IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL No.438 OF 1999 Between: Kankanambedu Mallikeswara Chetty. - - - Appellant/ Respondent/Plaintiff. AND Angadi Venkata Krishnaiah. - - - Respondent/ Appellant/ Defendant. The Court made the following: HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR SECOND APPEAL NO.438 OF 1999 JUDGMENT: This appeal is filed by the plaintiff against the decree of the lower appellate court by which the suit filed by the plaintiff stood dismissed. The said decree of reversal is questioned in this Appeal. 2. While admitting the appeal on 11-06-1999, this Court framed the following substantial questions of law for consideration : 1) As the failure of First Appellate Court to frame points for determination as required by Order 41 Rule 33 of the Civil Procedure Code vitiated the judgment under challenge? and 2) Whether the First Appellate Court was justified in raising an adverse inference against the plaintiff for non-production of Caveat O.P. of Ramalakshamma when the said Caveat O.P. was put forth as a piece of circumstances by the defendant? 3. Learned counsel for the appellant contends that the lower appellate court has only framed omnibus point for consideration as mentioned in paragraph No.8 of the judgment i.e., whether the decree and judgment of the trial Court is on correct lines? Learned counsel states that such a practice on the part of the appellate Court was not appropriate and in support of his contention, he cites more than one decision of this Court reported in Iruvanti Gopinatha Rao and others Vs. Vadlapudi Narayana and others[1], Viyyapu Danayya and Peethala Appa Rao and others[2], Karamalakunta Kadiramma Vs. Karamalakunta Dasappa and another[3] and Vadde Anjanappa Vs. Vadde Hanumantappa and another[4]. 4. Learned counsel contends that the appellant is seriously prejudiced on account of the said defect in the impugned judgment of the lower appellate Court, as several factual aspects have not been properly appreciated by the lower appellate Court. 5. So far as merits in the impugned judgment are concerned, learned counsel submits that non-filing of Caveat O.P. filed by one Ramalakshamma alone is taken as decisive factor against the appellant by the lower appellate Court without appreciating the other evidence on record. 6. Learned counsel for the respondent, on the contrary, submits that the said point for consideration as framed by the lower appellate Court covers the entire issue arising in the suit, and paragraph 10 of the impugned judgment is considered, documents Exs.A-1 to A-3 relied upon by the plaintiff were taken into consideration only after duly taking into consideration Ex.B-1 relied upon by the respondent-defendant. I find that Ex.B-1 is actually dated 11-10-1914 but in the impugned judgment it was wrongly referred to as Ex.D-1 instead of Ex.B-1. 7. Learned counsel submits that the finding of the lower appellate Court on merits as found in Paragraph 10 completely answered the contentions on behalf of the plaintiff. He also relied upon the points in paragraph No.11 and contended that the sale deeds of third parties i.e., Exs.A-2 and A-3 and the recitals therein, are firstly not admissible and ought not to have been marked and consequently in any case, those recitals do not bind the parties herein and merely because one of the boundaries in Ex.A-2 describes the vendor of the plaintiff as possessor of the land, that by itself is not conclusive. 8. I have examined the judgments of the trial court and the lower appellate court in the light of the rival contentions of both the parties. So far as the first aspect gathered on the substantial question of law referred to above is concerned, I find force in the contention of the learned counsel for the appellant that the question as framed by the lower appellate court is not in conformity with Order 41 Rule 31 of CPC. The said provision has been interpreted time and again by this Court in various judgments cited and relied upon by the counsel for the appellant. It cannot, therefore, be said that the point for consideration, as framed under the impugned judgment, truly and correctly reflects the controversy arising in the appeal and more than the said defect, the impugned judgment of the lower appellate Court makes a very brief analysis of the plaintiff’s documents and defendant’s documents and there is no discussion or analysis with regard to the extent covered by Ex.B-1 and the extent to which plaintiff claims right through his vendor. The lower appellate Court as a final Court of fact ought to have examined each document and then could have reached appropriate conclusions based thereon. The lower appellate Court, while reversing the judgment of the trial Court, ought to have considered the reasoning of the trial Court as well. In view of this, the judgment of the lower appellate Court cannot but said to be defective and not in conformity with Order 41 Rule 31 of CPC and as such it is required to be set aside, the appeal deserves to be remitted back to the lower appellate Court for fresh consideration in accordance with the law. 9. Therefore, the impugned judgment of the lower appellate Court is set- aside and A.S.2 of 1995 shall stand remitted for fresh consideration to the learned Principal Senior Civil Judge, Gudur. The said Court shall hear both the parties on all the questions of fact and law and shall decide the Appeal expeditiously, and in any case before 31st December, 2010. In view of the said order of the remand proposed, this Court refrains from recording any finding with respect to merits as alleged by both the learned counsel so as not to prejudice either of the parities before the lower appellate Court. Both the parties are at liberty to raise all their contentions, in accordance with law, before the lower appellate Court. Office is directed to send back the record of the lower appellate Court within a period of two weeks from today. 10. Accordingly, Appeal is allowed. No order as to costs. The status-quo existing in this Appeal as on today shall, therefore, operate till 31-12-2010. ________________________ VILAS V. AFZULPURKAR, J. September, 13, 2010. DSH [1] 1997 (2) ALT 785 [2] 1997 (3) ALT 266 [3] 1999 (2) ALT 256 [4] 2003 (3) ALT 527