THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.953 of 2009 JUDGMENT: This Civil Miscellaneous Appeal, under Order XLIII Rule 1(u) of C.P.C., is filed against the judgment and decree, dated 24.02.2009, passed in A.S.No.21 of 2006 on the file of the learned Senior Civil Judge, Hindupur. Appellants are the defendants and respondent is the plaintiff. Respondent laid the suit in O.S.No.9 of 1999 on the file of the learned Junior Civil Judge, Hindupur, seeking permanent injunction and other appropriate reliefs. After appreciation of the evidence, both oral and documentary, and after hearing the learned counsel on both sides, the suit was dismissed by judgment dated 20.06.2005. Aggrieved thereby, the respondent filed A.S.No.21 of 2006 on the file of the learned Senior Civil Judge, Hindupur, who, after considering the judgment of the trial Court and the other material placed on record, came to the conclusion that the trial Court failed to consider the report of the Commissioner, appointed by orders dated 01.03.1999 passed in I.A.No.58 of 1999, for which no reasons are assigned for the same, and that unless there is clear finding on record as to whether the trial Court disagreed with the Commissioner’s report or agreed with the Commissioner’s report, the appeal cannot be decided and, therefore, the appellate Court allowed the appeal on 24.02.2009, remanding the matter to the trial Court for re-consideration by taking into consideration the report of the Commissioner and giving sufficient opportunity to both sides to adduce further evidence if any. Challenging the same, the present appeal is filed. Sri P.Narahari Babu, the learned counsel for the appellants, fairly conceded that the trial Court failed to consider the report submitted by the Advocate Commissioner, who had noted down the physical features of items 1 to 3 of the suit schedule property, but merely because the trial Court has not considered the Advocate Commissioner’s report, nothing prevented the appellate Court in taking the same into consideration and deciding the matter on its own merits. Instead of doing so, the appellate Court remanded the matter for fresh consideration and, thus, it exceeded its powers vested under Order XLI Rule 25 of CPC. Per contra, Sri N.Ashwath Narayana, learned counsel appearing for the respondent, supported the judgment and decree passed by the appellate Court and submitted that when there is no consideration at all as to the Advocate Commissioner’s report, which was crucial document in the teeth of the nature of the suit filed by the respondent/plaintiff, there was no other option for the appellate Court except to remand the matter for reconsideration, since there is every possibility of examining the Advocate Commissioner and such course cannot be adopted by the appellate Court. I have given my earnest consideration to the respective submissions of the learned counsel on either side and perused the judgments and other material made available on record. A perusal of the impugned judgment shows that the appellate Court gave the findings at paragraphs 9 and 10, which read as under: “The lower court failed to consider the report of the commissioner who was appointed by the orders of the lower court in IA 58/99 in OS 9/99 dated 1-3-99. The lower court did not assign any reasons as to why it failed to consider the report of the commissioner. O.26 R.10(3) CPC says “where the court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to may as it shall deem fit.” The report of the commissioner who was appointed by the orders of the lower court is available on record. It is the specific case of the appellant-plaintiff that the defendants and one Ratnamma have got right in Ac.1-24 cents in the suit S.No. It is also the specific contention of the respondents-defendants that the plaintiff is having only half right after excluding 24 cents from out of Ac.2-48 cents in the suit S.No.32-5. The lower court observed in para 10 of the impugned judgment that the plaintiff is not claiming half share of southern share or northern side of the way leading to Pathraganipalli. The lower court also observed that as per Ex.A1, the plaintiff has not claimed property on eastern side or western side in suit S.No. But, the lower court observed that the plaintiff has claimed the right in 3 plots with different directions in suit S.No. Before giving such finding the lower court considered the commissioner’s report. When it is the case of the appellant-plaintiff that he is in possession and enjoyment of Ac.1-24 cents in the suit S.No., with specific boundaries, the lower court ought to have considered the report of the commissioner to give a clear finding. This court cannot decide this appeal unless there is clear finding on record as to whether the lower court disagreed with the commissioner’s report or agreed with the commissioner’s report. Therefore, I fee that it is a fit case to remand the matter to consider the report of the commissioner to give a clear finding. Accordingly, this point is decided.” In view of the above, I am of the considered opinion that the appellate Court has not committed any error in remanding the matter for re-consideration, particularly, with reference to the report of the Advocate Commissioner, who was appointed during pendency of the suit, and for deciding the matter after giving opportunity to both parties. Thus, 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 01.07.2010 v v