M.Shameem vs Ambarapu Teepu Saheb
2022 Latest Caselaw 5671 AP

          HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

          CIVIL MISCELLANEOUS APPEAL No.288 of 2021

JUDGMENT:

Defendant in suit O.S.No.652 of 2011 filed the present civil

miscellaneous appeal under Order XLIII Rule 1 (U) r/w Section 105

of CPC.

2. Parties to this judgment are referred as per their array in the

plaint.

3. This Civil Miscellaneous Appeal is filed against the judgment

and decree dated 15.07.2021 in A.S.No.44 of 2017 on the file of X

Additional District Judge, Tirupati in allowing the appeal and

remanding the matter to the trial Court.

4. On 08.12.2021 this Court ordered notices to respondents 2

and 3 and also permitted the learned counsel for appellant to take

out personal notice. In compliance, learned counsel for appellant

filed proof of service, vide USR No.308 of 2022 dated 04.01.2022

along with memo with an endorsement "refused". In view of the

postal endorsement notice was duly served on respondents 2 and

3. In spite of service of notice, none appeared on behalf of

respondents 2 and 3.

5. The case of the plaintiff, in brief, is that originally, the plaint

schedule property belonged to forefather of Asambee, W/o Junnu

Sahib; that said Asambee was in exclusive possession and

enjoyment of the schedule property; that there was thatched house

and vacant site in the schedule property; that Asambee mortgaged

the schedule property to one Dese Reddigari Sayamma under a

registered mortgage deed dated 11.04.1962; that she died in the

year 1964; that Asambee's only daughter A.Rajabee succeeded to

the property and got discharged the mortgage on 04.01.1965; that

Rajabee died in the year 1989 and her husband Munwaar Saheb

predeceased her; that the plaintiff is the only surviving son,

succeeded to the property of Rajabee; that the house was in

dilapidated condition and hence, it was demolished and the

schedule property is vacant since 2005; that defendant is nothing

to do with the schedule property and as he is working in the office

of M.R.O, Pakala, is trying to alienate the schedule property; that

the plaintiff got issued a legal notice dated 03.09.2011; that the

defendant got issued reply notice dated 09.09.2011 with false

averments and since the defendant disputed the title, suit is filed

for declaration and for consequential injunction.

6. Defendant filed written statement and contended interalia

that she is the daughter-in-law of Mehurunnisa; that said

Mehurunnisa died on 24.05.1998 leaving behind the defendant

and her two sons as her legal heirs; that originally the plaint

schedule property was the joint family property Mohammad

Khasim and Mohammad Akbar; that Mohammad Khasim and

M.Mehurunnisa, W/o Mohammad Akbar divided the family

properties under a registered partition deed dated 07.03.1990; that

defendant's mother-in-law Mehurunnisa was allotted B schedule

property; that during the life time of Mehurunnisa, she also

applied for construction of residential house in the site allotted to

her; that the plaintiff has no right, title or possession over the

plaint schedule property and eventually prayed the Court to

dismiss the suit.

7. Basing on the above pleadings, the trial Court framed the

following issues:

(1) Whether the plaintiff is entitled for declaration as absolute owner of the plaint schedule property? (2) Whether the plaintiff has been in possession and enjoyment of the plaint schedule property as on the date of filing of the suit?

(3) Whether the plaintiff has made any attempt to alienate the plaint schedule property? (4) Whether the plaintiff is entitled for grant of permanent injunction in respect of plaint schedule property or not?

(5) To what relief?

8. On behalf of plaintiff, plaintiff examined himself as P.W.1

and got examined P.Ws.2 to 4. Exs.A-1 to A-7 was marked.

Exs.C-1 to C-3 was marked through P.W.4. On behalf of

defendant, defendant examined herself as D.W.1 and got

examined D.Ws.2 to 4. Exs.B-1 to B-7 was marked.

9. Trial Court by judgment and decree dated 17.01.2017

decreed the suit declaring the right of the plaintiff over the

plaint schedule property and also granted permanent

injunction. Aggrieved by the same, defendant filed appeal

A.S.No.44 of 2017 on the file of X Additional District Judge,

Tirupathi. The lower Appellate Court being the final fact finding

Court, framed the following point for consideration:

Whether the judgment and decree passed by the trial Court are factually and legally sustainable or not?

10. Pending the appeal, respondent/plaintiff died and he legal

representatives were brought on record as per orders in

I.A.No.172 of 2019 dated 10.03.2020. In the appeal as there was

no representation on behalf of respondents 2 and 3, they were

set exparte.

11. Lower appellate Court by judgment and decree dated

15.07.2021 allowed the appeal setting aside the judgment and

decree dated 17.01.2017 in O.S.No.652 of 2011 and remanded

the matter to the trial Court. The operative portion of the

judgment of the lower appellate Court reads thus:

"The matter is remanded to the trial Court with a direction to look into the aspects discussed above by this Court and to pass a judgment afresh after hearing both sides on those aspects. If it is so advised, the trial Court is at liberty to permit the parties to the suit to produce further evidence for effective adjudication of the case. Each party to this appeal do bear their own costs".

12. Aggrieved by the said judgment and decree, the above

second appeal is filed.

13. Heard Sri A.Kishore Kumar, learned counsel for the

appellant.

14. Learned counsel for appellant would submit that the lower

appellate Court ought not to have remanded the matter to the

trial Court. He would also submit that the lower appellate Court

ought to have invoked Order 41 Rule 24 of CPC, instead of

remanding the matter. He would also submit that the lower

appellate Court remanded the matter even without framing

necessary points and thus prayed to set aside the judgment

under appeal.

15. Basing on the above contentions, the following points arise

for consideration:

(1) Whether the judgment of the lower appellate Court in remanding the matter to the trial Court is sustainable?

(2) Whether the lower appellate Court while remanding the matter followed the procedure under Order 41 Rule 23, 23A, 24 and 25 of CPC?

(3) To what relief?

16. Whenever the remand is warranted, the appellate Court

has to record reasons as to why parties should be relegated

before the trial Court to re-decide the suit.

17. It is apt to extract Order 41 Rules 23, 23A, 24 and 25 of

CPC as follows:

"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, which 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.

(Emphasis is mine)

Andhra Pradesh High Court Amendment

(a) After the words "the decree is reversed in appeal", insert the words "or where the Appellate Court in 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".

23A. Remand in other cases:

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

(emphasis is mine)

24. Where evidence on record sufficient Appellate Court may determine case finally:

Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from

Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].

18. Order XLI Rule 23 of CPC deals with a situation where the

trail Court decrees the suit upon a preliminary point and the

same was reversed by appellate court the appellate court if

considers necessary in the interest of justice remand the matter

to the trial Court. Rule 23A deals with the situation, otherwise

than in Rule 23. Rule 25 deals with the situation where the

trial Court omitted to frame or try any issue, or to determine

any question of fact, which according to the Appellate Court is

essential to the right decision of the suit upon the merits, the

Appellate Court may, if necessary, frame issues, and refer the

same for trial to the Court from whose decree the appeal is

preferred. Rule 24 deals with the situation, where the evidence

is sufficient, the Appellate Court may, after resettling the issues,

if necessary, finally determine the suit, notwithstanding that the

judgment of the Court below proceeded wholly upon some

ground other than that on which the Appellate Court proceeds.

19. In Ashwinkumar K. Patel Vs. Upendra J. Patel and

Ors.1, the Hon'ble Apex Court while considering the scope of

Order XLI Rule 23 of CPC held as follows:

"7. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of

AIR 1999 SC 1125

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."

20. In Rajinder Sharma vs. Arpana Sharma2, the Hon'ble

Apex Court held thus:

"10. It appears that most of the documents which are sought to be adduced by way of adducing evidence are on record. In that view of the matter, the order to remit the matter to the trial Court is not warranted. The High Court, being the first appellate Court, is a Court of both fact and law. Therefore, it will be in the interest of justice for the High Court to decide the controversy in accordance with law.

21. In Uttaradi Mutt Vs. Raghavendra Swamy Mutt3, the

Hon'ble Apex Court held thus:

"17. The High Court has not recorded any special reasons as to why the parties should be relegated before the "trial Court" to re-decide the suit. The only reason, which, presumably, weighed with the High Court, is that it was necessary to find out the truth, as it is the duty of the Court. That could be done even by directing the First Appellate Court to record evidence, which it was competent to do while hearing the first appeal, had it allowed the applications Under Order XLI Rule 27 of Code of Civil Procedure by the Respondent/Defendant."

AIR 2011 SC 3161

AIR 2018 SC 4796

22. The observations of the first appellate Court in remanding

the matter to the trial Court as follows:

(a) The trial Court has not incorporated the rejoined in its

judgment.

(b) In the appendix of evidence, the name of D.W.2 is

mentioned as "A.Teepu Saheb", who is the plaintiff herein

instead of G.Nagi Reddy.

(c) Trial court relied upon the endorsement without marking

the endorsement to prove the same.

(d) Ex.A-1 is endorsement dated 04.01.1965 and in fact,

Ex.A-1 is not endorsement, but it is a registered mortgage

deed dated 11.04.1962.

(e) Mortgage deed is a compulsorily attestable document and

one of the attestors' to the mortgage deed has to be

examined to prove the execution of the same. In order to

prove the execution of Ex.A-1, no attestors was examined

by the plaintiff and the endorsement contained in Ex.A-1

was not marked, but the trial Court proceeded to rely

upon Ex.A-1 and endorsement thereon.

(f) Similarly, endorsement in Ex.A-7 was not marked, but it

was looked into by the trial Court.

(g) Rough sketch was not filed along with report of learned

advocate commissioner.

23. These are the factors, according to the first appellate

Court, the trial Court did not consider and hence, the appellate

Court remanded the matter by setting aside the judgment of the

trial Court.

24. Sole plaintiff originally filed the suit for declaration and for

consequential injunction. Plaintiff relied upon Ex.A-1 mortgage

executed by Asambee in favour of D.Sayamma and Ex.A-7

registered mortgage deed dated 04.01.1965.

25. In Union of India (UOI) and Ors. vs. Vasavi Co-op.

Housing Society Ltd. and Ors.4, the Hon'ble Apex Court held

thus:

15. The legal position, therefore, is clear that the Plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the Defendants have proved their case or not. We are of the view that even if the title set up by the Defendants is found against, in the absence of establishment of Plaintiff's own title, Plaintiff must be non-suited.

26. Thus, in a suit for declaration of title, the burden lies on

the plaintiff to prove title to the property. Entire evidence is on

record. Trail court after considering the evidence decreed the

suit. If the appellate court is of the opinion that trial court did

not consider the evidence on a proper perspective being the final

fact finding court, it is the duty of appellate court to deal with all

the points involved in the appeal and to record independent

reasons. Typing wrong name in the appendix of evidence; non

AIR 2014 SC 937

mentioning of rejoinder ( in fact this court perused rejoinder and

rejoinder was filed regarding change of name and relationship)

etc., are not valid grounds to remand the matter by setting

aside the judgment of the trial Court.

27. The judgment of the appellate Court, do not indicate the

purpose of remand, except mentioning the points extracted

supra. The entire evidence is available on record as also

documents. Sole plaintiff, who was arrayed as 1st respondent

died pending the appeal and the legal representatives, who were

brought on record, remained exparte. The lower appellate Court

instead of remanding the matter, ought to have decided the

appeal basing on the evidence available on record under Order

XLI Rule 24 of CPC. As seen from the judgment, the lower

appellate Court while remanding the matter did not frame any

issue or point to be dealt with by the trial Court. In the absence

of the same, in the opinion of this Court, remand order passed

by the lower appellate Court is unsustainable. The lower

appellate Court being final fact finding Court is duty bound to

decide the appeal, since the entire evidence, both oral and

documentary, related to the case, is on record.

28. In view of the discussion made supra, this Civil

Miscellaneous Appeal is allowed. The judgment and decree dated

15.07.2021 in A.S.No.44 of 2017 on the file of X Additional District

Judge, Tirupati is set aside. Appeal is restored to its file. Since the

appeal is of the year 2017, the lower appellate Court shall dispose

of the appeal as expeditiously as possible, preferably within six

months from the date of receipt of a copy of this judgment. No

order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 29th August, 2022

PVD