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2013 DIGILAW 823 (AP)

Vidya Sagar v. J. Balaji Singh

2013-09-26

M.S.RAMACHANDRA RAO

body2013
Judgment : 1. This Civil Miscellaneous Appeal is filed under Order 43 Rule 1(u) of the C.P.C. challenging the judgment and decree dt.17-02-2012 in A.S.No.42 of 2010 of the Family Court-cum-VI Additional District Judge, Kadapa allowing the appeal and remitting the matter back to the Court of Senior Civil Judge, Kadapa. 2. The appellants are defendant Nos.1 to 7 in the suit O.S.No.65 of 2005 on the file of Senior Civil Judge, Kadapa. The 1st respondent herein/plaintiff filed the said suit for declaration of his title to the plaint schedule property and for a consequential permanent injunction restraining the defendants from interfering with his alleged possession and enjoyment of the plaint schedule property. The plaint schedule property is a vacant site of extent Ac.0.05 cts in D.No.238 and Ac.0.10 cts in D.No.239/1B in 3rd ward in Kadapa Municipality. 3. In the plaint, the plaintiff contended that the plaint schedule property belonged to one R.Seetha Bai, wife of late Ram Singh, who got it under a Will Ex.A-1 dt.09-12-1984 executed by his brother Sundar Singh; that she and Ram Singh had no issues and they adopted the plaintiff as their son; that she executed a registered Will Ex.A-2 dt.21-03-1986 in his favor and thus, he became the owner of the property after her death. He contended that the defendants, who are neighbors of the plaintiff on the northern side of the plaint schedule property, are trying to encroach into the plaint schedule property with the help of unsocial elements; that he protested and requested them to take measurements of the property but they failed to accept his request; that the 8th defendant Municipal Corporation/2nd respondent herein erected a board stating that the plaint schedule property belongs to it; that he got issued a notice to it to remove the board; though the 8th defendant had no right, title or interest in the property, yet it constructed a road in part of the plaint schedule property on the northern side and also on the southern side; and therefore, he had to file the suit for the above reliefs. 4. The 2nd defendant filed a written statement denying the plaint averments. He denied that the plaintiff is the adopted son of Seetha Bai and Ram Singh. 4. The 2nd defendant filed a written statement denying the plaint averments. He denied that the plaintiff is the adopted son of Seetha Bai and Ram Singh. He contended that his father by name David Alfred Cole purchased the property of extent Ac.0-62 cents in Sy.No.238, 239/1 of Nagarajupalli village from one Mesa David and Robert Felic Cook; that the vendors had no surplus land in the said Sy.Nos. to sell Ac.0-10 cents to Sundar Singh as alleged by the plaintiff; David Alfred Cole was in possession of the property till his death on 07-08-1962 and on his death, the property devolved upon the defendant Nos.1 to 7, his legal heirs; the entire property was being assessed to tax in the name of David Alfred Cole since 1941 and the plaintiff and his predecessors in title neither paid any taxes nor have filed any record to show that the property in dispute stands in their name; Sundar Singh never objected to the enjoyment of the property by late David Alfred Cole; that the present suit is filed after lapse of 60 years with manipulated and concocted facts; and that there is no question of the defendants trying to encroach upon the plaint schedule property as they have always been in possession and enjoyment of the same, being the legal heirs of David Alfred Cole. They therefore, prayed that the suit be dismissed. 5. An additional written statement was also filed by 2nd defendant contending that plaintiff had failed to implead all the legal heirs of David Alfred Cole; that even though 5th defendant is alive, he is shown as dead; that 7th defendant is a resident of U.S.A.; that the plaintiff subsequently amended the boundaries to the plaint schedule property originally mentioned in the plaint which are contrary to what were mentioned initially; that the amended boundaries do not conform to the boundaries available on the ground; this establishes that the plaintiff was not in possession and enjoyment of the plaint schedule property at any point of time; the Will dt.09-12-1984 is fabricated after the death of Sundar Singh and in order to show that it is a genuine one, the plaintiff created Ex.A2 Will dt.21-03-1986 of Seetha Bai. 6. Defendant Nos.3 and 4 adopted the written statement of defendant no.2. 6. Defendant Nos.3 and 4 adopted the written statement of defendant no.2. The defendant no.3 filed an additional written statement stating that the plaintiff is put to strict proof of both the Wills and contended that the Ex.A1 Will is inadmissible in evidence and it is fabricated because Sundar Singh was literate and was able to put his signature whereas Ex.A-1 contains only his thumb impression. It is also denied that the plaintiff is the adopted son of Seetha Bai and Ram Singh. 7. The 8th defendant did not file any written statement. 8. The trial Court framed the following issues and additional issues: “issues framed on 18-12-2002 are : 1. Whether the suit is bad for non-joinder of necessary parties? 2. Whether the plaintiff is having locus-standi to file this suit? 3. Whether the plaintiff is entitled to restrain the defendant No.2 from interfering with peaceful possession and enjoyment of plaint schedule property? 4. To what relief? Additional issue framed on 23-9-2004 is: 1. Whether the plaintiff is entitled for declaration of his title over the suit property? Further issues framed on 22-1-2009 are: 1. Whether the plaintiff is entitled for declaration of his right over the suit schedule property? 2. Whether the plaintiff is entitled for permanent injunction in respect of the suit schedule property against the defendants? 3. To what relief?” 9. Before the trial Court, the plaintiff examined P.Ws.1 to 3 and marked Exs.A-1 to A-18. The defendants examined D.W.1 and marked Exs.B-1 to B-8. Before the trial Court, the plaintiff did not file the original of Ex.A-1 dt.09-12-1984, the Will allegedly executed by Sundar Singh in favor of Seetha Bai but filed only a photocopy attested by the then Municipal Health Officer, Kadapa Municipality. He also did not examine the scribe or the attestors of Ex.A-1 Will or A2 Will. He also did not examine any witnesses to establish that he was the adopted son of late Seetha Bai. 10. He also did not examine the scribe or the attestors of Ex.A-1 Will or A2 Will. He also did not examine any witnesses to establish that he was the adopted son of late Seetha Bai. 10. By judgment and decree dt.31-12-2009, the trial Court dismissed the suit holding that the original of Ex.A-1 was not filed; no explanation is furnished by plaintiff for not producing the original; he did not examine the attestors of the said Will or its scribe to prove it’s execution by Sundar Singh; he failed to explain why the thumb impression of Sundar Singh is found on the Will when he admitted in cross examination that Sundar Singh was an educated person and therefore could affix his signature; P.Ws.2 and 3 are not attesting witnesses of Ex.A-1 nor persons in whose presence, the said Will was allegedly executed by Sundar Singh; therefore, the execution of the said Will is not proved and consequently Seetha Bai did not get any right, title or interest in the plaint schedule property under Ex.A1; therefore, Ex.A-2 Will dt.21-03-1986 executed by Seetha Bai in favor of the plaintiff did not convey any title to the plaintiff; that even in respect of this Will, the plaintiff did not examine any attestors or scribe; that he also did not lead any evidence to prove that he was the adopted son of Seetha Bai and Ram Singh. 11. Aggrieved thereby, the plaintiff filed A.S.No.42 of 2010 before the Family Court-cum-VI Additional District Judge, Kadapa. 12. The lower appellate Court held that the plaintiff did not examine any witness to prove the Wills Exs.A-1 and A-2 as required under Section 68 of the Evidence Act, 1872. 11. Aggrieved thereby, the plaintiff filed A.S.No.42 of 2010 before the Family Court-cum-VI Additional District Judge, Kadapa. 12. The lower appellate Court held that the plaintiff did not examine any witness to prove the Wills Exs.A-1 and A-2 as required under Section 68 of the Evidence Act, 1872. It noted that the plaintiff filed I.A.No.211 of 2011 for receiving as additional evidence, a registered Will dt.04-05-1968 allegedly executed by Ram Singh, husband of Seetha Bai with regard to adopting the plaintiff about 22 years back along with several other documents; that the evidence already adduced by both parties is not sufficient to establish their claims; as per written statement of 2nd defendant, both parties had applied for survey of the suit site prior to the filing of the suit ; that in the said survey it came to light that Sundar Singh had no site at all and realizing the same the plaintiff rushed to the Court and obtained temporary injunction by misrepresenting the facts; both parties did not file the survey report and suppressed the records; plaintiff did not produce consistent evidence to support his contention with regard to his possession and also his right to file the suit claiming plaint schedule property; although defendants claimed an extent of Ac.0-62 cents relying on Exs.B-1 to B-6, during the course of evidence, D.W.1 restricted his claim to Ac.0-50 cents and also pleaded ignorance with regard to location of the said area on the ground; that the dispute could be resolved by placing the Surveyor report with regard to the actual extent on the ground; further evidence is required on both sides to reach a conclusion and decide the case. It therefore set aside the judgment and decree of the trial Court and remitted the matter back to the trial Court, to give opportunity to both parties to adduce further evidence on all the documents already produced and also documents filed in the 1st appellate Court as additional evidence and to dispose of the suit afresh. 13. Aggrieved thereby, this Civil Miscellaneous Appeal is filed by defendant Nos.1 to 7. 14. Heard Sri V.R. Reddy Kovvuri, learned counsel for the appellants and Sri D.Seshasayana Reddy, learned counsel for the 1st respondent and Sri Ch. Venkat Yadav, learned counsel for 2nd respondent. 15. 13. Aggrieved thereby, this Civil Miscellaneous Appeal is filed by defendant Nos.1 to 7. 14. Heard Sri V.R. Reddy Kovvuri, learned counsel for the appellants and Sri D.Seshasayana Reddy, learned counsel for the 1st respondent and Sri Ch. Venkat Yadav, learned counsel for 2nd respondent. 15. The learned counsel for the appellants contended that the lower appellate Court, having concurred with the findings of the trial Court that the plaintiff failed to prove the execution of Exs.A-1 and A-2 Wills, erred in setting aside the judgment and decree of the trial Court and remitting the matter back to the trial Court for fresh consideration and it ought to have dismissed the appeal. Merely because there were some discrepancies in the evidence of D.W.1, it is not open to the lower appellate Court to set aside the judgment of the trial Court and remand the matter back to it because the plaintiff has to succeed on the strength of his own case and not on the weakness, if any, of the defendants. He therefore prayed to set aside the judgment and decree of the lower appellate Court. 16. The learned counsel for 1st respondent/plaintiff contended that the judgment of the lower appellate Court is valid and proper; that cogent reasons were given by the lower appellate Court to justify the remand; that no prejudice is caused to the defendant Nos.1 to 7 on account of the remand; and therefore, the appeal be dismissed. 17. I have noted the submissions of the respective parties. 18. In Narayanan Vs. Kumaran and others ( (2004) 4 SCC 26 ), the Supreme Court held that an appeal under Order 43 Rule 1(u) of C.P.C. should be heard only on the grounds enumerated in Section 100 C.P.C. and that the appellant in such an appeal is not entitled to agitate questions of facts. It also held that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate Court. 19. This being the scope of this appeal, I will now consider whether it was appropriate for the lower appellate Court to have remitted the matter back to the trial Court, in the facts and circumstances of the case. 20. 19. This being the scope of this appeal, I will now consider whether it was appropriate for the lower appellate Court to have remitted the matter back to the trial Court, in the facts and circumstances of the case. 20. As noted above, the trial Court found that the plaintiff failed to prove the due execution of Exs.A-1 and A-2 in the manner required by Section 68 of the Evidence Act, 1872. It also held that the plaintiff did not prove that he was the adopted son of Seetha Bai. The trial Court did not go into the question as to what are the boundaries of the plaint schedule property in view of its conclusion that the plaintiff did not prove Exs.A-1 and A-2 Wills. 21. The lower appellate Court agreed with the trial Court that the plaintiff did not prove the due execution of Exs.A-1 and A-2 Wills. As regards the adoption of the plaintiff, it held that in O.S.No.90 of 1986, a Will dt.04-05-1968 executed by Ram Singh was filed as Ex.A-1 and in the said suit, the plaintiff was declared as the adopted son of Seetha Bai and that the judgment in the said suit was marked as Ex.A6. 22. Even if the plaintiff is the adopted son of Seetha Bai, unless the plaintiff proves that she got the property from Sundar Singh under Ex.A-1, the plaintiff cannot succeed in the suit. Admittedly, the plaintiff failed to prove the due execution of Ex.A-1. The lower appellate court had also held that plaintiff did not produce consistent evidence to support his contention with regard to his possession and also his right to file the suit claiming the plaint schedule property. Merely because the plaintiff filed I.A.No.211 of 2011 to mark the Will dt.04-05-1968 of Ram Singh and certain other documents, in my opinion, the lower appellate Court ought not to have set aside the judgment of the trial Court and remanded the matter to the trial Court for fresh consideration. 23. In Ashwinkumar K.Patel Vs. Upendra J.Patel and others ( AIR 1999 SC 1125 ), the Supreme Court held: “7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. 23. In Ashwinkumar K.Patel Vs. Upendra J.Patel and others ( AIR 1999 SC 1125 ), the Supreme Court held: “7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary” 24. In P.Purushottam Reddy and another Vs. M/s. Pratap Steels Ltd., ( AIR 2002 SC 771 ) the Supreme Court held that an appellate Court should be circumspect in ordering a remand when the case is not covered by Rule 23 or Rule 23-A or Rule 25 of C.P.C. and that an unwarranted order of remand gives the litigation an undeserved lease of life and must therefore be avoided. 25. In Municipal Corporation, Hyderabad Vs. Sunder Singh ((2008) 8 SCC 485), the Supreme Court, considered the scope of Order 41 Rule 23 of C.P.C. and declared: “15.Order 41 Rule 23 of the Code reads thus: “23. 25. In Municipal Corporation, Hyderabad Vs. Sunder Singh ((2008) 8 SCC 485), the Supreme Court, considered the scope of Order 41 Rule 23 of C.P.C. and declared: “15.Order 41 Rule 23 of the Code reads thus: “23. Remand of case by Appellate Court.—Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand.” 16. The amendment which is applicable for the State of Andhra Pradesh is same as that of the State of Madras, which reads as under: “(a) After the words ‘the decree is reversed in appeal’, insert the words ‘or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case’; and (b) delete the words ‘if it thinks fit’, occurring after the words ‘the appellate court may’.” 17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.” 26. In view of the above declaration of law by the Apex Court, I am of the opinion that the lower appellate Court, having held that the plaintiff failed to prove Exs.A-1 and A-2 Wills or his possession of the plaint schedule property, and having confirmed the findings of the trial Court in that regard, acted perversely in setting aside the judgment and decree of the trial Court and remitting the matter back to the trial Court. Assuming that the lower appellate Court felt that the additional documents filed by the plaintiff in the appeal before it have some bearing on the case, nothing prevented it from considering the same, giving opportunity to both parties to lead evidence and deciding the appeal since it has all the powers of a trial Court. In my opinion a remand cannot be directed to enable a party to fill up the lacuna in his evidence in the trial Court. 27. In Saraswathi Devi Vs. J.Satyanarayana Raju (1985(2) ALT 478), this Court held: “….. The power under Order XLI Rule 23 of the Code of Civil Procedure is of wide amplitude and of a discretionary nature, but the discretion should not be exercised arbitrarily but with circumspection guided by sound and reasonable judicial principles capable of being corrected by the Court of appeal. It should not be a substitute for laxity but be stemmed from the need to render substantial justice. The order of remand should indicate sufficient and cogent reasons for remitting the matter for re-trial. It is to be remembered that when re-trial is ordered, it amounts to allowing the party to fill in the lacuna crept at the trial with eyes wide open to the basis of the pleadings and issues raised and the trial concluded. So the parties have to bear the consequences thereof. It is to be remembered that when re-trial is ordered, it amounts to allowing the party to fill in the lacuna crept at the trial with eyes wide open to the basis of the pleadings and issues raised and the trial concluded. So the parties have to bear the consequences thereof. The order of remand should not, generally speaking, be ordered when the defect in the proceedings has been made due to the negligence or default on the part of the defaulting party who will have the advantage of the remand. The mere fact that the evidence on record is not sufficient to enable a Court to come to a definite conclusion on an issue or point is not a ground to remit the matter. It is also to remember that the mere fact that the parties did not have an opportunity of producing all the evidence they needed before the trial Court, is not also a relevant circumstance unless the parties are taken by surprise. There is a danger that the order of remand of the court would cause lurking apprehension, may be unfounded, in the mind of the court below that there is something wrong in the judgment and it needed correction. However carefully the order may be worded, the danger of such an impression cannot easily be erased from the mind of the court below. The appellate court must therefore be circumspect in that regard. The appellate Court should consider whether the party succeeding in the trial Court would be met with undue hardship of further litigation and expense and also whether injustice would be gone by the order of remand. Keeping those circumstances in view, though the power of remand is of wide discretionary one, it should be exercised sparingly and with circumspection ultimately the ends of justice.”(emphasis supplied) 28. Moreover, when the lower appellate Court had considered the evidence on record and has concluded that the plaintiff has failed to prove Exs.A-1 and A-2 and that the plaintiff did not produce consistent evidence to support his contention with regard to his possession and also his right to file the suit claiming the plaint schedule property, it is un-understandable as to how it can set aside the judgment of the trial Court which also took the same view. A learned single Judge of this Court in K.Sriramulu Vs. A learned single Judge of this Court in K.Sriramulu Vs. K.V. Radhakrishna Murthy (1985 (2) ALT 534) held that an order of remand made without coming to a conclusion that the decision of the trial Court is wrong and that it is necessary to reverse or set aside the decree, is illegal; that the appellate Court has to consider the evidence on record and then has to arrive at a conclusion whether the finding recorded by the trial Court cannot be supported by evidence on record; and that in considering whether the remand is necessary or not, the conduct of the parties has to be considered i.e. whether they had sufficient opportunity to adduce evidence at the trial Court or not. It also held that there is a clear danger that in such cases a remand order may in effect be an invitation to perjury; that the provisions of Order 41 Rule 23 C.P.C. are not intended to circumvent the provisions of Order 41 Rule 27 C.P.C.; and that by merely using the formula “in the interest of justice”, an otherwise unjustifiable remand cannot be clothed with an air of legality. 29. I am of the opinion that by remitting the matter to the trial Court, the lower appellate Court has virtually rewarded the plaintiff, who had adequate opportunity to lead evidence in the trial court and who had neglected to lead evidence to prove Ex.A1 and A2 or his possession, by giving him another opportunity to cover up the lacuna in his evidence. It is not as if the plaintiff was not aware of the survey or that he did not have the survey report. The plaintiff has not given any valid reason why he did not produce the survey report. It causes undue hardship to the defendant Nos.1 to 7 due to the prolongation of the litigation and also further expense. Therefore, the said order of the lower appellate Court is unsustainable. 30. For the above reasons, the C.M.A. is allowed, the judgment and decree of the lower appellate Court setting aside the judgment and decree of the trial Court in O.S.No.62 of 2005 and remitting the matter back to the trial Court, is set aside. Therefore, the said order of the lower appellate Court is unsustainable. 30. For the above reasons, the C.M.A. is allowed, the judgment and decree of the lower appellate Court setting aside the judgment and decree of the trial Court in O.S.No.62 of 2005 and remitting the matter back to the trial Court, is set aside. As the lower appellate Court has confirmed the findings of the trial Court that the plaintiff had failed to prove the execution of Exs.A-1 and A-2 or his possession of the plaint schedule property, he is not entitled to the relief of declaration of title and temporary injunction and consequently, the judgment of the trial Court is confirmed. No costs. 31. The miscellaneous applications pending if any in this Civil Miscellaneous Appeal shall stand closed.