Pasala Krishna Murthy vs Adaka Kotaiah Died
2022 Latest Caselaw 7060 AP

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

 CIVIL MISCELLANEOUS APPEAL Nos.196 and 213 of 2022


COMMON JUDGMENT:

CIVIL MISCELLANEOUS APPEAL No.213 of 2022

      Plaintiffs in O.S.No.49 of 1993 filed the above Civil

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

against the judgment and decree dated 31.03.2022 in A.S.No.7

of 2010 on the file of Senior Civil Judge, Addanki, remanding

the matter to the trial Court by setting aside the judgment and

decree dated 22.01.2010 in O.S.No.49 of 1993 on the file of

Principal Junior Civil Judge, Addanki


CIVIL MISCELLANEOUS APPEAL No.196 of 2022

2.    Defendants in O.S.No.92 of 1998 filed the above Civil

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

against the judgment and decree dated 31.03.2022 in A.S.No.8

of 2010 on the file of Senior Civil Judge, Addanki, remanding

the matter to the trial Court by setting aside the judgment and

decree dated 22.01.2010 in O.S.No.92 of 1998 on the file of

Principal Junior Civil Judge, Addanki.


3.    Since the nature of dispute involved in both the appeals

is one and the same, this Court deems it appropriate to
                                 2

dispose of the same by a common judgment. Both the suits

were seeking relief of injunction and hence they were tried

together, and common judgment was pronounced by the Trial

Court.    In appeal, on the same day by two separate

judgments Appellate Court allowed both the appeals by

setting aside the judgements and remanded the suits to Trial

Court.


4.   For brevity, plaintiffs in O.S.No.49 of 1993 are referred to

in the appeal as 'appellants' and plaintiff in O.S.No.92 of

1998 is referred to as 'respondent'.

5. Suit O.S.No.49 of 1993 is filed by plaintiffs (Appellants

herein) for permanent injunction restraining the defendants

from interfering with their peaceful possession and enjoyment

of the plaint schedule property of an extent of Ac.5.48 cents

of land in S.No.85/1 and an extent of Ac.5.36 cents of land in

S.No.85/2 of S.L.Gudipadu village.

6. Plaintiffs, pleaded in the plaint that plaint schedule

property originally belonged to Gade Nageswara Rao; that

after demise of Nageswara Rao, his wife Rajeswari and his

son Veera Bala Subrahmanyam sold item No.1 of schedule

property to the 1st plaintiff and item No.2 of schedule

property to 2nd plaintiff for a valuable consideration under

two registered sale deeds dated 11.03.1991 and also delivered

possession of property; that from the date of purchase,

plaintiffs are in joint possession and enjoyment of item Nos.1

and 2 of plaint schedule property; that plaintiffs also paid

land revenue till the end of fasli 1401; that defendants have

no right or possession and tried to grab the property by

altering or manipulating the revenue records and also tried to

dispossess the plaintiffs and hence, filed the suit for

injunction.

7. 1st Defendant filed written statement and the same was

adopted by 2nd defendant. It was contended interalia that the

sale deeds relied upon by the plaintiffs are not true and

genuine and even if they are true also, no title or interest

passed to the plaintiffs since their vendors are not the owners

of the plaint schedule property; that the plaintiffs are not in

joint possession of the schedule property; that defendants 1

and 2 are permanent residents of S.L.Gudipadu village and

the said village is erstwhile estate, which was taken over by

the Government; that the schedule property has been in

occupation of the defendants' family since decades and it is

their ancestral property; that ancestors obtained rights of

permanent occupancy; that the mother of 1st defendant

Adaka Punnamma gifted an extent of Ac.7.00 cents of land in

favour of her two daughters Ravulapalli Peda Kotamma and

Kurra China Kotamma under a registered settlement deed

dated 09.07.1960; that later Peda Kotamma and China

Kotamma entered into an agreement of sale with 2nd

defendant under a stamped agreement of sale dated

05.03.1985; that the land purchased by 2nd defendant was

demarcated as S.No.85/1; that defendants filed Caveat

O.P.Nos.16 of 1991 and 17 of 1991 on the file of Subordinate

Court, Addanki and filed Caveat O.P.Nos.18 of 1991 and 19

of 1991 on the file of Principal Junior Civil Judge, Addanki on

25.03.1991; that when defendants sent Sampathi Souri and

Ravulapalli Yallamanda to plough the land, the plaintiffs

armed with deadly weapons, beat them and caused bleeding

injuries; that the plaintiffs also made false complaint against

2nd defendant and some others in C.C.No.133 of 1992; that

the said case was dismissed as false; that during the course

of evidence, plaintiffs admitted that said property has been in

occupation of family of defendants; that during cultivation

year 1992-1993, defendants apprehended breach of peace

and approached the Executive Magistrate, Ballikurava; that

learned Executive Magistrate granted interim order; that

plaintiff preferred C.R.P.No.91 of 1992 impleading 1st

defendant alone; that the Additional District and Sessions

Judge suspended the orders passed by the Executive

Magistrate; that the plaintiffs never entered into the land and

eventually prayed the Court to dismiss the suit.

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

the following issues:

(1) Whether the plaintiffs are entitled for grant of permanent injunction as prayed for?

(2) To what relief?

9. Pending suit, 1st defendant died, and 2nd defendant was

recorded as legal representative of 1st defendant vide memo

dated 09.03.1994.

10. Pending suit O.S.No.49 of 1993, 2nd defendant in

O.S.No.49 of 1993 filed suit O.S.No.92 of 1998 seeking

permanent injunction against the defendants (plaintiffs in

O.S.No.49 of 1993).

11. While reiterating the contentions in the written

statement in O.S.No.49 of 1993, it was further contended the

plaint that in O.S.No.49 of 1993, I.A.No.584 of 1993 was filed

seeking temporary injunction and the same was dismissed on

21.09.1994; that C.M.A.No.1 of 1994 was dismissed on

30.11.1994; that C.R.P.No.1386 of 1995 was dismissed on

25.07.1996; that they filed I.A.No.1589 of 1996 seeking

permission to withdraw the suit in O.S.No.49 of 1993 and to

file suit for declaration and possession; that defendants

(plaintiffs in O.S.No.49 of 1993) destroyed the crops and

hence, suit was filed for permanent injunction.

12. 1st Defendant filed written statement and the same was

adopted by 2nd defendant. In the written statement, the plaint

averments in O.S.No.49 of 1993 were reiterated. It was

further contended that registered settlement deed dated

09.07.1960 pleaded by plaintiff is not related to the suit

schedule property; that the agreement of sale dated

05.03.1985 set up by the plaintiff is fake document and ante

date; that the vendors have no right over the schedule

property; that there is no record to show that plaintiff's father

has got right and title to item No.2 of plaint schedule

property, except ryot pass book, which is manipulated one

and eventually, prayed the Court to dismiss the suit.

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

the following issues:

(1) Whether the plaintiff is in possession of the said property on the date of suit?

(2) Whether registered settlement deed dated 09.07.1960 relate to the suit property?

(3) Whether the agreement of sale dated 05.03.1985 is true, valid and binding on the defendants? (4) Whether the suit without seeking declaration of title is not maintainable?

(5) Whether the plaintiff is entitled to the relief of injunction as prayed for?

(6) To what relief?

14. As per the order dated 01.02.2001 in I.A.No.717 of

2000 in O.S.No.92 of 1998, suits O.S.Nos.49 of 1993 and 92

of 1998 were clubbed and evidence was recorded in

O.S.No.49 of 1993.

15. On behalf of plaintiffs, 1st plaintiff examined himself as

P.W.1 and got examined P.Ws.2 to 4. Exs.A-1 to A-33 were

marked. On behalf of defendants, 2nd defendant examined

himself as D.W.1 and got examined D.Ws.2 to 7. Exs.B-1 to

B-37 were marked. Exs.X-1 to X-6 were also marked.

16. Trial Court by common judgment dated 22.01.2010

decreed the suit O.S.No.49 of 1993 and dismissed the suit

O.S.No.92 of 1998. Against the judgment and decree in

O.S.No.49 of 1993, 2nd defendant filed A.S.No.7 of 2010.

Against the judgment and decree in O.S.No.92 of 1998,

plaintiff therein filed A.S.No.8 of 2010.

17. Lower appellate Court being final factfinding Court, in

A.S.No.7 of 2010, framed the following points for

consideration:

(1) Whether the judgment and decree passed by the learned Principal Junior Civil Judge, Addanki in O.S.No.49 of 1993 dated 22.01.2010 is in accordance with law and if not, whether it requires any interference by this Court?

(2) To what relief?

18. In A.S.No.8 of 2010, framed the following points for

consideration:

(1) Whether the judgment and decree passed by the learned Principal Junior Civil Judge, Addanki in O.S.No.92 of 1998 dated 22.01.2010 is in accordance with law and if not, whether it requires any interference by this Court? (2) To what relief?

19. Lower appellate Court relied upon the judgment in

T.V.Ramakrishna Reddy Vs. M. Mallappa and Ors.1 and

came to the conclusion that since there is cloud over the title,

the respective parties should have filed suit for declaration

and not for injunction and thus, set aside the common

judgment of the trial Court and remanded the suits to the

trial Court for fresh disposal. Lower appellate Court also

observed that the parties are at liberty to amend the plaint

seeking the relief of declaration and the respective defendants

are permitted to file additional written statements.

20. Thus, by separate judgments and decrees dated

31.03.2022, learned Appellate Court allowed the appeals

A.S.Nos.7 and 8 of 2010 and set aside the common judgment

AIR 2021 SC 4293

in O.S.No.49 of 1993 and O.S.No.92 of 1998 and remanded

the suits to the trial Court for fresh disposal.

21. Aggrieved by the said judgments and decrees, the

present Civil Miscellaneous Appeals are filed.

22. Heard Sri I.Koti Reddy, learned counsel for appellants

and Sri P.Prabhakar, learned counsel representing Sri

Ghanta Sridhar, learned counsel for respondents.

23. Learned counsel for the appellants would contend that

the Appellate Court ought not to have set aside the judgment

and remanded the suits to the trial Court for fresh

consideration. He would submit that the Appellate Court

ought to have decided the appeal on merits. He would also

submit that there is no genuine dispute regarding title and

the appellants are claiming title by virtue of Exs.A-1 and A-2

sale deeds, whereas respondent is tracing his title through

Exs.B-2 and B-3. He would submit that Exs.A-1 and A-2 are

registered sale deeds, whereas Ex.B-2 is registered settlement

deed and Ex.B-3 is stamped agreement of sale. He would also

submit that since there is no serious dispute with regard to

title and the entire evidence is available on record, though it

is a suit for injunction, since the matter is simple, the lower

appellate Court may decide the issue regarding the title

incidentally. He would further contend that the suit filed by

appellants is of the year 1993 and the suit by the respondent

is of the 1998. Remanding the appeal to trial court would

cause serious prejudice to appellants nearly after two

decades.

24. Learned counsel for respondent supported the

judgments of the lower appellate Court.

25. Basing on the above contentions, the following

substantial questions of law arise for consideration:

(1) Whether the judgment of the Appellate Court in remanding the matters to the trial Court is sustainable?

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

(3) To what relief?

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

in Narayanan Vs Kumaran and others2. The Hon'ble Apex

(2004) 4 SCC 26

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 another3.

27. Keeping the scope of the appeal, this Court consider

whether the remand made by Lower Appellate Court to Trial

Court is sustainable in the facts and circumstances of this

case.

28. 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.

(2012) 5 SC 540

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

others4 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 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.

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

Pratad Steels Ltd.5, 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.

AIR 1999 SC 1125

AIR 2002 SC 771

31. In Municipal Corporation, Hyderabad Vs Sunder

Singh6, 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.

32. In Rajinder Sharma vs. Arpana Sharma7, 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.

33. In Uttaradi Mutt Vs. Raghavendra Swamy Mutt8, 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

(2008) 8 SCC 485

AIR 2011 SC 3161

AIR 2018 SC 4796

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."

34. In Shivakumar and Ors. vs. Sharanabasappa and

Ors.9 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, 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

AIR 2020 SC 3102

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".

35. 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.

36. As narrated supra, suit O.S.No.49 of 1993 was filed by

the plaintiff seeking perpetual injunction. Pending the suit,

2nd defendant in the suit, filed O.S.No.92 of 1998 seeking

perpetual injunction. The property involved in both the suits

is one and the same. Plaintiffs are claiming title to the

property under Exs.A-1 and A-2, whereas defendant is

claiming title to the property by virtue of Exs.B-2 and B-3.

Trial Court recorded finding regarding Exs.A-1 and A-2 and

also possession of plaintiffs over the schedule property on the

day when the suit was filed. Trial Court also recorded finding

regarding Exs.B-2 and B-3. When defendants denied the

existence of Gade Rajeswari and Gade Veera

Balasubrahmanyam, by examining P.W.4, Gade Rajeswari,

plaintiffs proved the existence of Gade Rajeswari and Gade

Veera Balasubrahmanyam. Exs.A-16 and A-17 are served

copies of caveat filed by defendants against plaintiffs 1 and 2.

Defendants pleaded in the caveats that plaintiffs obtained

nominal sale deeds dated 11.03.1991. Thus, the defendants

admitted about the execution of sale deeds by Rajeswari and

others. Trial Court recorded findings that Exs.A-1 and A-2

are not nominal sale deeds. Trial Court also considered

Exs.A-8 to A-10, certified copies of fair adangals and sub-

division of Survey No.85. Exs.A-28 to A-30 are adangals

pertaining to fasli 1388, 1390 and 1391. To disprove the

recitals in Exs.A-28 to A-30, defendants examined the Junior

Assistant in the office of M.R.O as D.W.7. Trial Court, in fact,

considered Exs.A-28 to A-30 and also Exs.X-1 to X-6 and

came to the conclusion that the plaintiffs established that the

schedule properties originally belong to Gade Veera Papaiah

and Gade Nageswara Rao.

37. Defendants claimed title under Exs.B-2 and B-3. While

considering Ex.B-2, trial Court came to conclusion that

except claiming rights under Kudivaram and Meluvaram and

it is self acquired property, the donor under Ex.B-2 did not

specifically state the source of her title. Trial Court also

concluded that survey number itself varies. When an

argument was raised by learned counsel for defendant

regarding Ex.B-2, being 30 years old document, trial Court

also considered the same in the light of Section 90 of the

Indian Evidence Act.

38. An elaborate discussion was made by the trial Court in

respect of documents filed before it and recorded finding

regarding possession of the plaintiffs over the schedule

property and, also failure of defendant to prove possession

over the schedule property. In Paragraph-45 of the judgment,

trial Court came to the conclusion the plaintiffs in O.S.No.49

of 1993 have succeeded to establish the title as claimed and

set up by them and also their possession over the plaint

schedule property as on the date of filing of the suit. The

defendants in O.S.No.49 of 1993, who are plaintiffs in

O.S.No.92 of 1998 utterly failed to establish the title set up

by them as well as their possession over the plaint schedule

property as on the date of filing of the suit in O.S.No.92 of

1998. Trial Court also came to conclusion that plaintiffs in

O.S.No.49 of 1993 need not seek for declaration and their

suit is maintainable even without seeking the relief of

declaration. It also recorded finding that suit O.S.No.92 of

1998 filed for mere injunction is not maintainable without

seeking declaration since title was clearly denied by that date.

39. In the appeal, lower Appellate Court, in the considered

opinion of this wrongly applied the ratio in the judgment of

the Apex Court in T.V.Ramakrishna Reddy's case (referred

supra), and came to the conclusion that there is genuine

dispute regarding title of the property and hence, remanded

the matter to the trial Court.

40. Suit was filed in the year 1993 and remanding the

matter nearly after 29 years of institution of the suit will

cause great hardship to the plaintiffs. The findings of the trial

Court are based on record. The lower appellate Court could

have decided the appeal on merits since the entire material is

available on record and no fresh evidence is required to

dispose of the appeals. No specific issue was framed by the

lower appellate Court, except making observations while

remanding the matter. An order of remand should not be

passed routinely. The power under Order XLI Rule 23 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.

41. In view of foregoing discussion, the Civil Miscellaneous

Appeals are allowed. The judgments and decrees dated

31.03.2022 in A.S.Nos.7 and 8 of 2010 on the file of Senior

Civil Judge, Addanki, respectively, are set aside. Appeals

A.S.Nos.7 and 8 of 2010 are restored to its file. Since the

appeals are of the year 2010, the lower appellate Court shall

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

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

common judgment. No order as to costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J 15th September, 2022

PVD