3THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No. 424 of 1999 Judgment: This appeal is filed by the first defendant and he questions the concurrent judgment and decree of the courts blow. For the sake of convenience the parties herein would be referred to as they are arrayed before the trial court. 2. The facts, in brief, are as follows: The plaintiff filed the suit for possession seeking eviction of the defendants and future profits. He alleged in the plaint that the suit schedule property originally belonged to one Veera Raghavamma and that the plaintiff had purchased the same under Ex A-1 sale deed on 3-6-1982. At that time, however, the property was under the tenancy of DW-2 and as stated, the possession of the plaint schedule property, was, admittedly, not given to the plaintiff. Later under Ex A-7 dated:10-6- 1984, DW-2, the tenant, vacated the premises and handed over the possession to the plaintiff. It is alleged that the plaintiff, however, lost possession on 13-7-1984 when first defendant, with the help of defendant Nos. 2 to 6 trespassed into the suit schedule property and has been in possession since then. 33. The first defendant filed the written statement, which was adopted by other defendants. As per the allegations of the first defendant, Veera Raghavamma, his mother, was only a nominal owner and that the property actually belonged to their father late K. Ramaiah. It was alleged that under the sale deed, Ex A-2 dated:16— 6—1961, father of the first defendant sold the property to Veera Raghavamma, but continued to enjoy the rights of owner ship, which shows that the said sale transaction was only a nominal and though the title stood in the name of Veera Raghavamma, ostensible ownership remained with the father of the first defendant. It is further alleged that DW-2 was the tenant of the father of the first defendant and the theory of relinquishment of possession by him under Ex A-7, as propounded by the plaintiff was seriously disputed. The defendants therefore alleged that there is no question of trespass as alleged and on the contrary, father of the first defendant was in possession during his lifetime through DW-2, tenant and after the tenant vacated, the first defendant continued to remain in possession. 4. On the aforesaid pleadings the trial court framed the following issues: i) Whether the plaintiff is entitled for recovery of possession as prayed for? ii) Whether the plaintiff is entitled for any future profits? iii) To what relief? On 8-11-1989 the following Additional issue was framed: i) Whether the plaintiff and his predecessors in title are in possession of the schedule property within statutory period? 5. In support of his case the plaintiff got examined PWs 1 to 6 and marked Ex A-1 to A-8 and the defendants got examined DWs 1 to 4 and marked Exs B-1 to B-5. The defendants have also got marked Ex X-1, the notice issued by DW-2 exercising his option to purchase the suit schedule property and the said notice was issued to the plaintiff on 5-3-1983. 6. The trial court, on the basis of the oral and documentary evidence, came to the conclusion that no evidence can be let in contrary to Ex A-1 in favour of the plaintiff in view of S. 91 and 92 of the Evidence Act and it also relied upon the judgment of the Hon’ble Supreme Court in Mithilesh Kumari v. Prem Behari[1] to hold that Benami Transactions Prohibition Act is held to be applied to all properties irrespective of their duration and origin. The trial court further came to the conclusion that Veera Raghavamma, herself, was examined as PW-5, which established Ex A-1 sale deed in favour of the plaintiff, apart from Ex A-7 relinquishment of tenancy by DW-2 and thereby the plaintiff’s title and entitlement to possession stands established and consequently decreed the suit. 7. On appeal by the defendants, the lower appellate court confirmed the findings of the trial court. Hence this second appeal. 8. This second appeal was admitted on 10-12-1999 and ground No.7, raised in the memorandum of grounds of appeal, was formulated as substantial question of law, which reads asunder: a) Whether S.92 of evidence Act bars evidence-showing want of consideration? b) Whether the judgment of the appellate court is vitiated by an incorrect assumption of fact that the appellant is the daughter of PW-5? c) Whether the judgment of the appellate court is vitiated by failure to frame the point for consideration viz., with regard to the nominal nature of Ex A-2 and its failure to discuss the said point? d) Whether the rejection of the evidence of DW-2 and the Will Ex B-1 on the ground that the appellant’s father had executed Ex A-2 sale deed in favour of PW-5, when Ex A-2 is itself assailed as being nominal? e) Whether Ex A-7 relinquishment said to have been executed by DW-2 relinquishing the tenancy rights is valid in view of S.14 of the A.P. (Andhra Area) Tenancy Act? 9. Heard the learned counsel for the appellant and the learned counsel for the Respondents. 10. In view of the concurrent findings, the learned counsel for the appellant confined his submissions to the said substantial question of law referring to appreciation of Ex A-2 the basic title document of the vendor of the plaintiff under which she is alleged to have become owner of the suit schedule property. The learned counsel submits that in spite of the specific plea of the defendants that the sale deed is only a nominal, standing in the name of Veera Raghavamma, the property actually belonged to the father of the first defendant, was not considered by both the courts below. The learned counsel also submits that, admittedly, said Veera Raghavamma was not residing with the father of the first defendant or the first defendant and was, in fact, residing at Pithapuram for last 17 or 18 years prior to Ex A-1, sale deed and, therefore, she was neither in possession nor exercised any rights of ownership. It is alleged that the father of the first defendant had nominally executed the sale deed in the name of his wife, Veera Raghavamma to screen the property from creditors, though the purpose of sale is mentioned in Ex A-2 as to raise money for his house hold expenses. In any case the subsequent act of the father of the first defendant and thereafter the first defendant, coupled with the fact of even as per PW-5 (Veera Raghavamma), DW-2, the tenant was the tenant of the father of first defendant and therefore, the learned counsel submits that the courts below have accepted the title of the plaintiff under Ex A-1 without examining the nature of title under Ex A-2. He also submits as that the judgment of the Hon’ble Supreme Court in Mithilesh Kumari (1 supra) was reversed by the Hon’ble Supreme Court in R. Rajagopal Reddy v. Padmini Chandra Sekharan[2] the said crucial question remained un-decided by the trial court and the lower appellate court has merely confirmed the said finding without going into the said question raised by the first defendant. 11. I have considered the aforesaid submission and have also examined the evidence of PW-5, particularly, her cross examination where she stated that she was residing at Pithapuram for several years and when the plaintiff came and offered to purchase the property for Rs.1,000-00 she agreed and executed Ex A-1, sale deed. She also states that, however, she was not given any consideration; on the ground that possession was not delivered and ultimately the possession which was with DW-2 was delivered by him two years after the sale deed. The courts below have not accepted the oral evidence of PW-5 about circumstances around execution of Ex A-1 but Veera Raghavamma, in any case, has not taken any steps to annul the said sale on the ground of non passing of consideration. The said aspect therefore, need not detain us. Ex A-2 sale deed, on which the learned counsel for the appellant has placed reliance, shows that it was executed by K. Ramaiah, father of the first defendant and Appa Rao, father of D-2, D-3 and D-4. In the said sale deed, except saying that it is being executed for the purpose of house hold expenses, it does not state any reason as to why the husband and son of Veera Raghavamma had to execute the sale deed in the name of Veera Raghavamma for the schedule property. 12. The evidence of PW-5, Veera Raghavamma, herself, shows that she has been residing away from her husband and children at Pithapuram for more than 17 – 18 years. It is, therefore, clear that neither she has exercised any right of ownership on the basis of Ex A-2, nor she was in possession of the property and the possession, admittedly, remained with DW-2, who also claimed that originally he was a tenant under Ramaiah. These circumstances, according to the learned counsel, throw considerable doubt with regard to the nature of Ex A-2 and the appellant/defendant contends that the courts below ought to have considered the documents in support of her plea that Ex A-2 was only a nominal document. 13. It is, however, true that the said contention, though raised, had escaped the attention of both the courts below. In fact, the lower appellate court framed the point for consideration only as “Whether and judgment which is now impugned is liable to be set aside? 14. It has now been well settled by several decisions of the Hon’ble Apex Court and this Court that the first appellate court being the final court on facts, must properly frame the point for consideration under Order 41 Rule 31 CPC. The point for consideration must, therefore, disclose the application of mind by the lower appellate court, the vital issues involved in the suit and the first appellate court is expected to weigh the evidence, as well as consideration of the evidence by the trial court and arrive at a final conclusion on the said crucial issues. In the circumstances I am of the view that the judgment of the lower appellate court is thoroughly unsatisfactory on these aspects and therefore it cannot be sustained. 15. It is also contended by the learned counsel that Ex A-7 relinquishment deed by DW-2 was not in accordance with S. 14 of the A.P. (Andhra Area) Tenancy Act, but that aspect also remained unconsidered by both the courts below. 16. I am, therefore, of the view that in order to grant decree to the plaintiff under Ex A-1, it was essential for the courts below to have adjudicated upon Ex A-2, the title document of the plaintiff’s vendor, particularly, when the first defendant claimed that the aforesaid sale deed was only a nominal and that the plaintiff’s vendor never exercised any rights of ownership and possession. The said aspect was not considered by the trial court, as well as the lower appellate court. Therefore, I deem it appropriate to set aside the judgment of the lower appellate court by answering the question No. 7(c) in favour of the appellant and remit the appeal to the first appellate court. 17. In normal course, the matter would have been sent to the trial court for consideration of all these aspects; but, in view of the fact that the suit was of the year 1984 and as the lower appellate court has the same powers as that of the trial court to take oral and documentary evidence, if the parties so desire to adduce, no prejudice would be caused to either of the parties by remitting the appeal for fresh consideration to the lower appellate court. 19. In the result the second appeal is allowed. The judgment and decree passed by the first appellate court – the learned IV Additional District Judge, Kakinada in A.S.No. 22 of 1990 dated:23-3-1999 is set aside and the appeal is remitted to the learned IV Additional District Judge, Kakinada for fresh consideration by framing appropriate points for consideration and decide the appeal afresh in accordance with law. In the circumstances, the parties are directed to bear their own costs. ___________________________ VILAS V. AFZULPURKAR, J. March 23, 2011. *BVS IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDEABAD Wednesday, the 23rd day of March, 2011. Present: The Hon’ble Sri Justice Vilas V. Afzulpurkar S.A.No. 424 of 1999 Between Kondepudi Nagamani ..Appellant and Dharmarapu Satyanarayana @ Annavaram And others …Rspondents 2 The Hon’ble Sri Justice VILAS V. AFZULPURKAR S.A.No. 424 of 1999 Wednesday, the 23rd day of March, 2011. [1] AIR 1989 SC 1247 [2] AIR 1996 SC 238