THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NOS.627 OF 2010 AND 686 OF 2011 COMMON JUDGMENT: These two Civil Miscellaneous Appeals are preferred against the common judgment, dated 28-09-2007 in Appeal Suit Nos. 96 and 104 of 2005 on the file of the Principal District Judge, East Godavari at Rajahmundry, in remanding the suits i.e., O.S.Nos.372 of 1997 and 310 of 1999 on the file of the IV Additional Junior Civil Judge, Rajahmundry, with a direction to the trial Court to give opportunity to adduce necessary evidence with regard to actual location of the properties and also consider relevant provisions of Stamp Act and Registration Act. 2. O.S.No.372 of 1997 was filed for permanent injunction restraining the defendant and his men from interfering with peaceful possession and enjoyment of the plaintiff over an extent of 143.75 square yards of vacant site in R.S.No.459 situated at Parijellipeta village of Rajanagaram Mandal. 3. O.S.No.310 of 1999 was filed by the plaintiff (defendant in O.S.No.372 of 1997) for division of plaint ‘A’ schedule property into 3 equal shares and for allotment of two such shares to the plaintiff leaving open share to the 2nd defendant touching his father share and to direct both the defendants to execute registered sale deed in favour of plaintiff in relation to two shares that are allotted to the plaintiff from out of the plaint schedule property on such division as aforesaid and also to direct 2nd defendant to give vacant possession of the same to the plaintiff after removing the structure thereon constructed by him. 4. The brief averments of the plaint in O.S.No.372 of 1997 are thus: The plaintiff is the absolute owner of the plaint schedule property having purchased it from Nandyala Bapiraju (D1 in O.S.No.310 of 1999) and brother of the defendant who is the plaintiff in O.S.No.310 of 1999 for valid consideration under a registered sale deed, dated 29-05-1997. At the time of purchase, there was a fencing on the southern boundary. In fact he was in possession and enjoyment of the property from 1999 by virtue of an agreement of sale, dated 15-09-1994. The defendant has been unnecessarily interfering with his peaceful possession and enjoyment of the property without any manner of right. Hence, the suit. 5. The defendant filed written statement denying the averments made in the plaint and stated that there was oral partition of their joint family properties among the defendant, his brothers and their father late Somanna, and an extent of Ac.1.20 cents of land situated at Perijellipeta village was kept for house sites. During the life time of their father, he made a free grant of an extent of Ac.0.50 cents out of it to some deserving people and he constructed mangalore tiled house in a portion of the remaining Ac.0.70 cents and all of them lived therein till 1994. Their father died about 15 years before filing of the suit. Defendant and his brothers notionally divided Ac.0.70 cents of site into 4 equal shares and plot No.2 fell to the share of Nandyala Bapiraju (D1 in O.S.No.310 of 1999) and plot No.3 fell to the share of the defendant. Later there was an understanding among Nandyala Bapiraju, the defendant and the plaintiff that the defendant should purchase 2/3 rd share and plaintiff should purchase 1/3 rd share of Nandyala Bapiraju. Accordingly, Nandyala Bapiraju executed an agreement of sale dated 15-09-1994 in favour of defendant for a consideration of Rs.3,568/- in respect of 663 square yards and delivered possession of the property. He also executed another agreement on the same day in favour of plaintiff in respect of remaining 1/3rd share. The plaintiff without taking any measurement of the bit purchased by him, constructed a building and also raised a compound wall just before filing the suit occupying the property agreed to be sold to the defendant. The plaintiff and Nandyala Bapiraju colluded together and brought into existence a sale deed accordingly. The plaintiff also obtained ex parte injunction behind the back of the defendant. Hence, he prays to dismiss the suit. 6. Basing on the above pleadings, the following issues have been framed for trial. 1.Whether the plaintiff is entitled for permanent injunction as prayed for? 2.To what relief? 7. The plaintiff in O.S.No.310 of 1999 (defendant in O.S.No.372 of 1997) filed the suit re-iterating the averments made in the written statement filed in O.S.No.372 of 1997. He further stated that on ground verification the presumed extent of Ac.0.70 cents of land was found to be only Ac.0.52 cents in R.S.No.459 and therefore, re-division of property into 4 equal shares and re- allotment of share of Nandyala Bapiraju and allotment of corresponding contents in favour of the purchasers is essential. Further defendant No.2 (plaintiff in O.S.No.372 of 1997) is not a bona fide transferee of the property said to be sold by the defendant No.1 (Nandyala Bapiraju). Further defendants 3 and 4 were added as proforma parties as they also got shares in the land. 8. Defendant No.2 (plaintiff in O.S.No.372 of 1997) filed written statement adopted by the defendant No.1 (Nandyala Bapiraju) denying the averments made in the plaint and re-iterating the averments made in the plaint in O.S.No.372 of 1997. 9. Basing on the above pleadings, the following issues have been framed for trial. 1.Whether the plaintiff is entitled for partition of ‘A’ schedule property into 3 equal shares and for allotment of 2 such shares as prayed for? 2. Whether the defendants 1 and 2 are liable to execute a regd. Sale deed in favour of plaintiff in relation to 2 shares out of plaint schedule property after partition and for vacant possession of the same? 3.To what relief? 10. Both the suits were clubbed and common evidence was recorded in O.S.No.372 of 1997. The plaintiff himself was examined as P.W.1 and got marked Exs.A1 and A2. The defendant himself was examined as D.W.1 and another witness as D.W.2 and got marked Exs.B1 to B3. 11. The trial Court after considering both oral and documentary evidence available on record, vide common judgment, dated 14-03-2005, while dismissing O.S.No.372 of 1997 partly allowed O.S.No.310 of 1999 granting specific performance of Ex.B2 agreement of sale, dated 15-09-1994. Challenging the same, A.S.Nos.96 and 104 of 2005 were filed by the unsuccessful parties. The 1st appellate Court after re-appreciation of evidence on record, vide impugned common judgment, remanded the matters to trial Court on the ground that the extents given in Exs.A1 and B2 are not tallying with the shares of Nandyala Bapiraju and the plaintiff and defendant cannot claim more extent than the extent sold or agreed to be sold and with a direction to the trial Court to give opportunity to adduce necessary evidence with regard to actual location of the property covered under Exs.A1 and B2. Aggrieved thereby, the present appeals are preferred. 12. Now the point for determination is whether the judgment of the 1st appellate Court is correct, legal and proper? 13. There cannot be any dispute that the property covered under Ex.A1 is 143.75 square yards with the following boundaries: East: R & B road 12.5 yards West: A site of Singana Sathiraju Garu 12.5 yards North: A property of Nandyala Suryarao 12.5 yards South: A house site of Nandyala NarayanaMurthy 11.5 yards. Similarly, property covered under Ex.B2 is an extent of 663 square yards with the following boundaries: East: R & B road 17 square yards West: Site of Singana Sathiraju North: Site sold to Nandyala Chakravarthi (plaintiff) on the same day 39 yards. South: Site of Nandyala VenkataRao 39 yards. Unless the properties in both the suits are established or proved beyond preponderance of probability, no decree can be passed. Basing on Ex.A1-registered sale deed, the parties cannot claim over and above the extents as mentioned in Exs.A1 and B2. It is not in dispute that originally joint family was having Ac.1.20 cents of land and father of the defendant (Somanna) made a free grant of land to some people leaving balance of Ac.0.70 cents and four brothers including Nandyala Bapiraju got partitioned the properties. In that partition, it is not known what is the extent each brother has got. In the absence of evidence, it can be said that all the brothers shall get equal shares. Unless identity of the property is established, question of granting decree in respect of a particular extent of property with boundaries does not arise. Therefore, to let in evidence with regard to actual location of two properties and for the purpose of consideration of relevant provisions of Stamp Act and Registration Act with regard to Ex.B2, the 1st appellate Court remanded the matters to the trial Court. The said order does not call for any interference by this Court. 14. Accordingly, both the Civil Miscellaneous Appeals are dismissed. Since the suits are of the year 1997 and 1999, the trial Court is directed to dispose of the suits within a period of four (4) months from the date of receipt of a copy of this judgment, after giving reasonable opportunity to both parties. No order as to costs. ________________ K.C. BHANU, J DATED: 07-09-2011 Hsd