HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.297 of 2007 Date: February 11, 2011 Between: Maddu Munaswami Naidu. … Appellant And 1. Dega Munaiah & 11 others. … Respondents * * * HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CIVIL MISCELLANEOUS APPEAL No.297 of 2007 JUDGMENT: The appeal is directed against judgment dated 20.04.2005 passed in A.S. No.10 of 2004 on the file of the Court of Senior Civil Judge, Srikalahasti, preferred against judgment and decree passed in O.S. No.166 of 1998 on the file of the Court of Principal Junior Civil Judge, Srikalahasti directing to remand the matter to the trial court for fresh consideration and disposal as per observations made therein. 2. The appellant herein is the third respondent in the first appeal and the third defendant in the suit. The Respondents 1, 2, 3, 4 and 5 herein are the appellants in the first appeal and plaintiffs in the suit, whereas, the remaining respondents herein are the respondents in the first appeal and defendants in the suit. 3. The plaintiffs filed the suit for grant of declaration and injunction in respect of the suit schedule property. The case of the plaintiffs is as follows. Since immemorial times the villagers of Penkulapadu have been using the schedule land as village communal poramboke for keeping their manure heaps and hayricks. There are two roads in the site being maintained by Narayanapuram Panchayat and there is a channel from Kasim Nakkalakaluva and without any manner of right the defendants have been trying to interfere with the plaintiffs’ rights to use the site. Hence the plaintiffs are entitled to the relief of declaration that the schedule property happened to be communal land and also for the consequential relief of injunction. 4. On the other hand, the defendants 1 and 2 remained ex parte and the defendant No.4 died pending the suit and the third defendant filed written statement, whereas, the defendants 5 to 9 filed no written statement. 5. The claim on behalf of the third defendant is that he constructed a house in the western side of the suit property about 15 years prior to the filing of the written statement and the property originally belonged to one Dega Munaswamy Naidu, Dega Krishnama Naidu and Dega Chanchaiah being their ancestral property and they sold Ac.1-65 cents of land in S.No.158/6 to the defendants 3 and 4 under registered sale deed dated 26.3.1974 for valid consideration and delivered the possession of the property and ever since the defendants 3 and 4 have been in the possession of the property making necessary improvements, and hence the claim of the plaintiffs is to be dismissed. 6. On the strength of the pleadings, the trial court framed the following issues and additional issue: (1) Whether the plaintiffs are entitled for declaration as prayed for? (2) Whether the plaintiffs are entitled for permanent injunction as prayed for? (3) To what relief? Additional issue: 1 . Whether the terraced house in the suit site was constructed after filing the suit or much earlier i.e., 12 years ago and whether the plaintiffs are entitled for mandatory injunction as prayed for? 7. On behalf of the plaintiffs, 12 witnesses were examined as P.Ws.1 to 12 and Exs.A-1 to A-8, Exs.C-1 to C-6 and Exs.X-1 to X-20 were marked and on behalf of the defendants 4 witnesses were examined as D.Ws.1 to 4 and Exs.B-1 to B-13 were marked. 8. On the basis of material available the trial Court held all the issues against the plaintiffs and in favour of the third defendant and accordingly dismissed the suit. Aggrieved by the judgment and decree passed in the Suit, A.S. No.10 of 2002 was preferred on the file of the Court of Senior Civil Judge, Srikalahasti. 9. The first appellate Court while disposing of the matter made the following observations: “As could be seen only one issue was framed by the learned trial court pertaining to the extent of terraced house, but in para 22 the learned trial court had discussed the scope and ambit of Survey and Boundaries Act etc., and ultimately held that the plaintiffs are not entitled for declaration. As noticed earlier, the grievance of the plaintiffs is that no reasonable opportunity was afforded to them to effectively lead evidence inasmuch as no separate issue was framed. The issue is not purely a legal one. When it is a mixed question of law and fact, certainly evidence has to be adduced on it. The decisions, which were referred to supra were rendered in the peculiar circumstances obtaining in those cases. Since a serious dispute is raised by the counsel for the appellants that the civil court has no jurisdiction to try the matter under the Inams and Abolition Act, the matter requires reconsideration.” 10. It is the contention of learned counsel for the appellant/third defendant that it is incorrectly observed by the first appellate court that only one issue was framed for consideration because in fact the said four issues were framed for consideration and further the question of survey and boundaries can be considered under the issues already framed and for that no additional issue need be framed and further the fact that number of witnesses were examined and also number of documents were marked on behalf of the plaintiffs amply prove that sufficient opportunity was in fact given for them in order to uphold their claim and further with regards to the question of jurisdiction of the civil Court to try the matter when such a plea was taken by the plaintiffs themselves automatically the matter would stand dismissed and for that there is no need to remand the matter to the trial Court for adjudication and the first appellate court failed to appreciate the matter properly and arrived at erroneous conclusions and therefore the judgment and decree passed by the appellate court are to be set aside and further the first appellate court is to be directed to reconsider the matter and dispose of it basing upon the material available. 11. Therefore, it is to be mainly examined as to whether the findings given by the first appellate court are proper and remittance of the matter to the trial Court for the purpose of considering the points raised by the appellate Court is judicious or not? 12. Point: It is quite surprising that the 1st appellate court observed that only one issue was framed even though four issues were framed and further for the purpose of survey and boundaries separate issue need not to be framed and further the question of jurisdiction of the civil court is to be examined in the light of the corresponding plea taken by the counsel for the appellants/plaintiffs because in such case there would be no need to further adjudicate the matter and on those grounds the court remanded the matter to the lower court. Therefore, the direction to remand the matter to the trial court is not maintainable, as it is without any basis. Instead of that the first appellate court should have examined the material available with reference to the issues framed and disposed of the matter properly adjudicating it. 13. In the result, the appeal is allowed and the judgment and decree dated 20-4-2005 passed by the first appellate court are set aside and the matter is remanded to the first appellate court for the disposal of the first appeal in the light of the observations made above. No costs. _______________________________ G. KRISHNA MOHAN REDDY, J Date: February 11, 2011. BSB