THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.952 of 2007 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.19 of 2003 on the file of the learned District Judge, Vizianagaram. Appellants are defendants 3 to 6, respondents 1 and 2 are the plaintiffs and respondents 3 and 4 are defendants 1 and 2 in the suit being O.S.No.107 of 1997 on the file of the Principal Junior Civil Judge, Vizianagaram, filed for declaration of title and recovery of possession of the suit schedule property. After considering the matter in detail, the trial Court dismissed the suit, by judgment dated 23.09.2002. Aggrieved thereby, the plaintiffs/respondents 1 and 2 herein carried the matter in appeal being A.S.No.19 of 2003 on the file of the learned District Judge, Vizianagaram. The appellate Court, after going through the evidence and framing some points to decide the appeal, 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 for the identity of the property, by causing necessary survey of the property with reference to relevant survey stones and field maps, if any, giving opportunity to the defendants to place necessary rebuttal evidence and then dispose of the matter afresh without taking into consideration all the observations made by it, within a period of three months from the date of receiving the suit record, by judgment dated 30.06.2007. Against this order of remand, the present civil miscellaneous appeal is filed. Learned counsel for the appellants strenuously contended that the appellate Court, without properly appreciating the evidence on record, simply came to the conclusion that the identity of the subject property was not clearly established. He also submitted that it is neither the case of the plaintiffs nor the case of the defendants as to missing of the identity of the subject property and that the evidence on record is sufficient to give a finding by the appellate Court with respect to identity of the property in question. Further, the judgments of both the Courts below do not fit into the teeth of Order XLI Rule 23-A and, if necessary, the appellate Court ought to have framed some issues as required Order XLI Rule 25 of C.P.C. and then remanded the matter. Learned counsel relied upon the judgments of this Court in Jagarlamudi Rosaiah v. Daggubati Venkanna[1] a n d Late Kummari Jangaiah (died per L.R’s) v. Somavarapu Savithri[2], in support of his contention that the power of the appellate Court to remand the matter is very limited and that, before remanding, the appellate Court should satisfy the ingredients of either Order XLI Rule 23-A or Order XLI Rule 25 of the CPC, and in the case on hand, the appellate Court could not satisfy the ingredients of either Order XLI Rule 23-A or Order XLI Rule 25 of the CPC, and therefore, the order of remand does not arise. Per contra, learned counsel for the respondents supported the order of remand passed by the appellate Court and submitted that the crux of the matter is as to the identity of the subject property and, therefore, unless and until the subject property is identified, the question of answering all the points framed by the appellate Court would not arise. 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 appellate Court framed the following points, in order to decide the appeal: “(1) Whether the plaintiffs placed sufficient evidence to the effect that there is identity of the property ? (2) Whether the suit is barred by limitation ? (3) Whether the plaintiffs are entitled to the relief of declaration of title to the property? (4) Whether the plaintiff is entitled for the possession of the property? (5) Whether the trial Court properly considered the matter and arrived at correct conclusion? Insofar as identify of the subject property, framed under Point No.1, is concerned, the appellate Court recorded the finding at paragraph 10, which reads as under: “As per Ex.A1 a copy of the so-called settlement deed, the boundaries of the property purchased by the plaintiff are, East and South: Dry land of Karrothu Pydithalli, West: Dry land of Angati Venkataswamy; and North: Dry land of Kantrayi Pydithalli. As per Ex.A5 plaint plan, the boundaries of the property are, East: Vacant plant to some extent and the tiled kitchen room to some extent of the plaintiffs; South: Part of the tiled house of the defendant; West: Tiled house of the defendant; and North: Vacant place to some extent and the house of the plaintiffs. There is no clear identity on the Southern side and P.W.2 Surveyor who claims to have visited the suit property and did necessary survey has admitted that he did not examine any documents relating to the defendants and at that time, the plaintiffs were present and hence the question of identity of the property is not established. After going through the said circumstances, I also feel that the identity of the property is not clearly established. It is necessary to see that the documents of both the parties are examined and the property is identified by conducting proper survey with reference to relevant survey stones and authenticated field maps if any.” With reference to point No.2 as to limitation, the appellate Court came to the conclusion that though the suit was filed within time, however, in view of contemplation to remand the matter to ascertain the identity of the property, the lower Court shall consider the question of limitation afresh basing upon the material available and not taking into consideration the observations made by it. So far as points 3 to 5 are concerned, it was held that unless the identity of the property is established, these points cannot be answered. The findings recorded in the judgments relied upon by the learned counsel for the appellants are no way helpful to the case on hand, as the facts of those cases have no relevancy to the facts of the present case. Since the appellate Court, after considering the matter in detail, has rightly arrived at the conclusions referred to supra, I am of the considered opinion that the appellate Court has not committed any error in remanding the matter by the impugned judgment, and therefore, 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 24.06.2010 v v [1] 2008 (1) ALT 88 [2] 2005 (2) ALT 578