Andhra Pradesh High Court - Amravati

In Terms Of Order Xliii Rule 1(U) ... vs Vi Additional District Judge on 16 June, 2023

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

      CIVIL MISCELLANEOUS APPEAL No.1177 of 2018


JUDGMENT:

In terms of Order XLIII Rule 1(u) C.P.C. plaintiffs in the

suit preferred this civil miscellaneous appeal challenging the

correctness of judgment and decree dated 22.03.2018 of learned

VI Additional District Judge, Markapur, Prakasam District in

A.S.No.1 of 2015. Respondent in this appeal is the defendant in

the suit.

2. Despite valid service of notice, none has entered

appearance for respondent.

3. For appellants, learned counsel submitted arguments.

4. O.S.No.199 of 2009 before learned Principal Junior Civil

Judge, Markapur is a suit for permanent injunction restraining

the defendant and his men from interfering with the peaceful

possession and enjoyment of plaint schedule property, namely,

Ac.2.42 cents situate in Patha Annasamudram Gram

Panchayat, Tripuranthakam Mandal of Prakasam District. The

appellants herein two in number filed the said suit as against

the defendant. Plaintiffs claim to be in possession of the said

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property and alleged that defendant had no semblance of rights

or claims over the said property, but he indulged in interfering

with their peaceful possession and therefore, they were forced to

file the suit. As against that, the defendant pleaded in his

written statement that he is in possession of the property and

not the plaintiffs and the claim made by the plaintiffs is based

on forged documents and sought for dismissal of the suit.

5. Pleadings on both sides indicate that the parties claimed

their rights from different sources. A brief mention of them is

needed here. Plaintiffs state that originally the property

belonged to Smt. S.Saraswathamma and her son Sri S.Prasad.

Under an agreement for sale dated 07.06.1992 they alienated

this property and delivered possession of the same to

Sri Y.Pedda Galaiah. Since then the purchaser under the

agreement for sale held possession of the property. He obtained

a ryotwari patta. Subsequently, a partition took place among

family members. In that partition western portion to an extent

of Ac.1.30 cents fell to the share of 1st plaintiff and eastern

portion to an extent of Ac.1.10 cents fell to the share of 2nd

plaintiff. Both plaintiffs are grandsons of the above referred

Sri Y.Pedda Galaiah. These plaintiffs claim to have possession

Dr. VRKS, J C.M.A.No.1177 of 2018

of their respective shares. Entries in revenue records were

mutated in their favour. Pattadar and title deed passbooks were

given to them and they have been in continuous possession of

this property.

6. The case set out by the defendant is that the plaint

schedule property originally belonged to Sri S.Ramanjaneya

Prasad. On 06.02.2008 under a registered sale deed he sold out

the property to Sri V.Parameswara Rao and possession was

obtained by the purchaser. Subsequently, Sri V.Parameswara

Rao under a registered sale deed dated 21.02.2009 sold out the

plaint schedule property to the defendant for a valuable

consideration of Rs.1,21,000/-. Defendant obtained possession

of the property under that registered sale deed. He is the

rightful owner and possessor of this property. The agreement

for sale dated 07.06.1992 referred in the plaint is a forged

document. The ryotwari patta claimed in the plaint does not

contain the proceedings number of Special Inams Deputy

Tahsildar, Markapur and signatures of the officers concerned

are not available on it. The documents asserted in the plaint

were fabricated.

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7. On those rival pleadings, learned trial Court framed the

following issues:

1. Whether the plaintiff is in possession and enjoyment of suit property as on the date of filing of the suit?

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

3. To what relief?

8. During trial, for plaintiffs, PWs.1 to 3 testified and

Exs.A.1 to A.11 were marked. For defendant, DWs.1 to 3

testified and Exs.B.1 to B.9 were marked.

9. After hearing arguments on both sides and after

considering the material on record, learned trial Court agreed

with the case of the plaintiffs and decreed the suit in favour of

the plaintiffs and granted permanent injunction against the

defendant. During the course of its judgment, learned trial

Court recorded a clear finding that plaintiffs successfully

established their right over the suit schedule property whereas

defendant failed to prove the same (at para No.12). Learned

trial Court observed that one of the vendors under the

agreement for sale is Sri S.Prasad and he testified as PW.3 on

behalf of the plaintiff. Defendant did not examine his vendors.

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It observed that plaintiffs and defendant failed to prove the title

of their respective original owners so as to convey title to them.

It further observed that revenue records filed by the plaintiffs

pertain to a period anterior to institution of the suit. The

revenue records filed by the defendant in Exs.B.3 to B.9 came

into existence only during the pendency of the suit. It was on

those findings it concluded all the issues in favour of the

plaintiffs and decreed the suit in favour of them.

10. Aggrieved of that judgment, defendant preferred A.S.No.1

of 2015 before learned VI Additional District Judge, Markapur.

After hearing learned counsel on both sides and after perusing

the material on record, learned first appellate Court passed the

impugned judgment. It set aside the judgment and decree of

the trial Court. It remanded the suit to the trial Court. A

perusal of this judgment indicates the following factors

prompted the learned first appellate Court in remanding the

suit to the trial Court:

1. Trial Court judgment did not offer any reasons to disbelieve the evidence of DWs.1 to 3 and discard Exs.B.1 to B.9.

Dr. VRKS, J C.M.A.No.1177 of 2018

2. Trial Court judgment failed to offer reasons for believing the evidence of PWs.1 to 3 and Exs.A.1 to A.11.

3. Ryotwari patta standing in the name of Sri Y.Pedda Galaiah is Ex.A.1 in the trial Court and as per the appendix of evidence, this ryotwari patta was issued on 06.07.1989. But in the plaint it was referred as 07.09.1992. The discrepancy in the dates remained unexplained. The genuineness of Ex.A.1 was a matter of importance and no specific finding was given by the trial Court on that.

4. The Revenue Authorities issued passbooks and title deed passbooks in favour of both sides. Learned trial Court did not consider them in the light of the provisions contained in Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 and the Rules framed thereunder.

5. Trial Court judgment contains relevant material till first 11 paragraphs and when it comes to later part from paragraph No.12 onwards it referred to certain facts and evidence which are totally unconnected with the suit and they were also unconnected with the evidence adduced by both sides.

With those observations, it set aside the trial Court's

judgment and remanded the suit to the trial Court.

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11. Plaintiffs in the suit did not relish the order of remand. In

this civil miscellaneous appeal the plaintiffs contend that the

first appellate Court was holding the appeal which was in

continuation of the suit and it was empowered to decide the

appeal with the material on record. It failed to do so. If the first

appellate Court thought of framing additional issues, it could

have framed them and could have decided the appeal. The

order of remand is against the principles contained in the

statute and the precedent. They seek to set aside the judgment

of the first appellate Court and remand the matter to the first

appellate Court for consideration and disposal of the appeal in

accordance with law.

12. Arguing on the relevant principles with reference to

powers of appellate Court and the principles governing

remanding of suits to trial Courts by first appellate Courts,

learned counsel for appellants cited the following judgments:

1. Municipal Corporation, Hyderabad v. Sunder Singh 1.

2. P.Purushottam Reddy v. Pratap Steels Ltd.2

(2008) 8 SCC 485

(2002) 2 SCC 686

Dr. VRKS, J C.M.A.No.1177 of 2018

3. Ashwinkumar K. Patel v. Upendra J. Patel3.

4. Sundarajan @ Pichaikaran v. Aanji4

13. The point that falls for consideration is:

"Did the first appellate Court remanded the suit in

violation of the principles of law causing injustice to the

appellants?"

14. Point:

The judgment of the learned trial Court in the suit for

permanent injunction contains a definite finding holding that it

believed that the plaint schedule property has been in

possession of the plaintiffs and defendant failed to establish

their possession over the property. The judgment of the learned

first appellate Court is clear that it did not discuss the evidence

and did not set aside the said finding. While exercising powers

under Order XLI Rule 23 or Order XLI Rule 23A C.P.C., it is

incumbent on the first appellate Court to record its

disagreement with the findings of the trial Court and then it

shall set aside the findings. Judgment of the learned first

(1999) 3 SCC 161

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appellate Court does not indicate any specific reason or

direction for retrial by the trial Court. It has not recorded its

satisfaction that retrial was necessary to render justice between

the parties. In the absence of compliance with these principles,

the order of the appellate Court in remanding the suit cannot be

maintained is the law laid down by the Hon'ble Supreme Court

of India in Municipal Corporation's case (supra 1). In that

view of the matter, the impugned judgment of the learned first

appellate Court is in violation of law.

15. This Court has already recorded the observations of the

learned first appellate Court prompting it to pass the order of

remand. The law is that if from the pleadings of the parties the

material issue arises, but such material issue was not framed in

the trial Court then the appellate Court is not helpless and the

appellate Court could very well frame the issues and adopt the

course provided to it under Order XLI Rule 25 C.P.C. For

benefit, Order XLI Rule 25 C.P.C. is extracted here:

"Order XLI Rule 25 CPC: Where Appellate Court may frame issues and refer them for trial to Court whose decree

2010 (6) CTC 612

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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."

16. All the observations made in the judgment of the first

appellate Court find answer if the first appellate Court bestowed

its attention to the above referred provision and the subsequent

provisions enabling the first appellate Court to have effective

adjudication of the dispute between parties. Since the learned

first appellate Court failed to act in accordance with law, the

impugned judgment cannot be maintained and therefore, it is

set aside. Point is answered in favour of the appellants.

17. In the result, this Civil Miscellaneous Appeal is allowed

setting aside the judgment and decree dated 22.03.2018 in

A.S.No.1 of 2015 of learned VI Additional District Judge,

Dr. VRKS, J C.M.A.No.1177 of 2018