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2007 DIGILAW 230 (AP)

Koppu Sathiah v. Koppu Chandraiah

2007-03-02

P.S.NARAYANA

body2007
Judgment :- (Appeal under Order 43, Rule 1 (u) of CPC., against the order/decree in AS No.59 of 2000 dated 21/07/2003 on the file of the court of the I Additional District Judge, Nalgonda preferred against the order in O.S.No.185 of 1996 dated 21/09/2000 on the file of the Court of the Junior Civil Judge at Nalgonda.) Heard Sri Raja Malla Reddy, learned counsel representing the appellants and Sri M. Venkata Rami Reddy, learned counsel representing the respondent. 2. Sri Raja Malla Reddy, learned counsel representing the appellants had taken this Court through the findings recorded by the appellate Court and would maintain that no specific finding as such had been recorded that the Decree and Judgment of the Court of first instance are to be set aside. The learned counsel also would submit that, just on the ground that proper findings had not been recorded on question of limitation, an order of remand was made, and the same is not just and proper. The learned counsel also placed strong reliance on the following decisions: 1) Kota Suryanarayana and another vs. Penumatcha Lakshmipathi Raju and others ( 2002 (3) ALT 652 ). 2) P. Purushottam Reddy and another vs. Pratap Steels Limited ( (2002) 2 SCC 686 ) While making elaborate submissions, the learned counsel explained the scope and ambit of Order 41 rule 23 and Order 41 Rule 23-A of the Code of Civil Procedure (hereinafter in short referred to as ‘Code’ for convenience.) 3. Per contra, learned counsel representing the respondent would maintain that it is, no doubt, true that the learned Judge at paragraph 14 referred to the question of limitation and came to the conclusion that the question of limitation appears to have been decided by the Court of first instance with undue haste. However, the counsel would submit that this is not the only ground, but, the learned Judge also discussed about the non-consideration of the evidence available on record, and thought it fit to remand the matter for re-appreciation of the same. 4. The appellants herein, aggrieved by the order of remand made in A.S.No.59 of 2000 on the file of I Additional District Judge’s Court, Nalgonda, had preferred this Civil Miscellaneous Appeal under Order 43 Rule 1 of the Code. 5. The respondent herein is the plaintiff in O.S.No.185 of 1996 on the file of Junior Civil Judge’s Court, Nalgonda. 4. The appellants herein, aggrieved by the order of remand made in A.S.No.59 of 2000 on the file of I Additional District Judge’s Court, Nalgonda, had preferred this Civil Miscellaneous Appeal under Order 43 Rule 1 of the Code. 5. The respondent herein is the plaintiff in O.S.No.185 of 1996 on the file of Junior Civil Judge’s Court, Nalgonda. The suit was filed for declaration of title and permanent injunction in relation to the plaint schedule property. 6. On the respective pleadings of the parties, the Court of first instance settled the issues, recorded the evidence of P.Ws.1 to 5 and D.Ws.1 to 3, and also marked Exs.A1 to A12 and Exs.B1 to B4, and came to the conclusion that the plaintiff is not entitled to the reliefs prayed for and dismissed the suit. 7. Aggrieved by the same, the plaintiff carried the matter by way of appeal in A.S.No.59 of 2000 on the file of I Additional District Judge’s Court, Nalgonda, and the learned Judge allowed the appeal and made an order of remand. The said order of remand is being challenged on several grounds before this Court. 8. In Kota Suryanaryana and another vs. Penumatcha Lakshmipathi Raju and others (1 supra), while dealing with Order 41 Rule 23 of the Code, on the scope of remand, the learned Judge observed that arriving at a finding by the appellate Court on the material available on record that Judgment of the trial Court is erroneous and is liable to be reversed or set aside is a condition precedent for passing an order of remand. Reliance was also placed on the decision of the Apex Court in P. Purushottam Reddy and another vs. Pratap Steels Limited (2 supra), wherein it was held that, in normal course, High Court not to have recourse to inherent powers to order remand and after the 1976 amendment of the Code, all cases of wholesale remand are covered under Order 41 Rules 23 and 23-A of the Code and, therefore, High Court must abide by the express provisions in those Rules, so that unwarranted orders of remand resulting in keeping litigation pending unnecessarily can be avoided. There cannot be any doubt or quarrel relating to the proposition that the order of remand to be guided by the principles specified by the provisions of the Code. 9. There cannot be any doubt or quarrel relating to the proposition that the order of remand to be guided by the principles specified by the provisions of the Code. 9. The respondent in the appeal, who is the plaintiff in the suit, averred in the plaint as hereunder: “The plaintiff is the absolute owner and possessor of the land admeasuring Ac.2-00 gts. Out of Sy.No.215 Khasra Pahani No.344 situated at Mada Yadavelly village of Narketpally Mandal, Nalgonda District. The plaintiff purchased the said land on 18-7-1990 from its owner K. Dayakar Reddy for a consideration of Rs.4,000/- through a registered sale deed bearing No.2745/90 and has been in occupation and in possession of the said land as lawful owner cultivating the same and deriving the benefits by paying land revenue. The plaintiff was given title deed and ryot pass book in his name in respect of suit land recognizing his ownership and possession. The defendants have got no manner of right whatsoever to the suit land. They have been interfering with lawful and peaceful possession of the plaintiff over the suit land posing a false and fictitious interest and claiming themselves to have connection with the occupancy of the suit land being the owner of adjacent survey number. The defendants are alleged to have interfered with the peaceful possession and enjoyment of the plaintiff and thereby prevented the plaintiff from ploughing the land on 28.08.1996 at Mada Yadavelly. The boundaries of suit land are changed from the boundaries mentioned in registered sale deed since the present boundaries are as per the existing position. The plaintiff could protect his possession and enjoyment with great effort when the defendants interfered. Unless the Court grants permanent injunction in favour of the plaintiff in respect of suit land, he cannot protect his possession and there is every possibility of dispossessing him from the suit land by the defendants.” 10. In the written statement, the averments made in the plaint were specifically denied. It was also further pleaded as hereunder:- “The plaintiff is claiming title over the suit property which was alleged to have been purchased through a Regd. Sale Deed bearing No.2745/90 from one K. Dayakar Reddy for a consideration of Rs.4,000/- but he did not place any material to that effect. It was also further pleaded as hereunder:- “The plaintiff is claiming title over the suit property which was alleged to have been purchased through a Regd. Sale Deed bearing No.2745/90 from one K. Dayakar Reddy for a consideration of Rs.4,000/- but he did not place any material to that effect. Unless the plaintiff proved title of his vendor, he cannot claim title over the land purchased by him and cannot succeed in getting the relief sought. It is also submitted by the plaintiff that the revenue authorities issues ryotwari pass book and title deed in respect of the aforesaid land. The boundaries given in the registered document and the suit properties are quite different. As such it can safely be concluded that the plaintiff’s suit is not for the land purchased by him. Hence, the suit of the plaintiff is liable to be dismissed, as there is variance between the pleadings and documents filed by him. The defendants are the absolute owners and exclusive possessors of the suit land. The plaintiff wanted to grab away the land of the defendants, which is nothing but the suit schedule property. The revenue authorities also confirmed the title and possession of these defendants over the suit schedule property and a panchanama was also held to the effect that the defendants are continuing as possessors and owners over the suit schedule land. As such the defendants pray the Court to dismiss the suit.” 11. The defendants also filed additional written statement after the plaint was amended adding new relief of declaration of title. The averments in the amended plaint were denied and certain other additional facts have been pleaded. 12. Before the Court of first instance, P.Ws.1 to 5 were examined and Exs.A1 to A12 were marked on behalf of the plaintiff. On behalf of the defendants, D.Ws.1 to 3 were examined and Exs.B1 to B4 were marked. 13. The following issues were settled before the Court of first instance:- (1) Whether the suit filed by the plaintiff for permanent injunction without seeking the declaration for title is maintainable? (2) Whether the plaintiff is entitled for permanent injunction as prayed for? (3) To what relief? 14. Again the following additional issues were framed before the Court of first instance: (1) Whether the plaintiff is entitled for the relief of declaration of title without pleading denial of title of the plaintiff in the plaint? (2) Whether the plaintiff is entitled for permanent injunction as prayed for? (3) To what relief? 14. Again the following additional issues were framed before the Court of first instance: (1) Whether the plaintiff is entitled for the relief of declaration of title without pleading denial of title of the plaintiff in the plaint? (2) Whether the suit is barred by limitation? (3) Whether there is any cause of action for the plaintiff to file this suit? 15. Before the appellate Court, at paragraph 8, the following point for consideration was framed: ‘Whether the Judgment and Decree of the lower Court are sustainable?’ 16. The learned Judge proceeded to discuss with the oral and documentary evidence at paragraphs 9, 10, 11, 12 and 13 and discussed the aspect of question of limitation at paragraph 14 and ultimately made an order of remand. It is, no doubt, true that the learned Judge, while making an order of remand, on appreciation of material available on record should have arrived at a conclusion that the decree and judgment of the Court of first instance cannot be sustained and, after recording such reasons only, an order of remand to be made. It is true that, at paragraph 14, the question of limitation had been discussed and, if the remand was made only on the question of limitation, in all probability, inasmuch as such order of remand cannot be sustained, this Court, as appellate Court, would have disturbed the said order of remand. However, at paragraph 13, the following reasons had been recorded: “The evidence of defendants let in through D.Ws.1 to 3 and Exs.B-1 to B-4 has not at all been discussed in the Judgment by the trial Court. The trial Court tried to wash off it’s hands by simply nothing some difference between the boundaries of the land alleged to have been purchased by PW-1 under Ex.A-1, and the boundaries mentioned in plaint. The trial Court proceeded to decide the case only on the premise that there is difference in the boundaries mentioned above and dismissed the suit. The trial Court did not pose a question as to which of the document i.e. Ex.A-1 or Ex.B-1, which covers the land in question. The trial Court proceeded to decide the case only on the premise that there is difference in the boundaries mentioned above and dismissed the suit. The trial Court did not pose a question as to which of the document i.e. Ex.A-1 or Ex.B-1, which covers the land in question. In view of the absence of the discussion on the evidence on the side of the defendants and a positive finding with regard to acceptability or otherwise of the same, the matter requires to be remained to the lower Court for fresh disposal in accordance with law, because the lower Court merely proceeded to dispose off the case on the ground that there is change of boundaries in Ex.A-1 and the plaint overlooking a specific averment in the plaint to the effect that the boundaries of the suit land are changed from the boundaries mentioned in the registered sale deed, since the present boundaries are as per the existing possession. The lower Court seems to have not adverted it’s attention to this averment before it gave a finding with regard to change in boundaries.” 17. In the light of the reasons recorded, especially, the total non-consideration of the evidence available on record, which had been specifically pointed out, this Court is of the considered opinion that the order of remand made by the appellate Court cannot be found fault. Accordingly, the Civil Miscellaneous Appeal shall stand dismissed. No order as to costs.