IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.1367 OF 1996 DATED:22.07.2010 Between: Smt. Argonda Posani and others … Appellants And Mohammad Gulam Hussain and others … Respondents THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.1367 OF 1996 JUDGMENT: The respondents 1 to 4 filed O.S. No.71 of 1984 against the appellants in the Court of Subordinate Judge, Bodhan, initially for the relief of perpetual injunction and thereafter for declaration of title and recovery of possession of the schedule property, which is about Ac.0.10 guntas of land. It was pleaded that the suit schedule property was purchased by their predecessor in title by name Abdul Razzak in the year 1957 under an agreement of sale from one Argonda Isaji, predecessor of appellants 1 to 5 and when their possession was sought to be interfered with, they filed the suit. It was further pleaded that the appellants dispossessed them after the trial Court vacated the order of interim injunction, and appellants 1 to 5 conveyed the property to the sixth appellant. The appellants opposed the suit and filed a written statement. They denied the possession of the respondents upon the suit property at any point of time. Through its judgment dt.31.3.1992 the trial Court dismissed the suit with costs. Aggrieved thereby, the respondents filed A.S. No.12 of 1992 in the Court of the Additional District Judge, Nizamabad. The lower appellate Court allowed the appeal through its judgment dt.6.8.1996. It framed certain additional issues and remanded the matter to the trial Court for fresh adjudication and disposal. The same is challenged in this civil miscellaneous appeal. Heard Sri Serla Pandari, learned Counsel for the appellants. The respondents were represented by an Advocate at one point of time. However, after the appeal was dismissed for default on 23.8.2004, the appellants filed an application for restoration of the appeal. At that stage, the learned counsel for the respondents stated that the file has been taken away by his clients and he has no instructions. The learned Counsel for the appellants sent notices to the respondents and it is stated that they are returned as ‘not claimed’. The suit filed by the respondents was initially for a relief of perpetual injunction and thereafter it was amended to one of declaration of title and recovery of possession of the suit schedule property. The trial Court framed the following issues for its consideration. 1. “Whether the father of the plaintiffs purchased the suit land under an agreement of sale dated 5.2.1957 from Argonda Isaji ? 2. Whether the father of the plaintiffs perfected his title over the suit land by virtue of being in possession for more than prescribed period ? 3. Whether the plaintiffs are entitled for the recovery of possession of the suit land ? 4. Whether the defendant No.6 purchased the suit land from the defendant Nos.1 to 5 ? 5. Whether Gulan Dastagir is necessary party to the suit ? 6. Whether the plaintiffs are entitled for mandatory injunction for the removal of the construction made by the defendant No.6 ? 7. Whether the plaintiffs are entitled for mesne profits? 8. What is effect of the dismissal of the suits O.S. No.154/77 and O.S. No.270/77 on the file of District Munsif, Bodhan ? 9. Whether the court fee paid is insufficient ? 10. To what relief ?” On behalf of the respondents, P.Ws.1 to 6 were examined and Exs.A.1 to A.30 were filed. On behalf of the appellants D.Ws.1 and 2 were examined and Exs.B.1 to B.23 were filed. The trial Court dismissed the suit on finding that the respondents failed to establish their case. The lower appellate Court framed the following points for its consideration. 1. “Whether the plaintiffs are owners of the suit schedule property having purchased the same under an agreement of sale or having perfected their title by adverse possession ? 2. Whether the plaintiffs are in possession of the schedule property by the date of the suit as a tenant or otherwise? 3. Whether the plaintiffs are entitled for recovery of possession of property ? 4. To what relief ?” On finding that the trial Court did not bestow its attention to some of the aspects, the lower appellate Court remanded the suit by framing certain issues namely; i) Whether D.1 to 5 or any of them are owners of the suit schedule property ? ii) Whether the plea of surrender set up by the defendants is true and if not what are the remedies open to the parties ? iii) Whether the plaintiff is entitled to recover the possession of the property ? It is no doubt true that the lower appellate Court ought to have expressed its own views on the basis of the evidence on record instead of remanding the matter. At the same time, it cannot be ignored that the attention of the trial Court was not invited to certain important aspects. The appellants cannot be said to have suffered any detriment on account of the remand of the matter to the trial Court. This Court is of the view that in addition to the issues framed by the lower appellate Court, the following issue also deserves consideration, namely; Whether the relief of declaration of title on the strength of adverse possession can be granted to the plaintiffs who, admittedly are not in possession of the property ? Since the suit is of the year 1984, the trial Court is directed to renumber it and at the same time give priority in disposal. The Civil Miscellaneous Appeal is accordingly allowed. No costs. _____________________ L. NARASIMHA REDDY, J 22.07.2010 bnr