IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTY DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.96 of 2007 Between: Reddy Eswaraiah …Appellant / Plaintiff AND M.G.Auto Nagar, Kothapalli, Proddutur A registered society And others …Respondents / defendants THE HON’BLE SRI JUSTICE NOUSHAD ALI CIVIL MISCELLANEOUS APPEAL No.96 of 2007 JUDGMENT: This appeal is ﬁled against the judgment and decree in A.S.No.69 of 2002 dated 22.11.2006 on the ﬁle of the II Additional District Judge, Kadapa at Proddutur, whereby, the lower appellate Court allowed the appeal ﬁled by the respondents / defendants by setting aside the judgment and decree in O.S.No.29 of 1996 dated 28.08.2000 on the ﬁle of the Principal Junior Civil Judge, Proddutur, remanded the matter to the trial Court for fresh disposal with a further direction to appoint a Commissioner to inspect the suit property in the presence of both the parties. The brief facts of the case are that the appellant / plaintiﬀ ﬁled suit in O.S.No.29 of 1996 in the Court of Principal Junior Civil Judge, Proddutur, for declaration of the title to the plaint schedule property shown as ‘A A1’ and ‘B1 B’ of the plaint plan and to direct the respondents / defendants to put the appellant / plaintiﬀ into possession thereof and for grant of mandatory injunction directing the then 10th defendant to remove the house foundation and restore the suit land to its original position and if necessary, to have the remedy by process of law. According to the appellant / plaintiﬀ, the suit schedule land was purchased by his father by name Reddy Subbanna under registered sale deed dated 24.07.1952 and he was put in possession of the said land admeasuring an extent of 85 cents. One B.Jangam Reddy purchased the other half of 85 cents. The appellant / plaintiﬀ succeeded to the suit property after the demise of his father. Alleging that the respondents / defendants were proclaiming title to the suit land and that they highhandedly divided the land into plots and that the 10th defendant trespassed into a portion of the plaint schedule property and also laid foundation to construct a house, the appellant / plaintiﬀ ﬁled the said suit. Originally, the appellant / plaintiﬀ impleaded ten defendants, who were the members of the ﬁrst defendant society. Subsequently, he ﬁled I.A.No.1121 of 1999 before the lower appellate Court and by orders dated 08.10.1999, the original defendants 2 to 9 were deleted and the present defendant, M.G.Autonagar, Kothapally, Proddutur Mandal, represented by Executive Committee Chief Secretary K.Satyanarayana, was impleaded as defendant No.2. The claim of the appellant / plaintiﬀ was opposed by the defendants. In the written statement ﬁled on behalf of the defendant, the value of the suit schedule property and the Court fee payable thereon, was disputed. It was averred that the ﬁrst defendant society was formed on 17.09.1995 and the society acquired 30 acres of land to establish Auto Nagar. In order to establish the Auto Nagar within the time ﬁxed by the local police authorities, the Executive Body had to enter into agreements, both oral and literal, and made advance payments to the vendors and obtained possession of the lands. In respect of the suit schedule land, the appellant / plaintiﬀ was not satisﬁed with the sale consideration and on the oﬀer made by the respondents / defendants to increase the sale consideration to Rs.2,000/- per a cent of land, the appellant / plaintiﬀ assured to receive the same and deliver the possession. However, the appellant / plaintiff did not take the advance assuring the respondents / defendants he would receive the same as ﬁxed by the elders. It was further averred that the defendants took possession of the land and divided the same into plots and allotted the said plots under a dip conducted by the D-1, Society Management. The appellant / plaintiﬀ was aware of all these developments. After taking possession, the allottees started laying foundation of garages in the suit schedule land. Taking advantage of the absence of any written agreement, the appellant / plaintiﬀ refused to sell the site to the respondents / defendants. It was further averred that the location of the site is such that even if the appellant / plaintiﬀ is really in possession and enjoyment of the said land, he could not enjoy the same nor alienate to anybody, except to the respondents / defendants. It was also averred that the respondents / defendants approached the District Collector, Kadapa, to acquire the schedule land and other surrounding lands for market value and it was further averred that the plaint plan was not correct. On the aforesaid grounds, the respondents / defendants sought for the dismissal of the suit. The trial Court framed the following issues: (1) Whether the plaintiﬀ’s father got the suit land in partition after its purchase under sale deed dated 24.07.1952? (2) Whether the plaintiﬀ has alienated the suit property as per oral agreement in favour of Autonagar Association? (3) Whether the plaintiﬀ is entitled for declaration of his title to suit property and for its possession? (4) Whether the plaintiﬀ is entitled for mandatory injunction as prayed for? (5) Whether this Court has no pecuniary jurisdiction to try the suit? (6) To what order. In addition to the above issues, an additional issue was also framed by the trial Court as to ‘whether the suit is barred by limitation’? The appellant / plaintiﬀ examined himself as P.W.1 and examined P.W.2 and P.W.3 besides marking Exs.A.1 and A.2. The respondents / defendants examined D.W.1 and D.W.2 and marked Exs.B.1 to B.7. On behalf of the Commissioner, Ex.C.1 to C.3 were marked. On issue No.1, as the respondents / defendants admitted that they approached the appellant / plaintiﬀ for sale of the schedule land and based on Ex.A.1, registered sale deed executed in favour of the father of the appellant / plaintiﬀ, the trial Court held issue No.1 in favour of the appellant / plaintiﬀ. As regards issue No.2, the trial Court found that there is no proof that the appellant / plaintiﬀ alienated the suit property in favour of the ﬁrst defendant society and decided the said issue against the respondents / defendants. As regards issue Nos.3 and 4, the trial Court held that the appellant / plaintiﬀ is the absolute owner of the schedule property and that the respondents society, through its members, highhandedly occupied the said lands. The trial Court, therefore, held that the appellant / plaintiﬀ’s land was occupied by the respondents / defendants without any lawful right and, therefore, the appellant / plaintiﬀ was entitled for declaration and recovery of possession of the suit land. Consequently, the trial Court also held that the appellant / plaintiﬀ is entitled for mandatory injunction for the removal of the constructions laid in the suit property. The contention on behalf of the respondents that the appellant / plaintiﬀ did not raise objections when the land was occupied and developed into plots, was not accepted by the trial Court. The trial Court also did not accept the contention that the schedule land got merged with the surrounding and the same has lost its identity and that it is not possible to identify and recognize the plaint schedule land. The trial Court also did not accept that the decree is not executable. The trial Court did not accept the objection as to the pecuniary jurisdiction and held that the suit was ﬁled within the time. The trial Court, therefore, decreed the suit as prayed for by the appellant / plaintiff. Aggrieved by the same, the respondents / defendants ﬁled Appeal Suit No.69 of 2002 before the lower appellate Court. The lower appellate Court allowed the appeal and remanded the matter to the trial Court for disposal of the suit afresh with a direction to appoint a Commissioner to inspect the suit property in the presence of both the parties. The appellant / plaintiﬀ, aggrieved by the order remanding the matter to the trial Court, has filed the present appeal. Heard Sri K.Sitaram, learned counsel appearing for the appellant / plaintiﬀ. Despite service of notice on the respondents / defendants, they have not appeared. The lower appellate Court remanded the matter to the trial Court observing that the Commissioner appointed by the trial Court inspected the suit land without notice to the respondents / defendants, that as per the report of the Commissioner, there were roads and structures, which the appellant / plaintiﬀ did not plead and that the Commissioner actually noted the constructed building up to the level of roof and in the circumstances, it is hard to believe that the appellant / plaintiﬀ was ignorant of all the developments. The lower appellate Court, therefore, felt that the appellant had knowledge of the respondents acquiring the properties for Auto Nagar and, therefore, the allegation of the appellant / plaintiﬀ that the ﬁrst respondent society occupied the suit land in highhanded manner appeared false and baseless. The lower appellate Court, however, observed that the title of the appellant / plaintiﬀ is not in dispute but the appellant / plaintiﬀ is not entitled to relief of perpetual and mandatory injunction as he was aware of the developments on the land. The observation of the lower appellate Court is as under:- “Therefore, I am of the view that some more evidence with regard to actual dealings among the parties is essential to appreciate the contentions of both sides. In addition, localization of the suit property in the presence of both parties, is also material. To enable both sides adduce evidence in respect of their contentions, a remand of the suit to the trial Court, appears just and proper. The decree needs to be set aside to enable the same. Accordingly, the decree and judgment are set aside. The point is held accordingly.” At the outset, it may be noted that the lower appellate Court did not formulate point / points for determination as per the provisions of Order 41 Rule 31(a) C.P.C. The lower appellate Court also did not consider the evidence on record properly. As noted above, the parties adduced both oral and documentary evidence before the trial Court based on which, the trial Court decreed the suit. The lower appellate Court did not consider the evidence adduced by the parties. It did not even advert to the evidence and gave a ﬁnding that the evidence adduced by the parties was not suﬃcient for deciding the appeal. At any rate, it was not the case of either of the party that there was no evidence before the lower appellate Court to adjudicate upon the correctness of the judgment in the suit. On the other hand, there was a clear admission on the part of the respondents / defendants that the appellant / plaintiﬀ is the owner of the property and they approached him to sell the schedule land for establishing Auto Nagar. The respondents / defendants did not dispute the title of the appellant / plaintiﬀ. In very clear terms, they admitted that there is no written agreement or other instructions under which, they purchased the schedule land and came into possession of the same. Hence, basing on the same, the lower appellate Court could not have come to a diﬀerent conclusion regarding the title of the appellant / plaintiﬀ. On the other hand, the lower appellate Court in fact recorded a ﬁnding that the title of the appellant / plaintiﬀ is not in dispute. On recording such a ﬁnding, the lower appellate Court could not have remanded the matter to the trial Court for fresh disposal on the ground that the appellant / plaintiﬀ did not plead the existence of foundations and some constructions on the suit land. The observation of the lower appellate Court that some more evidence is required with regard to actual dealings among the parties is, therefore, beyond anybody’s comprehension. The lower appellate Court also ignored the fact that the appellant / plaintiﬀ, infact, sought for mandatory injunction to remove the house foundation and to direct restoration of the property to the original position and also to delivery vacant possession of the schedule land. This Court, in a similar fact situation in A.Ramaiah & another Vs. Pedda Sayanna Sailoo (died) and others[1], held that “From a plain reading of Rule 23-A it is evident that when the suit is decreed otherwise than on a preliminary issue and retrial is considered necessary, it is only then that the case has to be remanded. In other words, it is only after the judgment under has been reversed on merits when the question of relief falls for consideration, if the appellate Court comes to the conclusion that retrial is necessary, then it can remand the case. The approach to reverse the decree merely to order remand is contrary to latter and spirit of Rule 23-A C.P.C.” In the light of the above facts and circumstances and the principle stated in the aforesaid judgment, I am of the opinion that the impugned judgment and decree in A.S.No.69 of 2002 dated 22.11.2006 is not sustainable and the matter is liable to be remanded to the lower appellate Court for re-consideration. Accordingly, the judgment and decree dated 22.11.2006 in A.S.No.69 of 2002 on the ﬁle of the II Additional District Judge, Kadapa at Proddutur, is set aside and the matter is remanded to the lower appellate Court for consideration of the matter afresh and on such remand, the lower appellate Court will consider the matter on the basis of the evidence available on record after putting the parties on notice. In the result, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. ___________________________ JUSTICE NOUSHAD ALI February 26, 2010 Bvv [1] 1989 (1) ALT 566