THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.847 of 2009 JUGMENT: This Civil Miscellaneous Appeal, under Order XLIII Rule 1 (u) of C.P.C., is directed against the judgment and decree passed in A.S.No.218 of 2006 on the file of the learned Principal District Judge, East Godavari District. Appellant is defendant No.2, respondent No.1 is the plaintiff and respondents 2 to 6 are defendant Nos.1,3,4,5,6 and 7 respectively in the suit being O.S.No.90 of 2001 on the file of the I-Additional Senior Civil Judge, Rajahmundry, filed for the relief of declaration of title and recovery of possession of the suit schedule property. The trial Court, on appreciation of the evidence, both oral and documentary, dismissed the suit by judgment dated 29.09.2006. Aggrieved thereby, the plaintiff/respondent No.1 herein carried the matter in appeal being A.S.No.218 of 2006 on the file of the learned Principal District Judge, East Godavari at Rajahmundry. The appellate Court, after going through the evidence and framing some points to decide the appeal, by judgment dated 30.06.2007 allowed the appeal, setting aside the judgment and decree passed by the trial Court and remanding the same to the trial Court with a direction to take steps to appoint an Advocate commissioner to visit the suit locality and fix necessary boundaries and also take measurements of the property with the help of a qualified surveyor taking into consideration the extents and the measurements given in Exs.A4, A2 and other relevant documents pertaining to both the parties at the instance of plaintiff and further enabling the plaintiff to amend the plaint schedule suitably if so needed. Against this order of remand, the present civil miscellaneous appeal is filed. Learned counsel for the appellant strenuously contended that the appellate Court grossly erred in remanding the matter without properly appreciating the evidence on record and it simply came to the conclusion that the identity of the subject property is to be correctly located taking necessary measurements. He further submitted that as the 1st respondent/plaintiff miserably failed to establish her case, the trial Court dismissed the suit, but the appellate Court gave leverage by remanding the matter holding that the identity of the property has to be correctly located taking necessary measurements and, therefore, it remanded the matter to the trial Court, even though there is no scope on that ground to remand the matter under Order XLIII of C.P.C. Sri M.V.Suresh, learned counsel for the respondents, submitted that the crux of the matter is as to the identity of the subject property, which is not identified in the case on hand and, having found that unless and until the identity of the property in question is ascertained taking measurements, the question of identifying the property on the basis of oral evidence is not possible, the appellate Court has rightly remanded the matter to the trial Court for reconsideration with regard to the identity of the property, I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned judgment and other material made available on record. A perusal of the impugned judgment would clearly show that the only ground on which the appellate Court remanded the matter is that the property in question was not identified properly. At paragraph 8 of the impugned judgment, the appellate Court recorded the following findings: “ Unless the identity of the property and the actual right of the plaintiff over the property by virtue of Ex.A4 and Ex.A2 are ascertained the suit cannot be decided properly. It is in fact significant to note here that the entire property of 613 sq. yards of site was sold under the original of Ex.A4 to the plaintiff. It is contended that the original of Ex.A4 is not produced and hence that sale is not established and thus the claim of the plaintiff is rejected. But by virtue of Section 65 of the Evidence Act a document can be established by secondary evidence provided proper explanation is given with regards to the availability of its original. Certainly, the rights of the vendors of the plaintiff are to be examined for the purpose of deciding whether the entire property was conveyed to the plaintiff there under. Further, in this context it is also to be examined the original sale and the subsequent sales. If the vendor of the plaintiff sold the entire extent of 613 sq. yards of site to the plaintiff in 1955 having absolute rights accordingly the plaintiff would be entitled to that property unless she lost such rights by sale or by adverse possession for over the statutory period to some third parties. In other words if the plaintiff continued to have absolute possession over the plaint schedule property any sale of the property by a 3rd party in favour of another 3rd party is not tenable. But it is pertinent to note here that the measurements of the property given in the documents and the plaint schedule are not tallying with each other. Therefore it is difficult to ascertain correctly the rights of the plaintiff over the property. It is to be seen that justice is done to the parties by properly appreciating the material available. If the suit or the appeal is dismissed, because of non-availability of required material, it may cause in justice to the plaintiff. The identity of the property is to be correctly located taking necessary measures. Therefore, under these circumstances I feel that it is a fit case to remand the matter to the lower court to take necessary measures in this context.” In view of the aforesaid findings and also in view of the fact that unless and until the property in question is identified, disposal of the suit will not have any meaning, I am of the considered opinion that the appellate Court has not committed any error in remanding the matter to the trial Court for fresh consideration, by the impugned judgment, particularly for the purpose of identification of the property. Hence, the civil miscellaneous appeal is devoid of merits and is liable to be dismissed. Accordingly, the civil miscellaneous appeal is dismissed. No order as to costs. _____________ C.V.RAMULU,J 01.07.2010 v v