Nandigam Suresh vs Nandigam Charumathi Devi Died
2022 Latest Caselaw 8300 AP

      HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL No.203 of 2022

ORDER:

Plaintiff in the suit filed the above Civil Miscellaneous

Appeal under Order XLIII Rule 1 (u) of CPC, against the

judgment and decree dated 06.05.2022 in A.S.No.26 of 2013 on

the file of I Additional District Judge, Eluru, whereby Appellate

Court set aside the judgment and decree dated 29.11.2012 in

O.S.No.330 of 2007 on the file of Principal Junior Civil Judge,

Eluru and remanded the matter to the trial Court.

2. Parties to this judgment are referred to as per their status

in the suit.

3. Plaintiff filed suit O.S.No.330 of 2007 seeking declaration

of title in respect of item Nos.1 and 2 of plaint schedule property

with vested remainder rights and consequently for recovery of

possession of item Nos.1 and 2 of plaint schedule property.

4. The averments, in brief, in the plaint are that plaintiff is

brother's son of Sri Rayulu, who is husband of 1st defendant;

that Rayulu and 1st defendant had no male issues and they

brought up plaintiff from the age of 5 years and provided

education and performed his marriage; that out of love and

affection, Rayulu executed a registered Will dated 01.05.2004

bequeathing item Nos.1 and 2 of plaint schedule property and

also residential house, wherein the plaintiff is residing along

with 1st defendant; that Rayulu died on 26.12.2006; that though

1st defendant has no right, however, she executed a registered

sale deed dated 12.01.2007 in respect of item Nos.1 and 2 of

schedule property in favour of 2nd defendant; that registered

sale deed dated 12.01.2007 is neither valid nor binding; that it

was recited in the sale deed that possession was delivered; that

1st defendant is proclaiming that another document will be

executed in respect of item No.2 of schedule property and

hence, filed the suit for the reliefs stated supra.

5. 1st Defendant filed written statement and contended

interalia that her husband had no right to execute Will for whole

of the property; that they were blessed with two daughters

Swarajya Lakshmi and Dhonepudi Ramadevi; that Swarajya

Lakshmi died leaving behind her son Parvathaneni Bhaskara

Lakshmi Swaroop, aged 5 years and the said Swaroop and

Ramadevi are coparceners, since the property is ancestral; that

Will executed by Rayulu does not bind 1st defendant; that 1st

defendant, daughter and grandson have all right over the plaint

schedule property and thus, prayed to dismiss the suit.

6. 2nd Defendant filed written statement and contended

interalia that 1st defendant is Class-I legal heir of sri Rayulu

along with daughters; that sale deed dated 12.01.2007 was

executed by 1st defendant and the same is binding on the

plaintiff; that 2nd defendant is in possession and enjoyment of

property covered under sale deed dated 12.01.2007; that the

revenue authorities issued pattadar pass book to 2nd defendant

and she has been paying taxes and thus, 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 the relief of declaration that he is the absolute owner of item No.1 and 2 of plaint schedule property with vested remainder of rights?

(2) Whether the plaintiff is entitled for consequential possession of item No.1 and 2 of plaint schedule property as per the Will dated 01.05.2004? (3) To what relief?

8. On behalf of the plaintiff, he himself as P.W.1 and got

examined P.Ws.2 to 4. Exs.A-1 to A-7 were marked. On

behalf of defendants, though 1st defendant filed affidavit in

lieu of chief examination as D.W.1, her evidence was

eschewed. D.Ws.2 and 3 were examined and no documents

were marked.

9. Trial Court recorded the finding that Ex.A-1 registered

Will dated 01.05.2004 is genuine executed by deceased

Rayulu creating life interest in favour of 1st defendant and

vested remainder to the plaintiff in respect of item Nos.1 and

2 and other residential building.

10. Regarding the contention raised by defendants that the

schedule property is ancestral property and Rayulu had no

absolute rights to execute Will, trial Court recorded finding

that item No.1 of schedule property fell to the share of Rayulu

in a registered partition and hence, Item No.1 of schedule

property is not ancestral property. Regarding item No.2, trial

Court came to the conclusion that Rayulu purchased the

same under a registered sale deed from Matta Philip. Thus,

the trial Court recorded finding that item No.1 lost its

character of ancestral property and item No.2 is self-acquired

property. Trial Court also considered the evidence of D.Ws.2

and 3 and the suit was decreed by judgment dated

29.11.2012 holding that plaintiff is the absolute owner of

item Nos.1 and 2 with vested remainder and he is entitled to

recover possession after death of 1st defendant.

11. Aggrieved by the said judgment and decree, defendants

1 and 2 filed appeal A.S.No.26 of 2013 on the file of I

Additional District Judge, West Godavari at Eluru. Pending

the appeal, 1st appellant died and her grandson and daughter

were added as appellants 3 and 4 as per order dated

02.05.2019 in I.A.No.205 of 2019.

12. Lower appellate Court being final factfinding Court

framed the following points for consideration:

(1) Whether the plaintiff alone is entitled for the relief of declaration of title and possession of item Nos.1 and 2 of plaint schedule property in pursuance of Ex.A-1 registered Will said to have been executed by Nandigam Rayulu?

(2) Whether the appellants 3 and 4 area also entitled to their right and share over the item Nos. 1 and 2 of the schedule property of Nandigam Rayulu?

(3) Whether the judgment of the trial Court needs any interference?

13. Lower Appellate Court by judgment and decree dated

06.05.2022 set aside the judgment and decree dated

29.11.2012 in O.S.No.330 of 2007 and remanded the matter

to the trial Court by invoking Order 41 Rule 23(A) of CPC.

Lower appellate Court directed the parties to adduce further

to substantiate their case. Assailing the said judgment and

decree, the present Civil Miscellaneous Appeal is filed.

14. Heard Sri Sai Gangadhar Chamarthi, learned counsel

for the appellant and Sri Sreenivasa Rao Velivela, learned

counsel for the respondents.

15. Learned counsel for the appellant would submit that

Appellate Court failed to follow the procedure contemplated

under Order 41 Rules 23 to 25 of CPC while remanding the

matter to the trial Court. He also would submit that no points

were framed by the lower appellate Court while remanding

the matter to the trial Court. He would further submit that

respondents 2 and 3 were added as legal representatives of

deceased 1st respondent and the legal representatives are not

allowed to raise new or additional pleas and thus, prayed the

Court to allow this appeal.

16. Learned counsel for the respondents, on the other

hand, supported the judgment of the lower appellate Court.

17. In view of the pleadings and contentions, the following

substantial questions of law arise for consideration:

(1) Whether the remand made by the Lower Appellate Court is in consonance with Order 41 Rule 23 to 25?

(2) Whether the lower appellate Court framed necessary points, while remanding the matter to the trial Court?

18. Undisputed facts are that plaintiff is brother's son of

deceased Sri Rayulu. Sole defendant is wife of Rayulu. The

said Rayulu died on 28.12.2006. Rayulu had two daughters

P.Swarajya Lakshmi and Donepudi Ramadevi, 2nd respondent

herein. Late Rayulu, as per the findings, executed Will dated

01.05.2004 reserving life interest in favour of wife and vested

remainder to the plaintiff. Rayulu's elder daughter

predeceased him by leaving her son. 2nd daughter and grand-

son were brought on record after death of sole respondent,

(sole defendant) in the appeal as respondents 2 and 3.

19. Scope of Appeal under Order 43 Rule 1(u) was dealt with

in Narayanan Vs. Kumaran and others1. The Hon'ble Apex

Court held that an appeal under Order 43 Rule 1(u) should

be heard only on the grounds enumerated in Section 100 of

CPC. Appellant in the appeal is not entitled to agitate

questions of fact. High Court shall confine itself to such and

conclusions which a bearing on the order of remand. It need

not deal with all the findings of fact arrived at by the Lower

Appellate Court. The above view was reiterated in

Jagannathan Vs Raju Sigamani and another2.

20. In Ashwin Kumar K.Patel Vs. Upendra J.Patel and

others3 the Apex Court held thus:

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

(2004) 4 SCC 26

(2012) 5 SC 540

AIR 1999 SC 1125

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.

21. In P. Purushottam Reddy and another Vs. M/s

Pratad Steels Ltd.4, the Hon'ble Apex Court held that an

appellate Court should be circumspect in ordering remand

when the case is not covered by Rule 23 or 23-A or 25 of

Code of Civil Procedure. An unwarranted order of remand

gives the litigation an underserved lease of life and must

therefore be avoided.

22. In Municipal Corporation, Hyderabad Vs Sunder

Singh5, the Hon'ble Apex Court observed thus:

15. where from the Court whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reserved 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 judgement and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under the 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.

AIR 2002 SC 771

(2008) 8 SCC 485

23. In Rajinder Sharma vs. Arpana Sharma6, 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.

24. In Uttaradi Mutt Vs. Raghavendra Swamy Mutt7, 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."

25. In Shivakumar and Ors. vs. Sharanabasappa and

Ors.8 the Apex Court held thus:

"WHETHER REMAND WAS CALLED FOR

25. Taking up the other point for determination, the submission of learned Counsel for the Appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A Code of Civil Procedure, in our view,

AIR 2011 SC 3161

AIR 2018 SC 4796

AIR 2020 SC 3102

remains totally bereft of substance; this submission has only been noted to be rejected.

25.1. The procedure relating to appeals from original decrees (usually referred to as 'regular first appeal') is provided in Order XLI of the Code of Civil Procedure, 1908 and therein, various provisions relating to hearing of an appeal, remand of case, remitting of issues for trial, production of additional evidence in Appellate Court etc. are contained in Rules 16 to 29 under the sub-heading 'Procedure on hearing'. For their relevance, we may take note of the provisions contained in Rules 23, 23A, 24 and 25 of Order XLI Code of Civil Procedure 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, with directions to readmit 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 to all just exceptions, be evidence during the trial after remand.

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.

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.

25.2. Rule 23A came to be inserted in Order XLI Code of Civil Procedure by way of the Code of Civil Procedure (Amendment) Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although Under Rule 23, an order of remand could be made only on reversal of a decree disposing of suit on a preliminary point but, the Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in the interest of justice. Some of the High Courts had made similar provisions by way of their respective amendments. Insertion of Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit that even when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary.

25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient;

notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the Trial Court had proceeded.

25.4. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI Code of Civil Procedure and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case. (emphasis is mine)

25.4.1. The decision cited by the learned Counsel for the Appellants in the case of Mohan Kumar (supra) is an apt illustration as to when the Appellate Court ought to exercise the power of remand. In the said case, the Appellant and his mother had filed the civil suit against the Government and local body seeking declaration of title, perpetual injunction and for recovery of possession in respect of the land in question. The Trial Court partly decreed the suit while holding that the Plaintiffs were the owners of the land in dispute on which trespass was committed by the Respondents and they were entitled to get the encroachment removed; and it was also held that the Government should acquire the land and pay the market value of the land to the Appellant. Such part of the decree of the Trial Court was not challenged by the Defendants but as against the part of the decision of the Trial Court which resulted in rejection of the claim of the Appellant for allotment of an alternative land, the

Appellant preferred an appeal before the High Court. The High Court not only dismissed the appeal so filed by the Appellant but proceeded to dismiss the entire suit with the finding that the Plaintiff-Appellant had failed to prove his ownership over the suit land inasmuch as he did not examine the vendor of his sale deed. In the given circumstances, this Court observed that when the High Court held that the Appellant was not able to prove his title to the suit land due to non-examination of his vendor, the proper course for the High Court was to remand the case to the Trial Court by affording an opportunity to the Appellant to prove his title by adducing proper evidence in addition to what had already been adduced. Obviously, this Court found that for the conclusion reached by the High Court, a case for re-trial was made out particularly when the Trial Court had otherwise held that the Appellant was owner of the land in dispute and was entitled to get the encroachment removed as also to get the market value of the land. Such cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stand at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fill-up the lacuna in its case.

25.5. It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court.

The amendment which is applicable to 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 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".

26. Keeping in view the scope of the miscellaneous appeal,

in the light of authoritative expressions referred to supra, this

Court must consider whether the remand made by Lower

Appellate Court to Trial Court is sustainable in the facts and

circumstances of this case.

27. Whenever remand is warranted, the Appellate Court

must record reasons as to why parties should be relegated

before the trial Court to re-decide the suit. Remanding the

appeals to the Trial Court after setting aside the judgments

and relegating the parties to trial court again would cause

serious injustice to the litigants.

28. 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.

29. In case on hand, suit was filed for declaration and

possession. Plaintiff claimed title and possession to the

schedule property by virtue of registered Will dated

01.05.2004 marked as Ex.A.1. 1st Defendant pleaded that

schedule property is ancestral property and there are other

coparceners i.e. son of pre-deceased daughter and another

daughter and they are having share in the schedule property

and the plaintiff is not in possession of plaint schedule

property. Plaintiff examined himself as P.W.1 and also

examined P.W.2 one of the attestors of Ex.A-1. Having upheld

the genuineness of registered Will, trial Court decreed the

suit. Trial court also recorded findings regarding nature of

properties as to whether ancestral or self-acquired.

30. Pending the appeal, 1st appellant died, grandson and

daughter, filed application under Order I Rule 10 and Section

151 of CPC and the same was allowed. Thus, they came on

record as appellants 3 and 4.

31. During the course of arguments, it was contended on

behalf of the respondents that since the property was

inherited by Rayulu from his ancestors, it became his

ancestral property and hence, his daughter and daughters

son (grand son) are having share in the schedule property.

One of the daughters died, her son has to be treated as

coparcener and hence, the plaintiff alone cannot get full

rights over the schedule property by virtue of Ex.A-1 Will. It

was further contended by learned counsel for respondents

that to establish the rights of appellants 3 and 4, the matter

required to be remanded to the trial Court.

32. As indicated supra, suit was filed declaration and

possession. Plaintiff asserted title to the property by virtue of

Ex.A-1 Will. Defendant also pleaded in the written statement

that there are other coparceners and hence, rights will not

flow to the plaintiff under Ex.A-1 Will. Trial Court in fact

recorded the finding that ancestral properties of Rayulu were

partitioned under registered partition deed dated 06.08.1973

and hence Item No.1 cannot be termed as ancestral property.

It recorded another finding regarding Item No.2 that it was

purchased by Rayulu from one Matta Philp. Trial Court

having come to the conclusion that plaintiff could establish

the genuineness of Ex.A-1 Will, came to conclusion that

plaintiff is entitled to vested reminder and entitled to take

possession of schedule property after death of defendant.

33. Thus, necessary pleadings and evidence is on record.

Legal representatives came on record, after the death of

party, shall not be allowed to raise new pleads except to

proceed with the matter basing on the pleas available on

record. As discussed supra, D1 in her written statement

pleaded about coparcenary and rights of daughter and grand-

son. Appellate Court, in the considered opinion of this Court

ought not to have remanded the matter, without framing

points required for adjudication. Remand is not a matter of

course as observed by the Apex Court. Once the evidence is

already on record, Appellate Court being the final factfinding

court shall consider the same and record findings. An order

of remand should not be passed routinely. The power under

Order XLI Rule 23 to 25 of CPC 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 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. In this case on hand as observed supra, pleadings

of respective parties are on record as also evidence. Hence,

appellate court ought not to have remanded suit to the trial

court by setting aside the judgement. Appellate court should

have decided the appeal basing on the pleadings and

evidence on record. In view of the above discussion, the

judgment under the appeal is liable to be set aside.

34. Accordingly, the Civil Miscellaneous Appeal is allowed.

The judgment and decree dated 06.05.2022 in A.S.No.26 of

2013 on the file of I Additional District Judge, Eluru is set

aside. Appeal A.S.No.26 of 2013 is restored to its file. Since

the appeal is of the year 2013, the Appellate Court shall

dispose of the same in accordance with law, within a period

of three months from the date of receipt of a copy of this

judgment. Appeal shall be disposed of on merits uninfluenced

by any of the findings of this Court. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 3rd November, 2022

PVD