. 75 of 1917, No. 90 of 1917 and a cross-appeal preferred by the plaintiff.
6. Mr. Sheepshanks, who heard the appeals in the first instance, being of opinion that the learned Additional Subordinate Judge should have ascertained the shares of the defendants in order to determine in what proportion the shares awarded to the plaintiff were to be taken from the defendants, framed an additional issue and remanded that issue for retrial by the Additional Subordinate Judge. That additional issue was “What are the respective shares of the several defendants? ‘ Mr. Sheepshanks obviously acted under Order XLI, rule 25, and the plaintiff could not challenge that order by an appeal to this Court. Nor was it necessary for him to challenge that order because it prejudiced nothing which had already been adjudged in his favour by the Additional Subordinate Judge. In my view, the order of Mr. Sheepshanks was wrong and if it had not been a consent order it could not be supported. On the pleadings of the parties the question of the extent of shares of the defendants did not directly arise. It was not a suit for partition nor was it a suit for possession. I can quite understand that if the Court had to pass a decree for possession in favour of the plaintiff against several defendants having distinct interests in the estate, it might be necessary to determine the shares of the defendants in order to enable the Court to say in what proportion the shares awarded to the plaintiff were to be taken from the defendants. But the suit of the plaintiff was, in my judgment, not a suit for possession, nor did the Court of first instance give him a decree for possession. Therefore, in my view, the issue framed by Mr. Sheepshanks did not arise at all. Mr. Sheepshanks should not have framed an additional issue which did not arise at all in the case and remanded that issue for trial by the Court of first instance. But it is abundantly clear that Mr. Sheepshanks did not intend that the question of plaintiff’s share should be re opened on remand. He obviously thought that in order to give complete relief to the plaintiff it was necessary for him to know what were the respective shares of the defendants in the estate.
7. The Additional Subordinate Judge in his judgment on remand said that it was impossible for him to determine the shares of the defendants unless it was open to him to reconsider the question of the plaintiff’s share in the estate. Rightly or wrongly he pointed out that if the shares of the plaintiff were to remain as initially determined by him, it might be that on his adjudication of the respective shares of the defendants the total might exceed sixteen annas. With this expression of opinion he sent the case back to the Court of the learned District Judge. When the matter came before the learned District Judge, Mr. Boyoe this time, that learned Judge took the view that the whole case should be remanded to the Court of first instance and remanded the whole case by the order which that learned Judge passed on the 11th of April 1919. It is against this order that the present appeal and application are directed.
8. In order to appreciate the preliminary objection raised by the learned Vakil on behalf of the respondents, it is necessary to see under what authority the learned District Judge acted in remanding the case to the Court of first instance. It is conceded that he did not and could not have acted under rule 25 of Order XLI. The question is, did he act under rule 23, Order XLI, or did he act in the exercise of his inherent power?
9. It is remarkable that the learned District Judge gives no inclination whatever in his judgment as to the jurisdiction which he has exercised in remanding the case to the Court of first instance. There is, however, one line in his judgment which suggests that he acted in the exercise of his inherent power recognised and preserved by Section 151 of the Code. I will accept the argument advanced to ma by the learned Vakil on behalf of the respondent and assume that the learned District Judge acted in the exercise of his inherent power under Section 151 of the Code. One consequence of this is that the appeal preferred by the appellant is incompetent and must accordingly be dismissed. I have still to deal with the revision petition of the plaintiff and if I am satisfied that in acting as he did the learned Judge exercised a jurisdiction not vested in him by law or that he acted in the exercise of his jurisdiction illegally or with material irregularity, I have complete power to set aside the order of the learned District Judge.
10. The power of the lower Appellate Court in remanding in oases other than those specified in Order XLI, rule 23, is undoubted, but it is a power which can only be exercised for the ends of justice. It has been said that Section 151 of the Code confers no new power upon tie Court. It merely recognises and saves all the powers which a Court had for doing justice irrespective of any provision of the Code of Civil Procedure and, I may add, inspite of the provisions of the Code of Civil Procedure. We might take Section 151 of the Code then as the legislative recognition of what the Courts could always do for the ends of justice. Just because the Courts have wide powers when acting within their jurisdiction to make such orders as may be necessary for the ends of justice, it is necessary that the limits of the jurisdiction should be clearly recognised and carefully guarded.
11. Now what are the limits of the powers of the Court to act in the exercise of its inherent power? It seems to ma that the Code itself which, as it has been said recognises and preserves that power gives a sufficiently clear answer to the question. The Court may pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In these words, you have the limits on the jurisdiction of the Court to act in the exercise of its inherent power. In my view, the order passed by the Court must show, on the face of it, that such an order was necessary for the ends of justice or to prevent abuse of the process of the Court.
12. It is not urged before ma that the order complained of was passed to prevent the abuse of the process of the Court. It is remarkable that the learned Judge does not say anywhere in his order that the order was necessary for the ends of justice, but he does say that there was no proper trial of the case. But I do not think that the mere fact that there was no proper trial of the case in the first Court is sufficient by itself, without farther facts, to vest the lower Appellate Court with power to remand a case in the exercise of its inherent jurisdiction. The Full Bench of the Calcutta High Court in the case of Abdul Karim Abu Ahmed Khan Ghaznavi v. Allahabad Bank Ltd. 41 Ind. Cas. 598 : 26 C.L.J. 49 : 44 C. 929 : 21 C.W.N. 877 expressly refused to answer the question whether it was competent to a Court to remand a case in which in the opinion of that Court there had been no proper trial. The learned Chief Justice of that Court in the course of his judgment said as follows: “As regards the second part of the reference,” that is to say, the question which I have just stated, “I think on further consideration that it is couched in too general terms, and that an answer to such a general question might lead to difficulty and misapprehension and inasmuch as the answer to the first part of the reference is really sufficient to dispose of the matter, I do not think it necessary to give a specific answer to the second part of the reference.” Mr. Justice Woodroffe, in the same case, said as follows: “The second part of the reference is in such wide terms that I feel a difficulty in answering it in a manner which will not lead to misapprehension. Thus the words a ‘proper trial’ might include oases within Order XLI and an answer in the affirmative might enable the Courts to order wrongly a new trial although the particular case ought to be dealt with under the provisions of Order XLI.” It is, to my mind, quite clear that the mere fact that there has not been a proper trial of the case apart from other circumstances in the case is not sufficient to vest the Appellate Court with jurisdiction to remand the case in the exercise of its inherent power. I must not be understood as suggesting that the Court has no power to order a remand when there has been no proper trial of the case. It may often happen that owing to some neglect on the part of the Court itself there has been no proper trial of the case. When the neglect is on the part of the Court itself, the Appellate Court would have ample jurisdiction in the exercise of its inherent power to remand the case for further trial. But the question is if owing to the neglect or default on the part of any of the parties to the litigation there has been no proper trial of the case, is it open to the Appellate Court to remand the case to the Court of first instance? I am of opinion that there is no such power at all in the lower Appellate Court in the exercise of its inherent power.
13. It is necessary, therefore, to consider the order of the learned Judge to see whether he had the power necessary for the ends of justice to remand the case to the Court of first instance. His reasons may be given in his own words: * It appears to me that the case has not been properly tried, since there has been no determination as to the share or shares of the defendants from which the share declared to be in the plaintiffs possession is to be taken. Any judgment like the present one that does not take into account the whole 16 annas in the patti will only lead to further litigation, and since all the persons interested in the patti are on the record, there is no reason why it should not be finally and completely determined.” Speaking with the utmost respect, I do not see how there has not been a proper trial of the case because the Court of first instance did not determine the shares of the defendants. Nor do I see how the shares are to be taken from the defendant since the lower Appellate Court found that the plaintiff was in possession of the shares. I can quite understand, as I have said before, that if the Court of first instance had passed a decree for possession against different defendants having distinct shares in the estate without determining the proportion in which the share awarded to the plaintiff was to be taken from the defendants, there would be something in the decree which might make it unworkable and the lower Appellate Court in the ends of justice might find itself compelled to remand the case for determination of an essential issue in the case. But that is not the case here. The plaintiff asks for a declaration of his title to certain specific shares in the estate, and it was not necessary in order to give complete relief to the plaintiff that the shares of the defendants should be determined. It may be said, of course, as was said in this Court by the learned Vakil for the respondents, that if the defendants succeeded in proving that they own between themselves such shares in the estate as would make it impossible for the plaintiff to have the share claimed by him because the whole estate consists only of 16 annas, the share of the plaintiff must necessarily be reduced. In other words, the question of the shares of the defendants was never directly in issue in the suit, as it would be in a suit for partition or in a suit for possession, though it was incidentally in issue for the purpose of determining the shares which ought to have been adjudged to the plaintiff. But if that question was incidentally in issue in the Court of first instance, the defendants had every opportunity to adduce all the evidence bearing on that point. Either they have produced that evidence or they have not produced that evidence, If they have produced that evidence, then it was open to the lower Appellate Court to take that evidence into consideration in determining what are the proper shares of the plaintiff in the estate. If they have not produced that evidence, surely the ends of justice do not demand that there should be a remand in order that the defendants may have another opportunity of strengthening their case by producing such evidence as they ought to have produced in the first instance.
14. Nor do I see why, because owing to the neglect and default on the part of the defendants there may be further litigation between them, the plaintiff’s shares should again be put in the melting pot. On the judgment of the Court of first instance the plaintiff has proved his title to certain specific shares in the estate. It may be that if the defendants had produced all the evidence in the first instance, the plaintiff would have been unable to prove his title to the entirety of the shares claimed by him. It may be that owing to their default and neglect there may be litigation as between themselves as to their respective titles to the remaining shares, but the plaintiff having established his title to certain specific shares, those shares can again be drawn into controversy in any future litigation as between the defendants. Why then should the question of his title be re-investigated? I can see no justice in the course proposed by the learned Judge. It will only encourage the belief that it is unnecessary for the parties to be diligent in the first instance because the lower Appellate Court has always the power to remand a case in order to give the parties sufficient opportunity to produce their evidence. In my judgment, the order of the lower Appellate Court does not, on the face of it, show that in the interest of justice it was necessary to pass the order which he did. That being my view, I must allow the revision application and set aside the order of the learned District Judge ordering a remand of the case and direct the learned District Judge to hear the appeals on merits.
15. The Stamp Reporter has drawn my attention to the fact that there is a deficiency in the Court fee amounting to Rs. 19-8 0 due from the respondent. Let the deficiency be made good in the Court below before the appeals are beard. I make no order as to costs.