IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF FEBRUARY, 2011 : PRESENT: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No. 186 of 2000 BETWEEN: Gurijala Siddhaiah Naidu … Plaintiff-Appellant AND 1.Nara Ramahandriah Naidu … Defendant-Respondent Counsel for Appellant : Mr. R. Subba Rao Counsel for the Respondent : Mr. M.P. Chadra Mouli Mr. Janardhan Rao kotta The Court made the following JUDGMENT: This is an appeal by the plaintiffs arising out of the suit for declaration of title and for permanent injunction. 2. The plaint allegations are that the senior paternal uncle of the plaintiff purchased the property in question under the sale deed dated 30.03.1926 and after his death, since his two daughters were already married, they are not claming any rights in the property. The plaintiff continued to remain in exclusive possession and succeeded to this property after the death of his uncle. It is alleged that the defendant, who is not concerned with the family, claims to have obtained a decree against the plaintiff herein in O.S.No. 501 of 1966 on the file of the District Munsif Court, Kadapa and executed the said decree vide E.P.No.73 of 1977 and attached plaintiff’s property bearing Pymaish No.160 to an extent of Ac.2.39 cents, while the claim of the plaintiff in the present suit relates to Pymaish No.161/2 admeasuring Ac.2.01cents out of Ac.4.04 cents and Pymaish No. 162/2 for an extent of Ac.2.06 cents out of Ac.4.13cents. The plaintiff also claimed that there are two wells and a motor attached exist on suit schedule property. However, on the basis of the attachment of Pymaish No.160 obtained by the defendant in the suit and the execution petition, referred to above, it was alleged that the defendant is trying to interfere with and claiming the suit schedule property as the one which is liable to be proceeded against in pursuance of the said attachment. 3. The defendant resisted the suit justifying that the property attached by him falls within the suit schedule property and has relied upon Exs.C5 and C6 - the Commissioner’s report. 4. The trial court after considering the evidence on record and on the basis of comparison of boundaries came to conclusion that as the defendant had purchased Pymaish No.160 in the court auction after paying valid consideration, plaintiff has no right to seek declaration, consequently, it dismissed the plaintiff’s suit. 5. On appeal, being A.S.No.48 of 1998, filed by the plaintiff, the lower appellate Court in a short judgment primarily comprising of one paragraph dismissed the appeal. Hence, the second appeal by the plainitff. 6. Heard Sri. R.Subba Rao, learned counsel for the appellant and Sri. M.P.Chandramouli, learned counsel for the respondents. 7. This appeal was admitted on the substantial question of law which primarily centres round the appellate Court’s failure to frame point for determination and follow Order 41 Rule 31 of the Code of Civil Procedure, 1908. While admitting the second appeal on 16.03.2000, though there was an order as to admission and grant of status quo, substantial question of law was not formulated. Now, this appeal has been argued on merits by both sides, it is necessary to formulate substantial questions under section 100(5) CPC. The substantial questions of law required to be formulated are as follows: 1. Whether the Lower Appellate Court failed to frame points for determination and record its findings on each such point as mandated by Order- 41, Rule –31 of C.P.C. and whether the judgment is therefore vitiated for non-observance of the said provisions. 2. Whether the Lower Appellate Court, as the final Court of fact, ought to have referred to the oral and documentary evidence adduced by both the parties and discussed it and assessed the material on record and recorded its findings. 8. I am inclined to accept the contentions of the learned counsel for the appellant, as the judgment of the lower appellate Court, as stated above, is very cryptic and neither any point for consideration is framed nor there is any discussion. In the trial court, plaintiff had laid evidence on behalf of PWs.1 to 3 his behalf and marked documents Exs.A1 to A61 whereas the defendant examined DWs.1 and 2 and marked Exs.B1 to B8 apart from the report of the Commissioner and documents relating thereto marked as exhibit C1 to C6. As a final Court of fact, it is the duty of the first appellate Court to determine the question of fact and law by discussing them in detail and has also to deal with the reasoning of the trial court. The findings recorded in the impugned judgment of the lower appellate Court shows that neither Order 41 Rule 31 CPC was kept in mind nor the attention of the lower appellate Court was focussed on the points that arise for consideration. The appellate Court had, therefore, failed in it’s duty as a final Court of fact in deciding the appeal on merits. The impugned judgment of the lower appellate Court being defective as it sans consideration of questions of fact and law, I am constraied to set aside the same by answering both the substantial questions of law, framed above, in favour of the appellant. The second appeal is accordingly allowed. The judgment of the lower appellate Court is set-aside and the appeal, being A.S.48 of 1998 is remitted to the learned District Judge, Kadapa for fresh consideration in accordance with law. The costs of this appeal shall abide the decision of the lower appellate court in the appeal remitted herein. It is desirable that the lower appellate Court shall decide the appeal as expeditiously as possible and in any case within six (6) months from the date of receipt of the copy of this order. _______________________ VILAS V. AFZULPURKAR 3rd day of February, 2011 DSK/ysk THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A.No. 186 of 2000 DATED: 03.02.2011 DSK/YSK