(Vaddiparthi) Mangay... v. (Vaddiparthi) Venkat...

1. We uphold the preliminary objection that leave should not be granted in this case. The suit was for partition. There are two sets of properties. As regards the first of them, the defence was that the defendants were the holders of the service in respect of which the inam was granted, that they were enjoying the property by doing the service, and that consequently plaintiff was not entitled to claim his share in it. As regards the second set of properties, it was contended that the parties had become divided in respect of it long ago and that it was not open to the plaintiff to claim a repartition. Issues 1 add 2 relate respectively to the two sets' of properties. The other issues were general in their nature, and raise questions of limitation anti res judicata. The Subordinate Judge held that the first set of properties was not divisible, that the claim of the plaintiff was barred by limitation and res judicata and dismissed the suit. He gave no specific finding on the second issue. On appeal we differed from the Subordinate Judge on the question of the divisibility of the inam lands and overruled him on the questions of limitation and res judicata. In this view we remanded the suit for disposal on the merits. The two outstanding questions on which findings of fact had to be arrived at by the Subordinate Judge related to the re-partition of the second set of properties and to the accountability of the defendants for the income of the first set of properties.

2. This application has been made for leave to appeal against our judgment.

3. It was opposed on the ground, among others, that as we directed a retrial on remand, there is no final judgment against which an appeal can be preferred to the Privy Council. We think this contention is right Mr. Narayanamurthi places strong reliance on the observations of the Judicial Committee in Saiyid Muzhar Hossein v. Mt. Bodha Bibi(1). It is true that, where every issue of fact has been found by the appellate Court and the remand is directed solely with a view to give the consequential reliefs dependent upon the conclusions of the appellate Court, the judgment must be regarded as final within the meaning of that expression in Section 109, Clause (a) of the CPC. At the same time we are unable to agree with the learned vakil that, unless the judgment of the appellate Court proceeds upon a preliminary point, it should be regarded as a final adjudication. For example, there may be reversal upon a question of adoption decided by the first Court and a consequent remand for the purpose of ascertaining the extent and nature of the properties to be decreed in favour of the plaintiff. It may be that, on remand notwithstanding the finding in favour of the plaintiff on the question of adoption, he may fail to obtain any relief whatsoever in the suit. Under such circumstances it would be futile to grant leave to appeal to the Privy Council. The decision of this Court in Tirunarayana v. Gopalasami(2) supports the view we have taken. The question in each case will be whether the pronouncement by the appellate Court has given a final decision upon all the rights litigated. Nayari Venhataranga v. Venkatarama Narasimha(3) quotes with approval the earlier Madras case and we see no reason to differ from these two decisions. The Allahabad High Court considered the matter very fully in a recent Full Bench decision in Nuri Mian v. Ganges Sugar Works, Ltd.(4) and our conclusions are in accordance with that decision.

4. Mr. Narayanamurthi argued that as the judgment is final within the meaning of the Judicial Committee in Saiyid Muzhar Hussein v. Mt. Bodha Bibi in respect of the first set of properties, he is entitled to prefer an appeal in regard to it. The result of upholding this contention would be to split up a suit into a number of claims and to give the party against whom a judgment has been given upon one of them a right of appeal to the Judicial Committee. Such a course would be obviously wrong. We have therefore come to the conclusion that the judgment appealed against, notwithstanding that it gave a decision on the merits in respect of one set of properties, is not a final judgment contemplated by Section 109(a) of the CPC, and that the leave asked for should be refused. No costs.

S.N/R.K

5. Leave refused.