HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No. 460 of 1993 Date: 10-02-2011 Between: Zehra begum and others ………… Petitioners and Ghulam Jeelani and others ……… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO S.A.No. 460 of 1993 ORDER: This Appeal under Section 100 of C.P.C. is at the instance of the plaintiff aggrieved by the judgment and decree passed in A.S.No.19 of 1986 on the file of the Additional Chief Judge-cum-II Additional Metropolitan Sessions Judge, Hyderabad, which was disposed of in pursuance of an order of remand passed by this Court in the earlier round of litigation in S.A.No.103 of 1993, dated 30-10-1992. Briefly the facts, which gave rise to the present proceedings, are that the appellant-plaintiff filed a suit for partition, and the same was contested by the respondents, especially defendant No.3. Several contentions were raised on the basis of which issues were framed. After a regular trial, the suit was dismissed holding in favour of D-3. On further Appeal at the instance of the appellant-plaintiff, the judgment of the trial Court was confirmed to certain extent and further the Appeal was allowed holding that the property is liable for partition amongst the plaintiff, D-2 and D-3. On further Second Appeal, a learned single Judge of this Court as mentioned above, remanded the matter to the first appellate Court for fresh disposal of the appeal on merits, observing that having regard to the plea taken by D-3 that the plaint schedule property was allowed to be retained towards his share in pursuance of a family arrangement, the said plea had not been considered properly and therefore, the second appeal is allowed and remanded the matter to the first appellate Court only to consider as to whether the arrangement pleaded by D-3 is true? While remanding with such specific direction, this Court has also observed that it is not necessary to consider any other plea except the said plea of D-3 that the other properties alienated by the plaintiff, father of D-1 and D-2 had also to be taken into consideration in order to determine the shares of the sharers, in case the first appellate Court is going to hold that the case of D-3 in regard to the arrangement pleaded by him is not true. Further, it was also observed that it is not open to either of the parties to adduce any further evidence and the matter has to be disposed of by the first appellate Court on the basis of the material on record. Subsequent to the order of remand, the first appellate Court has once again taken up the matter and ultimately dismissed the Appeal. On a perusal of the entire reasoning and conclusions given by the first appellate Court in para-20 of the judgment, it is seen that in terms of the directions specifically given by this Court to go into and give a finding as to the plea of D-3 in regard to the family arrangement and not otherwise, there is no such finding specifically given in regard to such family arrangement either ‘yes’ or ‘no’. However, after referring to certain material on record, the first appellate Court has observed that one has to infer that D-3 was alone enjoying this property in his own right by some arrangement or otherwise without being questioned by the plaintiff or D-1 or D-2 or their heirs. Such inferences of existence of some arrangement is not the conclusion which could have been arrived by the first appellate Court in terms of the order of remand with a specific direction. Necessarily as a fact it has to be enquired into as to whether such family arrangement existed or not, or whether it is true or not. However the first appellate Court did not properly adhered to the order of remand in a proper perspective. Necessarily it calls for fresh disposal on merits again, after hearing both sides on the respective pleas on the basis of the evidence. If the same is not sufficient, the remand should have been to the trial Court rather than to the first appellate Court with an opportunity to both sides to lead evidence afresh in support, rather than restricting to the material on record. In view of the above circumstances, the Second Appeal is allowed. The judgments and decrees of the both the Courts below are set aside and the matter is remitted to the trial Court for fresh disposal on merits, in accordance with law, in terms of the question as to whether “the arrangement pleaded by D-3 is true or not?”. Both the parties are at liberty to lead any further evidence afresh in the suit and the trial Court shall dispose of the suit after giving notice and hearing both sides. In the circumstances, no order as to costs. _______________ B. PRAKASH RAO, J Date: 10-02-2011 YCR