Andhra Pradesh High Court - Amravati

B Narsimhappa Died By His Lrs 2 Others vs K Narayanappa, Ananthapur Dist on 12 January, 2024

     * HIGH COURT OF ANDHRA PRADESH: AMARAVATI

          HON'BLE SRI JUSTICE NYAPATHY VIJAY
                       CRP.No.1923 of 2017



% 12.01.2024
# B.Narsimhappa died by his L.Rs and others


                                                  ... Petitioners
        Vs.
$ K.Narayanappa, S/o Kotnuru Narasimhappa,
Age about 59 Yrs.,
Beldar Mastry, Sreekantapuram,
Hindupur,
Anathapur District.
                                                  ... Respondent


! Counsel for the petitioner: Sri K.Narsi Reddy

! Counsel for the Respondent : Sri N.Aswartha Narayana

< Gist:


> Head Note:
? Cases referred:
1
    AIR 2020 SC 3102
                                    2




            HON'BLE SRI JUSTICE NYAPATHY VIJAY


                   C.R.P.No.1923 of 2017
O R D E R:

1. The present Civil Revision Petition is filed questioning

the order dated 26.07.2016 in C.M.A.No.6 of 2015 passed

by the Additional District Judge, Hindupur.

2. The petitioners are the defendants and respondent

herein is the sole plaintiff. Originally, O.S.No.123 of 2000

was filed for declaration of title and possession with regard

to suit schedule property. The case of the plaintiff was

that Kotnuru Lingappa, Kotnuru Nadipi Rangappa and

Kotnuru Chinna Rangappa were brothers. Kotnuru

Lingappa had a son by name Narasimhappa and the

plaintiff and his brother Lingappa are sons of

Narasimhappa. Nadipi Rangappa had one son by name

Guddamappa, who died leaving behind his wife

Aswarthamma and his sons Gopalappa and Rangappa.

China Rangappa had two wives Obulamma and a teacher

Adilakshmamma. The petition schedule property was a

self-acquired property of the teacher Adilakshmamma, who

died intestate on 24.07.1985. On her death, the property

devolved on the heirs of her husband.

3. The Defendant No.1 filed O.S.No.431 of 1985 before

District Munsifs Court, Hindupur for permanent injunction

against plaintiff and others and was granted temporary

injunction in I.A.No.1271 of 1985 on 09.08.1985. The

said suit was filed on the basis of a Will executed by late

Adilakshmamma on 10.06.1985. The said suit was

transferred to Sub-Ordinate Judges Court, Penukonda and

was renumbered as O.S.No.18 of 1987 and was tried along

with O.S.No.125 of 1980 and a common judgment was

passed therein dismissing both suits. Defendant No.1 filed

appeal A.S.No.23 of 1988 before Additional District Judges

Court, Hindupur and the same was dismissed on

30.11.1988. No further appeal was filed thereon and the

suit attained finality.

4. While so, Obulamma i.e wife of Chinna Rangappa

executed a registered Will on 18.06.1998 bequeathing all

her properties to Gopalappa and others. A settlement was

arrived between the plaintiff and Aswarthamma,

whereunder Aswarthamma and her sons along with

Lingappa relinquished their rights in plaint schedule

property by executing registered relinquishment deed dated

01.06.1999. In view of the relinquishment deed, the

plaintiff became the absolute owner of the property.

Hence, the suit was filed for declaration of right and title

and recovery of possession.

5. In the written statement, the defendant denied the

claims on Will dated 18.06.1998 and that after the death of

Adilakshmamma, the petitioner became the absolute owner

and notwithstanding the dismissal of O.S.No.431 of 1985,

the defendant pleaded that they are entitled to the suit

property by adverse possession. The trial Court framed the

following three issues:

1. Whether the suit was barred by limitation?

2.Whether the plaintiff is entitled for declaration and possession?

3. If so, to what relief?

6. The trial Court examined plaintiff himself as P.W.1

and B.Ranganathappa as P.W.2. On behalf of defendants

D.Ws.1 and 2 were examined. Exs.A.1 to A.13 documents

were marked. The suit was decreed on 10.12.2004 and an

appeal A.S.No.9 of 2005 was filed by the

defendants/petitioners herein.

7. In the appellate Court, the petitioners filed a petition

I.A.No.198 of 2007 under Order 41 Rule 25 C.P.C., for

framing additional issues, which reads as under:

‗Whether the defendants have perfected their right and title over the suit schedule property by way of adverse possession.'

8. The petitioners also filed I.A.No.16 of 2008 and

I.A.No.58 of 2008 under Order 41 Rule 27 C.P.C. to receive

certified copy of decree in O.S.No.33 of 1999 and house tax

demand notice apart from letter dated 08.07.2004 as

additional evidence. The lower appellate Court

considering the petitions under Order 41 Rule 27 C.P.C.,

framed an issue in the trial Court and instead of remitting

for finding on that issue, the lower appellate Court allowed

the appeal and remanded the suit to lower Court with a

direction to re-admit the suit in its original number and

proceed to determine the suit afresh with regard to adverse

possession after considering the documents which are

allowed by the Court in I.A.Nos.16 and 58 of 2008.

9. The order of remand was questioned before this

Court by way of S.A.No.258 of 2008 and this Court,

considering that the appeal is against a remand order,

converted the Second Appeal into a Civil Miscellaneous

Appeal and the concerned District Judge was directed to

adjudicate the same. Pursuant to the orders of this Court,

the Additional District Judge, Hindupur numbered the

CMA as CMA No.6 of 2015 and after hearing the case on

merits, allowed the same and set aside the judgment of

Senior Civil Judge, Hindupur in O.S.No.9 of 2005. Hence,

the civil revision petition.

10. The scope for consideration in the present revision is

only to re-examine the correctness of the Judgment and

decree in A.S.No.9 of 2005.

11. The power and the circumstances under which

appeal can be remanded to the trial Court is provided

under Order 41 Rule 23, 23A and 25 of C.P.C. The High

Court of Madras had amended this provision vide

R.O.C.No.5105 of 1930 and this High Court follows the

same. The Order 41 Rule 23 C.P.C., as applicable to the

State of Andhra Pradesh reads as under :

             ―Rule    23:    Remand      of     case    by
             Appellate Court -- Where the Court
             from    whose    decree    an     appeal    is

preferred has disposed of the suit on a preliminary point and the decree is reversed in appeal, or where the Appellate Court, while reversing or setting aside the decree under appeal, considers it necessary in the interests of justice to remand the case, it may 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 direction tore-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 to all just exceptions. he evidence during the trial after remand.‖

12. The Sub-Rule 23A to Order 41 C.P.C. introduced

pursuant to the Act 104 of 1976 does not make any

material difference to this State as that power was

incorporated under Order 41 Rule 23 C.P.C. as extracted

above.

13. The Order 41 Rule 24 C.P.C. is a check on the power

of remand of Appellate Court. The same reads as under:

―Rule 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.‖

14. The above Sub-Rule provides that when evidence is

on record, the appellate Court shall re-settle the issues and

determine the suit. The evidence on record is inclusive of

additional evidence received under Order 41 Rule 27 C.P.C.

Now, if the appellate Court is of opinion that findings on an

issue crucial/essential for a just decision is necessary, the

appellate Court may frame issues and refer to trail Court

for trail and findings thereon within a certain time frame

under Order 41 Rule 25 C.P.C.

15. The Order 41 Rule 24 and 25 C.P.C. circumscribe the

power of remand provided Under Order 41 Rule 23 C.P.C.

and the exercise of power of remand provided to appellate

Court should be in exception to Order 41 Rule 24 and 25

C.P.C. In other words, the remand by appellate Court

should be for exceptional reasons and only after the

appellate Court records reasons vis-à-vis Order 41 Rule 24

and 25 C.P.C. for its inability to render Judgment on

merits. In the absence of such exceptional reasons, the

order of remand by the appellate Court should be

considered as an abuse of power under Order 41 Rule 23

C.P.C. and abdication of solemn duty to adjudicate on

rights of the parties to the lis.

16. The order of absolute remand hits the hope of the

aspirational litigant for a quick determination of rights and

every facet of procedure which has similar impact should

be exercised by Courts with great care and caution keeping

the aspirational litigants in mind.

17. The Hon'ble Supreme court while considering the scope

of remand in Shivakumar and Ors V. Sharanabasappa

and others1 opined at para 26.4 as under:

"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."

18. Coming to the facts of the case, no reasons have been

assigned by the lower appellate Court for remanding the

suit to the trial Court in entirety, moreso, when the entire

evidence was on record and having allowed I.A.Nos.16 and

58 of 2008 under Order 41 Rule 27 C.P.C. If the lower

AIR 2020 SC 3102

appellate Court was of the opinion that a fact finding on a

particular issue was called for, then the lower appellate

Court should have exercised power under Order 41 Rule

25 C.P.C. However, in this case, the entire evidence is on

record and issue with regard to the adverse possession

could have been framed by the lower appellate Court in