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2003 DIGILAW 478 (AP)

Vadde Anjanappa v. Vadde Hanumantappa

2003-03-25

DALAVA SUBRAHMANYAM

body2003
DALAVA SUBRAHMANYAM, J. ( 1 ) THE appellant-plaintiff filed the appeal against the decree and judgment in A. S. No. 68 of 1992 on the file of the Additional district Judge, Anantapur in dismissing the appeal and confirming the decree and judgment passed in O. S. No. 181 of 1987 on the file of the District Munsif, Kalyandurg in dismissing the suit. ( 2 ) THE brief facts of the case are as follows: the appellant-plaintiff filed O. S. No. 181 of 1987 on the file of the District Munsif, kalyandurg for perpetual injunction restraining the respondents from interfering. with his peaceful possession and enjoyment of the suit land in S. No. 7/4 admeasuring ac. 5. 10 cents situated at Tumukunta village of Kundurpi Mandal. The plaintiff contended that he purchased the suit land from the first defendant under an agreement of sale dt. 14-10-1970 and since then he is in possession and enjoyment of the property continuously and perfected his title by adverse possession. The plaintiff is a landless poor person and purchased the suit land for valid consideration. The Mandal revenue Officer also recognized his title in his proceedings dated 4-9-1987. The first defendant filed written statement denying the execution of the alleged agreement and disputed the issuing of proceedings by the mandal Revenue Officer without hearing him. The second defendant filed a memo adopting the written statement filed by the first defendant. On the above said pleadings the trial Court framed and settled the following issues for trial. (1) Whether the plaintiff is entitled for perpetual injunction as prayed for? (2) To what relief? on behalf of the plaintiff P. Ws. l to 4 were examined and Exs. A-1 to A-6 were marked. The defendant examined himself as D. W. I and Exs. B-1 to B-8 and Ex. X-1 were marked. After considering the entire evidence, the learned District Munsif came to the conclusion that the plaintiff was not entitled for injunction as prayed for and accordingly the suit was dismissed with costs. Aggrieved against the said decree and judgment, the appellant-plaintiff filed A. S. No. 68 of 1992 on the file of the Additional district Judge, Anantapur and the learned judge after hearing dismissed the appeal confirming the decree and judgment in O. S. No. 181 of 1987. Aggrieved against the said decree and judgment, the appellant-plaintiff filed A. S. No. 68 of 1992 on the file of the Additional district Judge, Anantapur and the learned judge after hearing dismissed the appeal confirming the decree and judgment in O. S. No. 181 of 1987. ( 3 ) AGGRIEVED against the decree and judgment, the appellant filed the appeal contending that the Courts below erred in dismissing the suit on the ground that the plaintiff ought to have filed the suit for specific performance based on the agreement of sale. The Courts below erred in ignoring the fact that the plaintiff filed the suit for permanent injunction which is maintainable as the plaintiff prayed for the relief on the ground of possession. ( 4 ) NOW the following substantial questions of law would arise for consideration in the second appeal. (1) Whether the Courts below erred in dismissing the suit on the ground that the suit is not maintainable for permanent injunction without filing a suit for specific performance? (2) Whether the Courts below are justified in ignoring the proceedings issued by the Mandal revenue Officer under Act 9 of 1997 which recognized the title of the plaintiff and his possession over the property? (3) Whether the lower appellate Court erred in not formulating the point for consideration? (4) To what relief? ( 5 ) POINTS 1 to 4: The appellant-plaintiff filed the suit for permanent injunction. The trial Court dismissed the suit on the ground that the plaintiff has not proved his possession and enjoyment as on the date of filing of the suit. The lower appellate Court dismissed the appeal on the ground that the suit for permanent injunction is barred without seeking relief for. specific performance of agreement of sale. ( 6 ) THE learned Advocate appearing for the appellant contended that the Courts below ignored Ex. A-1. Ex. A-1 is the proceedings issued by the Mandal Revenue officer, Kundurpi who held enquiry under act 9 of 1997 and gave a finding that the appellant-plaintiff was a landless poor person at the time of purchase and that he purchased the land for valuable consideration and he was in possession and enjoyment of the suit property. A-1. Ex. A-1 is the proceedings issued by the Mandal Revenue officer, Kundurpi who held enquiry under act 9 of 1997 and gave a finding that the appellant-plaintiff was a landless poor person at the time of purchase and that he purchased the land for valuable consideration and he was in possession and enjoyment of the suit property. The learned advocate appearing further contended that the lower appellate Court has not formulated the points for determination and therefore the suit is liable to be remanded to the lower Court for fresh disposal. He relied on a decision in Iruvanti Gopinatha Rao (died) per L. P. S. v. Vadlapudi Narayana wherein it was held that the point formulated carries no legal meaning. The learned appellate judge did not formulate the point for determination as contemplated under order 41 Rule 31 C. P. C. ( 7 ) THOUGH the plaintiff filed Ex. A-1, which is the proceedings issued by the mandal Revenue Officer, both the Courts have not considered the validity of this document. The Mandal Revenue Officer was competent to hold enquiry under the Act 9 of 1997 and after making enquiry there is a finding that the plaintiff is a landless poor and he purchased the property for valuable consideration and that he was in possession of the suit property at the time of enquiry. If that be so, the Courts below have not considered Ex. A-1. I have gone through the judgment of the lower appellate Court. The lower appellate Court formulated the point as follows: "whether the findings of the learned district Munsif are correct or not. " the point formulated above carries no legal meaning. Whatever may be the subject or issue involved in the litigation, such type of formulation of point for determination is not contemplated under Order 41 Rule 31 C. P. C. Relying on the decision cited supra, I am of the view that the lower appellate Court totally ignored the provisions contained under Order 41 Rule 31 CPC and therefore the matter has to be remanded. ( 8 ) THERE has been lacunae in the judgment of the first appellate Court which is impugned before this Court. Firstly, the first appellate Court did not formulate the points for determination. Secondly, the first appellate Court did not consider Ex. ( 8 ) THERE has been lacunae in the judgment of the first appellate Court which is impugned before this Court. Firstly, the first appellate Court did not formulate the points for determination. Secondly, the first appellate Court did not consider Ex. A-1, which is a crucial document on which the plaintiff is relying to prove his possession. For the above said reasons, it is just and necessary to remand the matter to first appellate Court for fresh disposal by formulating the points for determination and to dispose of the appeal as per the evidence on record and to come to an independent conclusion without being impressed from any of the observations made in this appeal. ( 9 ) IN the result, the second appeal is allowed and the judgment and decree in a. S. No. 68 of 1992 dated 14-6-1999 on the file of the Additional District Judge, Anantapur is set aside and the matter is remanded to the Additional District Court, Anantapur for fresh disposal according to law. The entire exercise shall be completed within a period of three months from the date receipt of a copy of this judgment in the lower appellate court. The interim orders passed by this court shall continue till the disposal of the appeal by the lower appellate Court. No order as to costs.