Andhra Pradesh High Court - Amravati

S Ameer Basha vs K Nagarathnamma on 5 March, 2021

Bench: M.Venkata Ramana

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.16 of 2019

JUDGMENT :

This Civil Miscellaneous Appeal is directed against the order in

A.S.No.15 of 2014 dated 11.10.2018 of the learned III Additional District

Judge, Kadapa at Rajampet. It was in turn preferred against the decree

and judgment in O.S.No.81 of 2003 dated 07.01.2012 of the Court of the

learned Junior Civil Judge, Rajampet.

2. The defendant is the appellant. The respondent is the plaintiff.

3. The respondent instituted the suit against the appellant for

permanent injunction in respect of a small plot of the land shown as

'ABCD' in the plaint plan, which is a part of an extent of Ac.0-40 cents

comprised in S.No.974/1 and 973-2 of Rajampet Town and Gram

Panchayat. This property is shown in the plaint plan as 'WXYZ'. This plot

shown as 'ABCD' being in dispute shall be referred hereinafter as 'the

disputed property', for convenience.

4. The case of the respondent against the appellant in the trial

Court was that her husband had succeeded to entire 'WXYZ' property in

the partition among himself, his father Sri Eswaraiah and his brother Sri

Kayala Masthan Mohan Rao, which in turn was purchased along with other

extents by Sri Kayala Venkata Subbaiah, father of Sri Eswaraiah, under a

registered sale deed dated 27.11.1935. She further claimed that they

were in possession and enjoyment of this land as on the date of the suit

and a part of the entire property belonging to them in S.No.973/2 and

S.No.974/1 was acquired for bypass road by the Government whereupon

her husband and his brother received compensation therefor. She further MVR,J C,M.A.No.16 of 2019

alleged that the appellant without any manner of right encroached upon

the disputed property, where he was making attempts to raise

constructions, that constrained her to lay the suit. Thus, relief of

permanent injunction to restrain the appellant from interfering with her

possession and enjoyment of 'ABCD' property was sought in this suit.

5. The appellant resisted the claim of the respondent denying her

case and mainly contending that he has been in lawful possession and

enjoyment of 'ABCD' property, which he had acquired under a gift from

his junior paternal uncle, which is evidenced by registered deed dated

08.10.2001 and that the respondent highhandedly demolished the pillars

raised by him in this property on 19.02.2003 and that again on

05.03.2003 under the guise that she has orders of the Court, with the

help of the police and unruly elements, pulled down the walls and

structures in this property.

6. He further contended that the sale deed dated 27.11.1935

under which the respondent claiming that grandfather of her husband had

purchased this property along with others, did not relate to S.No.973/2

and that it related to the property in S.No.974/1 and 975. He further

contended that her uncle Sri Sheik Modin Saheb was the original owner of

this property, which was gifted to him under registered gift deed stated

above, that it is surrounded by the properties belonging to their relations

and that in fact, this property belonged to Government. He further

contended that when the revenue authorities through the Mandal

Surveyor conducted survey of this land at the instance of the police on her

complaint, it revealed that 'ABCD' property is in S.No.973/2 and not in any

of the S.Nos. claimed by the respondents.

MVR,J C,M.A.No.16 of 2019

7. Thus, the appellant claimed that he is the absolute owner in

possession of this disputed property over which the respondent or her

predecessors-in-title did not have any right, title or interest.

8. Basing on the above pleadings, the learned trial Judge settled

the following issues for trial:

"1. Whether the plaintiff is in possession over the suit schedule property on the date of filing of the suit?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. To what relief?"

9. At the trial, the respondent examined herself as P.W.1 and relied

on Ex.A1 to Ex.A5. The appellant examined himself as D.W.1 and relied on

Ex.B1 to Ex.B3 in support of his contention.

10. On the material and the evidence, the learned trial Judge held

that the respondent failed to prove her claim being burden on her in a suit

for permanent injunction and observing that she did not approach the

Court with clean hands, went to the extent of manipulating entries in

Ex.A1 and Ex.A2, Pattadar Passbook and Book of title deed respectively,

inserting S.No.972/2 and accepting the version of the appellant that he

was in possession and enjoyment of this disputed property on the date of

filing the suit, where the respondent went to the extent of demolishing

the structures therein, refused to grant the relief sought by the

respondent. One of the observations of the learned trial Judge was that

the evidence let in by both the parties was not inspiring confidence, since

both of them departed from their respective pleadings, at the trial.

MVR,J C,M.A.No.16 of 2019

11. The respondent carried the matter in appeal where the learned

appellate Judge to a large extent accepting the findings recorded by the

learned trial Judge observing that there are certain lapses on the part of

the respondent in adducing sufficient and satisfactory evidence to make

out her possession, attempted to place the burden on the appellant to

prove his claim relating to the disputed property.

12. The learned appellate Judge also observed that the

documentary evidence placed by the respondent particularly in Ex.A1 and

Ex.A2, S.No.972/2B was added without there being any authentication by

the revenue authorities concerned, which entries were made after

receiving these documents from the Court, ultimately remanded the

matter to the trial Court. The basis for this remand was allowing

I.A.No.171 of 2018 filed by the respondent at that stage in appeal for

amending the plaint schedule with reference to description of the property

in dispute from S.No.973 to S.No.973/2B. Another reason for the appellate

Court to remand the matter is attempt of the respondent to produce

additional evidence in terms of Order-41, Rule-27 CPC filing I.A.No.692 of

2017 producing certified copies of proceedings relating to acquisition of a

part of S.No.973/2B and awarding compensation to the husband of the

respondent and his brother.

13. Thus, observing that an opportunity be given to the parties,

the matter was remanded to the trial Court setting aside the decree and

judgment under appeal for disposal in accordance with law, while further

directing to consider the documents produced at the appellate stage upon

receiving them subject to proof and relevancy and also to permit the

respondent to amend the plaint.

MVR,J C,M.A.No.16 of 2019

14. It is this judgment and decree of the appellate Court, which is

questioned in this Civil Miscellaneous Appeal.

15. Sri K.Venugopal Reddy, learned counsel for the appellant,

contended that the material on record clearly made out the claim of the

appellant and that the respondent, who was to establish her claim in

respect of the disputed property, failed to discharge such burden in

proving that she was in effective possession and enjoyment of the

property by the date of the suit. The learned counsel for the appellant

further contended that the reasons assigned for remand in the judgment

of the appellate Court are not in consonance with Order-41, rule-23A CPC

and therefore, it requires interference now. Thus predominantly

contending questioning the decree and judgment of the appellate Court,

the learned counsel for the appellant requested to set aside the same.

16. The respondent though served did not choose to contest the

matter in this appeal.

17. Now, the points for determination in this appeal are:

1. Whether the direction to remand the matter to the trial Court

for fresh consideration by the learned appellate Judge is in

terms of Order-41, Rule-23-A CPC and if it is justified in the

circumstances and if interference by the learned appellate judge

against the well reasoned judgment of the learned trial court is

warranted?

2. To what relief?

MVR,J C,M.A.No.16 of 2019

POINT:

18. In a suit for permanent injunction, the burden is always on the

plaintiff to prove and establish his or her claim and who cannot rely on

any laches or lapses on the part of the defendant. The learned trial Judge

took into consideration this fundamental principal of law in appreciation of

evidence.

19. Specific contention of the respondent at the trial was that the

disputed property is part of S.No.974-A and 973/2 of Rajampet Gram

Panchayat tracing source of right and title from Sri Kayala Venkata

Subbaiah, grandfather of her husband, under a registered sale deed dated

27.11.1935. This sale deed was not produced and exhibited at the trial for

obvious reasons. The objection of the appellant in this respect is that this

sale deed did not refer to S.No.973/2 and the property covered by

S.No.974-1 and 975 along with other properties was acquired thereunder.

However, his claim based on Ex.B3 registered gift deed dated 08.10.2001

is not reflecting S.No.973/2B and the property described thereunder is

concerned to S.No.974/1. But there is evidence on record to prove that he

was in possession and enjoyment of this property as on the date of the

suit where he had also raised structures. There are serious admissions

from the respondent at the trial, who deposed as P.W.1 that she got the

structures so raised by the appellant demolished.

20. The evidence of the respondent as P.W.1 clearly indicated that

the prime documents on which she rested her claim viz., Ex.A1 and Ex.A2,

the pattadar passbook and Book of title deed, contained entries relating to

S.No.973/2B, which were added later and after institution of the suit. She

admitted that she had taken back these two documents from the Court MVR,J C,M.A.No.16 of 2019

after institution of the suit. According to her apart from two entries that

were already available therein referring to S.No.974/1 and S.No.975, a

further entry in S.No.973/2B of Ac.0-22 cents was added. This addition,

according to her, was made by the revenue authorities. This entry

admittedly did not bear any initial or seal of the concerned Revenue

authority, who added it, and thus lacks authentication. This single

circumstance alone is sufficient to non-suit the respondent. Her version

that it was the Revenue Inspector, who visited their house and intended

to make such entry in Ex.A1 and Ex.A2, is hard to believe.

21. The fact that this property in dispute is located in S.No.973/2B

had come to light only when police got the property surveyed from the

revenue authorities and when Mandal Surveyor carried out survey. This

fact was also admitted by the respondent as P.W.1 while referring to

demolishing the structures in this property raised by the appellant by her

and her men using a bulldozer. She also stated in cross-examination that

she came to know that the appellant had the disputed property as a gift

from Sri Shaik Fakruddin Saheb, his relation, under the gift deed dated

08.10.2001.

22. The suit so filed for entire Ac.0-40 cents covering 'WXYZ' in

Ex.A5 plaint plan specifying 'ABCD' disputed site is also projecting a

mischievous attempt by her without confining to 'ABCD' plot.

23. Considering these factors and the evidence on record, rightly

the learned trial Judge chose to dismiss the suit.

24. In the appeal, though the learned appellate Judge considered

the nature of the case and the evidence let in by the respondent as well MVR,J C,M.A.No.16 of 2019

as the appellant, did not record clear findings disagreeing with the

findings of the learned trial Judge. Unfortunately, the learned appellate

Judge supported the highhanded acts of the respondent in demolishing

the structures in 'ABCD' disputed property on the ground that raising

these structures was a stray act and also on the ground that the appellant

failed to prove his lawful right to this property basing on Ex.B1 to Ex.B3.

Ex.B1 and Ex.B2 were the sanction proceedings issued by Gram

Panchayat authorities of Rajampet to the appellant to construct in this

property basing on his application dated 13.02.2003. Thus, they were

found to be documents obtained subsequent to filing this suit.

25. Nonetheless when the main complaint of the appellant either at

the trial or in the first appeal was that the respondent resorted to such

highhanded acts, instead of considering them in right perspective,

recording the finding as if justifying these acts by the appellate Court is

totally uncalled for. When the respondent resorted to such extra-judicial

means of interference with the help of local police, it is rather unthinkable

that a Court would stand in support, applying a seal of justification. This

finding itself is perverse.

26. The Learned appellate Judge was carried away by two petitions

of the respondent in the appeal in I.A.No.171 of 2018 and I.A.No.679 of

2017 in allowing them for amendment of the plaint correcting the

description of the land with reference to S.No., and also to receive the

documents obtained from revenue authorities to prove that the family of

the respondent received compensation upon acquisition of about Ac.0-51

cents in S.No.973/2B of Rajampet. Reasons alleged therefor, are MVR,J C,M.A.No.16 of 2019

unjustified and recording that an opportunity should be given to the

respondent, basing on such material is another perverse finding.

27. The learned appellate Judge lost grasp of the fact that such an

attempt of the respondent had lead to filling up the gaps, which were

otherwise found fatal, in the course of trial and failure of the respondent

in making out her case was the main theme of the judgment of the trial

Court. Supplying and feeding material as if to support one party against

another, is apparent tenor of the judgment of the learned appellate

Judge.

28. These factors, as rightly contended by the learned counsel for

the appellant, did not meet the requirements of Order-41, Rule-23-A CPC.

It is the prescription in terms thereof that the appellate Court should

record a finding that a re-trial is necessary, upon reversing the decree and

judgment of the trial Court on merits. However, it is not the case in the

present matter, except the reason recorded by the learned appellate

Judge as if to extend accommodation to the respondent to support her

case, which she could have well set out during trial. Therefore, remand of

the matter to the trial Court, in the circumstances, is uncalled for and is

totally unjustified. My view in this respect is supported by judgment of this

Court when it was at Hyderabad in A.Ramaiah and another vs.

A.Pedda Sayanna Sailoo (died) and others1 where, in para-6, with

reference to application of Order-41, Rule-23-A CPC, it is observed as

under:

"6. Rule 23 and Rule 23-A of Order 41 CPC deal with the remand of case by the appellate Court. Rule 23 applies to a situation where the suit was

. 1989(1) ALT 506 MVR,J C,M.A.No.16 of 2019

disposed of upon a preliminary point and the decree is reversed in appeal while Rule 23-A deals with the case where the suit was disposed of by the trial court otherwise than on a preliminary point and the decree is reversed on appeal. Rule 23-A reads as follows;--

"23-A Remand in other cases:-- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on preliminary point and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same power as it has under Rule 23."

From a plain reading of Rule 23-A it is evident when the suit is decreed otherwise than on a preliminary issue and retrial is considered necessary, it is only then that the case has to be remanded. In other words, it is only after the judgment under appeal has been reversed on merits when the question of relief falls for consideration, if the appellate court comes to the conclusion that retrial is necessary, than it can remand the case. The approach to reverse the decree merely to order remand is contrary to letter and spirit of Rule 23-A C.P.C....."

29. In the same context, in Vidya Sagar Cole and others vs.

J.Balaji Singh and Others2 referring to Narayanan vs. Kumaran and

others3, in respect of consideration under Order-43 Rule 1(u) CPC and

that appeal of this nature should be heard only on the grounds

enumerated in Section 100 CPC, requiring the High Court to confine itself

to such facts, conclusions and decisions which have a bearing on the

order of the remand, further considering the observations of Hon'ble

Supreme Court in Ashwinkumar K.Patel v. Upender J. Patel4,

P.Purushottam Reddy and another v. M/s. Pratap Steels Ltd.5,

Municipal Corporation, Hyderbad vs. Sunder Singh6, Saraswathi

Devi v. J.Satyanarayana Raju7 and K.Sriramulu v.

K.V.Radhakrishna Murthy8, it is stated that remanding the matter to

the trial Court, cannot be in the nature of virtually rewarding the

. 2014(1)ALT 178

. (2004) 4 SCC 26

. AIR 1999 SC 1125

. AIR 2002 SC 771

. (2008)8 SCC 485

. 1985(2) ALT 478

. 1985(2) ALT 534 MVR,J C,M.A.No.16 of 2019

respondent(plaintiff) who had adequate opportunity to lead evidence at

the trial and who had neglected to do so, is not justified.

30. The learned counsel for the appellant also placed reliance in

Jagarlamudi Rosaiah vs. Daggubati Venkanna9 and Gottimukkala

Ramachandrayya and others vs. Kesari Chandramouli and

others10 in the same context as to scope of remand order and

parameters under which the same has to be ordered.

31. The deleterious effect of order of remand in the matter of this

nature, particularly having regard to the nature of the reasons, if they are

to be so called assigned by the learned appellate Judge, needs emphasis.

It is rather desirable to extract what is stated in Saraswathi Devi vs.

Jagannadha Raju (7 supra) in this context.

".... 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 party of the defaulting party who will have the advantage of the remand....."

32. Therefore, accepting the contentions of the learned counsel for

the appellant that there is absolutely no justification to remand the matter

to the trial Court, in the given facts and circumstances, that the judgment

of the appellate Court being perverse and that there is complete improper

application of the mandate under Order-41, Rule-23A CPC, the judgment

under appeal has to be interfered with, setting aside the same. The

judgment of the trial Court is proper and shall stand. The learned

.2008(1) ALT 88

.1961 ALT 195 MVR,J C,M.A.No.16 of 2019

appellate Judge attached premium to the illegal conduct of the respondent

in this matter, who went to the extent of manipulating entries in Ex.A1

and Ex.A2, after institution of the suit and who had gone to the extent of