IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.550 OF 1999 Between: Maddela Jermia @ Munigadu. - - - Appellant/ Appellant/ Defendant No.1. AND 1. Maddela Munemma (Nakshtramma). 2. Maddela Munaiah (Died) - - - Respondents/ Respondents/ Plaintiff & D-2. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.550 OF 1999 JUDGMENT: This appeal is filed by the first defendant. The appeal was admitted on 08-06-2000 on the following substantial questions : 1) Whether the entry in a service register is to be taken as the date of birth of an illiterate individual in the backdrop of Indian Society around 1930’s without any other entry with regard to the said date of birth either in the village records or Municipal records and the said date is to be taken in deciding the dispute to property and execution of a document of title? 2) Whether the lower appellate Court could pass a judgment without framing the points for determination and contrary to Order 41 Rule 31 of CPC? 2. Heard both the learned counsel. 3. While the appellant’s counsel contends that Defendant No.2, the elder brother of first defendant-appellant remained exparte and there is neither any pleading nor any evidence on his part to contend and to substantiate that he was also known by the name ‘Munigadu’, the learned counsel states that the original title deed Ex.A-2, dated 16- 07-1931 is a sale deed obtained by the grand mother of Defendant Nos.1 and 2 in the name of minor grand son ‘Munigadu’ while the appellant-first defendant claims he was known by that name earlier. The contention on behalf of the plaintiff as well as Defendant No.2 also is that they are known by the same name. The learned counsel states that there is no evidence in support of the said contention on the part of the plaintiff but both the courts have proceeded on an assumption that D-2 was also known by that name and on the basis of the subsequent gift deed Ex.A-1 dated 25-05-1984 by Defendant No.2 in favour of the plaintiff, a declaration of title has been granted to the plaintiff with consequential relief. Learned counsel therefore submits that judgments of both the Courts are perverse and unsustainable. 4. Learned counsel for the respondent on the contrary contends that Service Register of Defendant No.1 was produced and marked through PW.3 which shows that his date of birth is 15-07-1932 i.e. much after the title document Ex.A-2 dated 16-07-1931. Learned counsel therefore submits that when first defendant-appellant was not even born, reference to the name “Munigadu” has put to the second defendant only and as such the finding of both the courts below is justified. 5. I find it difficult to accept the said contention of the learned counsel for the respondent in view of the fact that D-2 remained exparte and in the absence of any pleadings or evidence on his behalf, the contention that he was also known by the same name prima-facie appears to be not based on any evidence. It is also interesting to notice that D-2 has participated in the Rent Control Case instituted by the plaintiff earlier to this suit and has filed counter supporting to plaintiff in the Rent Control Case. It is therefore not explained as to why he has not participated in the present suit. Apart from the above material, the lower appellate Court while hearing the first appeal has committed serious error in not determining the point for consideration as required under Order 41 Rule 31 of CPC. The point framed by the lower appellate Court is : whether the plaintiff is entitled to declaration as prayed for and whether there is any error in the decision of the lower Court inviting interference by the appellate Court? The purport of Order 41 Rule 31 CPC has not been kept in mind by the lower appellate Court. It cannot be forgotten that it is a final Court of fact and must redetermine all questions of fact by examining the oral and documentary evidence apart from the pleadings of the parties. The point for consideration required to be framed by the first appellate Court therefore must reflect the determination of points in controversy between the parties. The impugned judgment of the lower appellate court clearly does not satisfy the said requirement and has to be treated as a defective judgment in the light of Order 41 Rule 31 CPC. The second substantial question of law framed in the appeal therefore deserves to be answered in favour of the appellant. The appeal therefore succeeds to that extent and it is appropriate that the appeal is remitted back to the lower appellate court for fresh consideration. 6. In view of the said order of the remand proposed, this Court refrains from recording any finding with respect to merits as alleged by both the learned counsel so as not to prejudice either of the parties before the lower appellate Court. Impugned judgment of the lower appellate Court is set aside. A.S.20 of 1992 is remitted to the learned Senior Civil Judge, Proddatur, for fresh consideration and the said Court is requested to hear and determine the appeal afresh in accordance with the law preferably before the 31st December, 2010. Office therefore is directed to send back the record of the lower appellate Court within a period of two weeks from today. Accordingly, the Second Appeal is allowed. No order as to costs. The status-quo existing in this Appeal as on today shall therefore operate till 31-12-2010. ________________________ VILAS V. AFZULPURKAR, J. September, 14, 2010. DSH