THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.735 of 2009 (Dated 10-12-2009) Between: Smt.Ahmedi Begum W/o M.Mohsin R/o H.No.2-7-487/A, Mukarrampura, Karimnagar District. ….Appellant A n d Smt.Ayesha Khaton W/o Syed Asif Ali R/o H.No.13-6-434/A/225, Hyderabad ..Respondent THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.735 of 2009 ORDER: This Civil Miscellaneous Appeal is directed against the judgment and decree dated 5.3.2009 passed in A.S.No.513 of 2007 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad, whereby and whereunder, the learned Additional Chief Judge, set aside the judgment and decree dated 12.3.2007 passed in O.S.No.3003 of 2004 on the file of the V Senior Civil Judge, City Civil Court, Hyderabad and remanded the matter back to the lower Court for framing proper issues and to give an opportunity to both sides to adduce evidence and then dispose of the suit according to law. 2. The appellant-Smt. Ahmedi Begum is the plaintiff in O.S.No.3003 of 2004. She filed the suit against the defendant-Ayesha Khatoon for declaration of title and recovery of possession and also for consequential injunction. It is the plea of the appellant-plaintiff that she purchased the suit schedule property from Mirza Murrad Baig under registered sale deed dated 20.11.2003. Subsequently, the defendant trespassed into the suit schedule property by breaking open the lock on the night of 04.1.2004 by throwing her and her family members. The appellant-plaintiff claims to have lodged a complaint with the police, but the police failed to take any action. Hence, she filed the suit for declaration of title, recovery of possession and for consequential injunction. 3. The defendant filed written statement resisting the claim of the plaintiff. According to the defendant, she purchased the suit schedule property under an agreement of sale dated 13.3.1992 for a consideration of Rs.79,000/- and obtained possession of the property on the date of the agreement. The trial Court framed the following issues :- “ (i) Whether the plaintiff is entitled for declaration as absolute owner of the suit property? (ii) Whether the plaintiff is entitled to recover possession of the suit property? (iii) Whether the plaintiff is entitled for injunction as prayed for in respect of the suit property? (iv) To what relief? ” 4. On behalf of the appellant-plaintiff, two witnesses were examined as Pws.1 and 2 and five documents were marked as Exs.A-1 to A-5. On behalf of the defendant, one witness was examined as Dw.1 and five documents were marked as Exs.B-1 to B-5. The trial Court, considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the plaintiff is the absolute owner of the suit schedule property having purchased the same under registered sale deed dated 20.11.2003. Accordingly, the suit of the plaintiff came to be decreed, by judgment dated 12.3.2007. Assailing the judgment and decree passed in O.S.No.3003 of 2004, the defendant preferred an appeal, being A.S.No.513 of 2007, on the file of the III Additional Chief Judge, City Civil Court, at Hyderabad. Pending the appeal, the appellant-defendant filed an application, being I.A.No.623 of 2009, under Order 41 Rule 27 CPC to receive certain documents as additional evidence. It appears some third party also filed an application under Order 1 Rule 10 CPC seeking his impleadment as a party respondent in the appeal. 5. The lower appellate Court without adjudicating on the application filed under Order 41 Rule 27 CPC or the application filed under Order 1 Rule 10 CPC, proceeded to set aside the judgment and decree dated 12.3.2007 passed in O.S.No.3003 of 2004 and remanded the matter to the trial Court for fresh disposal. The relevant portion of the judgment passed by the lower appellate Court reads as hereunder:- “ As seen from the judgment of the lower Court, it held the issues in favour of the plaintiff recording a finding that the plaintiff is entitled for declaration of title and for recovery of possession by virtue of Ex.A-1 sale deed and it rejected the contention of the defendant. No doubt, the lower Court elaborately discussed both oral and documentary evidence placed before it. But the lower Court did not frame any issue regarding the alleged dispossession nor given any finding whether the plaintiff was dispossessed by the defendant forcibly, though it was specifically pleaded by the plaintiff that she was disposed by the defendant from the suit schedule property after purchase. Similarly, the applicant’s side also filed a petition under Order 41, Rule 27 CPC in I.A.No.623/2009 to receive additional document of copy of alleged agreement. Further, there is another application filed under Order 1, Rule 10 CPC by a third party contending that the third party is a necessary party to the suit. Further, it is seen from the evidence of Pws.1 and 2 that in their cross examination they have spoken about the sale in favour of defendant in respect of the suit schedule property. In the light of their evidence and in view of the possession of defendant by virtue of the alleged agreement of sale in respect of the suit schedule property and as there is no finding given by the lower Court regarding alleged dispossession, I am of the view that it is a fit case where the matter can be remanded to the lower Court for fresh disposal after framing necessary issues and after giving sufficient opportunity to both sides to adduce their evidence. As the matter is being remanded, the appellant is at liberty to produce necessary documents and adduce necessary evidence in support of the contention of appellant. Similarly, it is for the petitioner in I.A.No.848/2008, which is filed under Order1 Rule 10 CPC, for impleading of a party in the suit, to approach the lower Court and file such a petition. Under these circumstances, I am inclined to remit back the matter to the lower Court for fresh disposal with the above observation. Hence, this point is answered accordingly.”. 6. The appellant filed C.M.A.M.P.No.1256 of 2009 seeking for interim stay of the order dated 5.3.2009 passed in A.S.No.513 of 2007 on the file of the III Additional Chief Judge, City Civil Court, Hyderabad pending appeal. An interim order came to be granted on 9.7.2009 for a period of six weeks. Subsequently, the appellant-plaintiff filed C.M.A.M.P.No.2274 of 2009 seeking extension of the interim order dated 9.7.2009. 7. When C.M.A.M.P.No.2274 of 2009 came up for consideration, with the consent of the counsel appearing for the parties, the appeal itself is taken up for final disposal. 8. Heard learned counsel appearing for the appellant-plaintiff and learned counsel appearing for the respondent-defendant. 9. Learned counsel appearing for the appellant-plaintiff submits that the lower appellate Court without considering the findings recorded by the trial Court, proceeded to remand the matter for fresh consideration, and therefore, the order of remand passed by the lower appellate Court is liable to be set aside. A further submission has been made that the respondent-defendant failed to place on record the agreement of sale under which she claims to have purchased the property, and the trial Court considered that fact and rejected the plea advanced by the defendant with regard to her purchase of property under the agreement of sale dated 20.11.2003. He would also contend that unless the defendant place on record sufficient reasons for not producing the agreement of sale in the trial Court, she cannot be permitted to file the agreement of sale at the appellate stage. 10. Learned counsel appearing for the respondent-defendant submits that the lower appellate Court, having considered that the trial Court has not framed the issues properly, proceeded to allow the appeal being A.S.No.513 of 2007 and remanded the matter back to the trial Court for fresh disposal, and therefore, order of remand is not liable to be interfered with by this Court. 11. As seen from the judgment of the trial Court, the plea of the defendant is that she purchased the property under an agreement of sale dated 13.03.1992. Indisputably, the said agreement was not exhibited in the trial Court. For the first time, the defendant produced the agreement of sale along with an application under Order 41 Rule 27 CPC in the lower appellate Court. Unless the said application is allowed, adverse finding recorded by the trial Court against the defendant for not producing the agreement of sale, is not required to be disturbed. The lower appellate Court has committed an error in adjudicating the appeal without deciding the application under Order 41 Rule 27 CPC on merits. 12. Accordingly, this Civil Miscellaneous Appeal is allowed and the impugned order is set aside remanding the matter back to the lower appellate Court for fresh disposal according to law, uninfluenced by the observations made herein above. No order as to costs. ____________________________ B.SESHASAYANA REDDY, J Dt.10-12-2009 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Miscellaneous Appeal No.735 of 2009 DATED: 10-12-2009