Andhra Pradesh High Court - Amravati

Shaik Khader Mohiddin And Others vs State Of Bihar And on 6 September, 2024

APHC010038512021
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI             [3311]
                           (Special Original Jurisdiction)

                   FRIDAY, THE SIXTH DAY OF SEPTEMBER
                    TWO THOUSAND AND TWENTY FOUR

                                PRESENT

         THE HONOURABLE MS JUSTICE B S BHANUMATHI

            CIVIL MISCELLANEOUS APPEAL NO: 147/2024

Between:

Shaik Khader Mohiddin and Others                  ...APPELLANT(S)

                                  AND

Syed Mohammad Seleem and Others                 ...RESPONDENT(S)

Counsel for the Appellant(S):

   Sri. S V MUNI REDDY

Counsel for the Respondent(S):

   Sri. G KONDALA RAO

The Court made the following:
                                      2
                                                                        BSB, J
                                                         C.M.A.No.147 of 2024


           THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                         C.M.A No.147 of 2024
JUDGMENT:

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

by the appellants/defendants 1 & 2 is directed against the decree &

judgment, dated 22.12.2018, allowing appeal in A.S.No.50 of 2008 on

the file of the Court of V Additional District Judge, Rayachoty, filed

challenging the decree & judgment, dated 10.12.2017, dismissing the

suit in O.S.No.14 of 2002 on the file of the Court of Principal Junior Civil

Judge, Rayachoty.

2. Heard Sri S. V. Muni Reddy, learned counsel for the appellants/

defendants 1 & 2 and Sri G.Kondala Rao, learned counsel for the 1 st

respondent/plaintiff.

3. The facts, briefly stated, are as follows:

a. Originally, the land in Sy.No.561/1 of Rayachoty village in an

extent of Ac.6.31 cents belongs to Shaik Mohammad Khasim. After his

demise, his wife, Basuran Bee and his eldest son, Mohammad Khasim,

sold an extent of Ac.0.42 cents in Sy.No.56/1 and other properties,

under registered sale deed, dated 05.05.1970, to Biram Sab, who, in

turn, sold the same to K. Nagabhushan Rao and G.Sreenivasulu under

BSB, J

registered sale deed, dated 11.07.1981, who prepared a layout and sold

the plots to different purchasers. The plaintiff purchased the schedule

property from Shameem Banu under a registered sale deed, dated

14.10.1997 and since then, he has been in exclusive possession and

enjoyment of the same. He obtained permission from the

Grampanchayat to construct a house and proposed to lay foundation.

While so, the defendants attempted to dispossess the plaintiff from the

suit schedule property and constructed a temporary house in a portion

of the schedule property by encroaching five feet into the suit schedule

property. Hence, the plaintiff filed suit in O.S.No.14 of 2022 for

declaration of title of the plaintiff over an extent of 240 square yards out

of Ac.6.31 cents, situated at Rayachoty village, sub-district Rayachoty,

mandatory injunction and recovery of possession of the suit schedule

property.

b. The 1st defendant filed written statement which was adopted by

defendants 2 & 3. In the written statement, while denying the material

averments, it is stated that the land in Sy.No.561/1 measuring Ac.6.31

cents originally belonged to Shaik Mohammad Khasim, father of

defendant No.1. The defendant No.1 instituted a suit in O.S.No.27 of

1998 for grant of perpetual injunction in respect of Ac.2.74 cents in

Sy.No.561/1 and the said suit was decreed on 31.08.2001. The appeal

BSB, J

and the second appeal filed against the judgment dated 31.08.2001

were dismissed. After demise of father of defendant No.1, there was

partition of the properties on 26.06.1984 between defendant No.1 and

his brother and sisters and mother and in that partition, the defendant

No.1 got an extent of Ac.2.74 cents with specific boundaries in

Sy.No.561/1. The vendors of the document, dated 05.05.1970, have no

right to sell the property. The suit is liable to be dismissed.

c. After hearing both parties, the trial Court dismissed the suit.

d. The aggrieved plaintiff preferred appeal in A.S.No.50 of 2008 on

the file of the Court of Additional District Judge, Rayachoty. The

appellate Court allowed the appeal. The operative portion of the

judgment in A.S.No.50 of 2008 reads as follows:

"The appeal filed by the appellant/plaintiff in challenging the dismissal decree of declaration, mandatory injunction and consequential recovery of possession is allowed by setting aside the findings of the learned Principal Junior Civil Judge, Rayachoty in O.S.No.14/2002, dt.10.12.2017; and further the matter is remitted back to the trial Court under Order 41 Rule 27 CPC with a specific direction to the trial Court to appoint an advocate commissioner for localization of suit schedule property with the aid of Mandal Surveyor with reference to the title deeds of both the parties, i.e., plaintiff as well as defendants and also other link documents if any........"

BSB, J

4. Hence, the defendants 1 & 2 are before this Court.

5. The main grievance of the appellants is that the appellate Court

had erroneously remanded the appeal under Order 41 Rule 27 CPC

which does not permit remand of the appeal and further that there is no

need to appoint a commissioner for localization of the schedule property

and the evidence on record is sufficient to adjudicate the dispute and

instead of remanding the matter, it ought to have dismissed the appeal

and confirmed the decree and judgment of the trial Court.

6. On the other hand, the learned counsel for the 1st respondent

contended that the appellate Court has rightly set aside the decree &

judgment of the trial Court and remanded the matter as report of a

commissioner would help in resolving the dispute with precession in the

light of the reasons assigned in the judgment. He further submitted that

mere error in quoting the provision of law is not a ground to set aside

the decree & judgment of the appellate Court, since the authority to

remand is conferred on the appellate Court under Order 41 Rule 23

CPC, and therefore, there is no need to interfere with the impugned

decree and judgment.

BSB, J

7. The points for consideration are:

(i) Whether the judgment and decree of the appellate Court are liable to be set aside for ordering remand of the matter under Order 41 rule 27 CPC?

(ii) Whether the appellate Court has rightly remanded the matter for appointment of commissioner or whether the appellate court ought to have disposed of the appeal on merits?

POINT No.1:

8. The Supreme Court in Md. Shahabuddin vs. State of Bihar and

Ors.1, held as follows:

"203. In N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278], at page 279, a three judge Bench of this Court succinctly observed as follows:

'9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.'

(2010) 4 SCC 653

BSB, J

204. It is a well-established law that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other provision or rule, and the validity of such impugned order must be judged on a consideration of its substance and not its form.

9. Thus, it is well-settled law that mere quoting of wrong provision of

law is not a ground to decline the relief or to set aside the order if the

order passed or relief granted is within the scope of law. Therefore,

since Order 41 Rule 27 CPC bestowed the appellate Court with power

to remand the matter to the trial Court, the contention of the appellants

that the impugned decree & judgment are not sustainable on that

ground is not acceptable. Hence, this point is held in favour of the 1st

respondent and against the appellants.

POINT No.2:

10. Now, it is to be examined whether the appellate Court has rightly

remanded the matter. The appellate Court has come to the conclusion

that identity of the property in dispute can be ascertained by physical