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2023 DIGILAW 711 (AP)

Pakalapati Vijaya Ramaraju v. Pakalapati Vijaya

2023-04-21

VENKATA JYOTHIRMAI PRATAPA

body2023
JUDGMENT 1. These Civil Miscellaneous Appeals are preferred under Order 43 Rule 1 of Code of Civil Procedure 1908, [in short 'CPC'] against the impugned common judgment dtd. 15/3/2013, in A.S.No.65, 66 of 2008 on the file of I Additional District Court, Vizianagaram, wherein by allowing the appeals the suit in O.S.68 of 2004 was remanded to the trial Court i.e., Senior Civil Judge's Court, Vizianagaram. 2. Appellants were the plaintiffs and respondents herein were the defendants before the trial Court. 3. For the sake of convenience parties will be referred as they arrayed before the trial Court. 4. The suit O.S.No.68 of 2004 was filed for declaration of title of the plaintiffs over the plaint schedule properties and for recovery of possession along with mesne profits. Originally this suit was filed by the plaintiff No.1. As he died during the pendency of the suit, his legal representatives were brought on record. The suit was partly decreed declaring the 1st plaintiff as the owner of Item no.1 of plaint 'A' schedule property and 'B' schedule house, received as adoptive son in partition and defendants were directed to deliver the said properties to plaintiffs 2 to 5 and also pay past profits for three years and future profits till the date of delivery of such properties, to be ascertained on separate application. 5. Impugning the judgment in O.S.68 of 2004, the plaintiffs carried the matter in A.S.No.65 of 2008. On the very same judgment, the defendants preferred the A.S.No.66 of 2008 raising several grounds challenging the sustainability of the judgment. 6. Being aggrieved by the common judgment remanding the suit to the trial Court after framing two issues by the First appellate Court, the plaintiffs preferred the above appeals. 7. Heard Sri M.R.K.Chakravarthy, learned counsel for the appellant and Sri Saranu Phani Teja, learned counsel representing Sri Gudapati Venkateswara Rao, learned counsel for the respondent. 8. The point that would emerge for determination is:Whether the impugned judgment of first Appellate Court remanding the matter to the trial Court is sustainable or not? 9. Before proceeding further, it is relevant to extract the finding in the impugned judgment; "In the result, the appeal is allowed and the decree and judgment of the trial Court in O.S. No.68 of 2004 dtd. 9. Before proceeding further, it is relevant to extract the finding in the impugned judgment; "In the result, the appeal is allowed and the decree and judgment of the trial Court in O.S. No.68 of 2004 dtd. 13/5/2008 on the file of Senior Civil Judge, Vizianagaram is hereby set aside and the matter is remanded back to the trial court for fresh disposal in accordance with law by permitting both parties to let in evidence in respect of the following issues (1) Whether the suit claim is barred by resjudicata? (2) Whether the plaintiffs have no title to the plaint schedule property ? Both parties shall appear before the Trial Court on 22/4/2013 and the Trial Court shall dispose of the matter within six months from the date of receipt of the record. However, there shall be no order as to costs". 10. A perusal of impugned judgment dtd. 15/3/2013, would indicate that the proposed issue no.1 is whether the suit claim is barred by res judicata. While so, the judgment of the trial court would indicate that the same was answered by the learned trial Judge at Issue No.3 on appreciation of evidence on record. 11. The Second proposed issue framed by the first Appellate court is, whether the plaintiffs have no title to the plaint schedule properties. It appears that, this issue places burden on the defendants to prove that the plaintiffs have no title to the property. This is quite contrary to the fundamental principles enunciated under Sec. 34 of the Specific Relief Act by catena of decisions. In Siva Kumar and others Vs. Sarana Basappa and others., 2021 (11) SCC 277 wherein the Hon'ble Apex Court categorically held that: " B urden lies on the plaintiff to prove that he is entitled for declaration of the title over the property irrespective of the defense taken by the defendants." Such being the case, the framing of second issue itself is not in correct lines. It is in a way demanding the plaintiff to prove the thing in a negative shape which is not sustainable in law. 12. On the point of remand, it is essential at this juncture to refer the decision of the Hon'ble Supreme Court rendered in Arvind Kumar Jaiswal (D) thr. LR. It is in a way demanding the plaintiff to prove the thing in a negative shape which is not sustainable in law. 12. On the point of remand, it is essential at this juncture to refer the decision of the Hon'ble Supreme Court rendered in Arvind Kumar Jaiswal (D) thr. LR. v. Devendra Prasad Jaiswal Varun., 2023 Live Law SC 112 , wherein certain circumstances under which an order of remand can be passed were laid down as follows; "An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court." (Emphasis Supplied) 12. In the light of the aforementioned premises and on submission of both the learned counsel, it is appropriate to set aside the judgment dtd. 15/3/2013, of first Appellate Court and remand the matter back to the first Appellate Court with a direction to dispose of both the appeals i.e., A.S.No.65 of 2008 and A.S. No.66 of 2008 on merits, and if necessary, relating to the additional documents filed by the plaintiff, the first Appellate Court can record the evidence or remit the matter to the trial Court for the said limited purpose. 13. With the above observations, these Civil Miscellaneous Appeals are disposed of. In the circumstances of the case, both parties shall bear their own costs. 13. With the above observations, these Civil Miscellaneous Appeals are disposed of. In the circumstances of the case, both parties shall bear their own costs. As a sequel, interlocutory applications pending, if any, in this case, shall stand closed.