IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY NINETH DAY OF JUNE TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No.79 OF 2010 Between: Smt. Manne Mangatayaru ..... APPELLANT AND Sri Ambati Ramakrishna ....RESPONDENT The Court made the following: HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No.79 OF 2010 JUDGMENT: Plaintiff in O.S.No.670 of 1995 on the file of Principal Senior Civil Judge, Visakhapatnam, is the appellant in this Civil Miscellaneous Appeal. She filed the suit for reliefs of declaration of title, recovery of possession and mandatory injunction for removal of a compound wall, against the respondent. She pleaded that plot Nos.39 and 40 of lay out plan No.32/94, dated 22.10.1994, carved out of survey Nos.47 and 48 of Madhavadhara were purchased by her through sale deed dated 06.06.1983 and that the respondent is the owner of Plot No.24 of lay out plan No.13/70 carved out of Survey No.46 of Madhavadhara. It was stated that the appellant was residing elsewhere and when she went to her plot in the year 1994 to plan construction of house, it was found that the respondent encroached plot No.39, to an extent of 173 square yards. On further verification, she is said to have come to know that the vendor of the respondent had title only in respect of 182 square yards, whereas she executed the sale deed in favour of respondent for an extent of 355 square yards. With these and other allegations, she prayed for the reliefs of declaration of title, recovery of possession and perpetual injunction. The respondent opposed the suit by stating that in addition to the plot owned by his vendor, he has purchased another extent of 90 square yards through an agreement of sale. Even while asserting his title in respect of the suit plot, the respondent raised the plea of adverse possession. The trial Court decreed the suit through judgment, dated 20.11.2006. Aggrieved thereby, respondent filed A.S.No.1 of 2007 in the Court of Principal District Judge, Visakhapatnam. The lower appellate Court has set aside the decree passed by the trial Court and remanded the matter for fresh consideration and disposal. Hence, this Civil Miscellaneous Appeal. Heard the learned counsel for the appellant and the learned counsel for the respondent. The trial Court framed four issues for its consideration viz.,: “1) Whether the plaintiff is entitled for decree as prayed for? 2) Whether the suit is bad for non-joinder of necessary parties? 3) Whether the plaintiff has got, right, title and interest in the plaint schedule property? 4) Whether there is any cause of action for the suit?” On behalf of the appellant PWs.1 to 3 were examined and Exs.A1 to A4 were filed. On behalf of the respondent, DWs.1 to 5 were examined and Exs.B1 to B3 were filed. The trial Court appointed a Commissioner and the record prepared by him was taken as Exs.C1 to C4, apart from Ex.X1. The suit was decreed and the lower appellate Court remanded the matter to the trial Court. An appeal is continuation of a suit. The appellate Court can deal with every aspect of the suit and adjudicate the matter as though it is hearing at the first instance. The necessity to remand, that too, by first appellate Court would arise only when a specific deficiency is noticed and it is felt that further is necessary. In the instant case, the respondent took two alternative pleas, namely, assertion of title over the suit schedule property and plea of adverse possession. These two opposite pleas cannot co-exist. The trial Court recorded a specific finding to the effect that plot No.24 owned by the respondent and plot No.39 owned by the appellant, though are from different layouts, abut each other. Not only the evidence of the respective witnesses but also of the Commissioner was taken into account in arriving at this conclusion. The lower appellate Court could certainly have pronounced upon the correctness or otherwise of the said finding. Instead, it has assumed to itself certain facts, viz., that being plots from different layouts, there does not exist any possibility for them to abut each other. On this premise, the lower appellate Court expressed the view that much more evidence is needed when there is a specific defect. The appellant contends that the evidence on record is sufficient to establish that both the plots abut each other. Remand of a case is not a matter of course. Before ordering it, a specific defect must be pointed out and the necessity to remand should also be pointed out by the appellate Court. The view taken by the lower appellate Court in this case cannot be countenanced. It is to be noted further that there was no complaint from any party, that they were prevented from adducing any evidence. The Court cannot compel the parties to adduce further evidence, when the parties did not make out any grievance in this regard. Hence, the Civil Miscellaneous Appeal is allowed and the order of the lower appellate Court is set aside. The lower appellate Court is directed to hear the appeal once again and decide it on merits. There shall be no order as to costs. ___________________________ L. NARASIMHA REDDY, J June 29, 2011 MD HONOURABLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL No.79 OF 2010 June 29, 2011