THE HON’BLE SRI JUSTICE C.V. RAMULU C.M.A. No. 306 of 2008 JUDGMENT: This civil miscellaneous appeal, under Order 41 Rule 1 of the Code of Civil Procedure, is directed against judgment and decree made in A.S. No. 236 of 2005 dated 11.2.2008 on the file of learned Principal District Judge, Nellore remanding the matter to the lower Court by setting aside the judgment and decree made in O.S. No. 239 of 2000 dated 9.11.2005 on the file of learned II Additional Senior Civil Judge, Nellore. Appellants are plaintiffs and respondent is defendant. It appears, plaintiffs earlier filed suit in O.S. No. 75 of 1987 for partition and separate possession of the suit schedule property along with two other items of the property. The said suit was decreed and the share of the plaintiffs was decided as 2/9th in the suit schedule property. While so, the present suit i.e. O.S. No. 239 of 2000 was filed for recovery of a sum of Rs.1,20,000/- towards damages from the defendant with subsequent interest and costs, on the ground that the defendant was in possession of the property since three years preceding the suit. The said suit was decreed as prayed for. However, respondent-defendant carried the matter in appeal – A.S. No. 236 of 2005. The said appeal was allowed and the matter was remanded for reconsideration by setting aside the judgment and decree passed by the trial Court, vide judgment and decree dated 11.2.2008. Aggrieved thereby, the present appeal is filed. Heard the learned counsel for the parties and persued the material available on record. As seen from the record, in coming to the conclusion that the suit house fetches Rs.15,000/- per month, the trial Court relied on the aspect that adjacent house consisting one room of the suit house is fetching rent of Rs.1400/- per month. However, as rightly pointed out by the lower appellate Court, the plaintiffs did not file any document to show that the defendant let out the suit house and getting rent of Rs.15,000/- per month. The plaintiffs have not even examined the tenant of the said house in support of their case. Under those circumstances, the lower appellate Court rightly held that absolutely there was no evidence as to what exactly was the rent that the defendant was getting, for the purpose of fixing damages. In the absence of any clinching evidence, the trial Court ought not to have decreed the suit as prayed for and, therefore, the lower appellate Court rightly set aside the findings recorded by the trial Court and remanded the matter for fresh consideration. The lower appellate Court has not committed any error in remanding the matter for re-consideration of the suit afresh. The C.M.A. is devoid of merits and liable to be dismissed. It is accordingly dismissed. No order as to costs. JUSTICE C.V. RAMULU. Date: 24-6-2010. MVB.