Case: Syeda Rahimunnisa Vs. Malan Bi (Dead) By Lrs. &amp; Anr.Etc

3. These appeals involve a short point. However, in order to appreciate the point, it is necessary to mention the relevant facts infra.4. The two appellants – Smt. Syeda Rahimunnisa and Syed Hyder Hussaini are wife and husband whereas the respondent no. 1(a) to 1(f) are the legal heirs of one late Haji Mian being mother, wife, sons and daughters respectively.5. The dispute between the two aforementioned families relates to the ownership and possession of portion of land (which is a part of entire area classified as Government Burial Poramboke) situated in Kurnool (AP) bearing S.No.35/5 renumbered as 35/5-C1/A-1 (hereinafter called. The appellants filed two civil suits being O.S.No. 77 of 1994 and O.S.No 65 of 1995 against Haji Mian and others. The present respondent nos.1(a) to 1(f) who were later added as party defendants are legal representatives of Haji Mian.7. So far as O.S. No 77 of 94 is concerned, the appellants (plaintiffs) claimed therein eviction of the respondents from the suit-land. It was alleged that appellant no. 1 being the owner of the suit-land had inducted respondent no.1 (defendant no.1) as her tenant on a monthly rent of Rs.150/- for a period of three years on the strength of lease deed dated 01.06.1982. It was alleged that contrary to lease conditions and withoutconsent, the respondent no.1 erected four huts and sublet to defendant nos.2 to 6 on monthly rent. It was also alleged that respondents deniedtitle.8. So far as O.S. no. 65 of 1995 is concerned, the appellants (plaintiffs) claimed therein money decree of Rs.5400/- towards damages for use and occupation of the suit-land for the period (01.07.1989 to 31.07.1992) i.e. 36 months and further at the rate of Rs.1507/- per month for preceding three years ending on 30.06.1992 against the respondents.9. So far as the respondents are concerned, they filed three civil suits being O.S. No. 53 of 1993, O.S.No. 69 of 1994 and O.S.No. 71 of 1994 against the appellants in the Court of Principal Subordinate Judge, Kurnool.10. So far as O.S.No.53 of 1993 is concerned, the respondents (plaintiffs) filed a suit against appellant No.1 and State of A.P. for a declaration that respondents are the owners of the suit-land and also they are entitled to claim permanent injunction against the appellants from interfering in their possession over the suit-land. The respondents in substance claimed title over the suit-land by adverse possession against the Government alleging that their predecessor were in possession of the suit-land for the last 100 years and on their death, respondents continued to remain in possession throughout and has, therefore, perfected their title by being in adverse possession to the exclusion of all, including the Government as owners.11. So far as second suit being O.S.No. 69 of 1994 is concerned, it was filed by the respondents against the appellant no.1 and APEB to challenge the notice dated 07.06.1990 issued by APEB for disconnecting the electric supply to thestructure. A relief of permanent injunction restraining the defendants (APEB) from giving effect to the notice was also prayed.12. So far as the third suit being O.S.No. 71 of 1994 is concerned, the respondents filed this suit against the Municipality and the appellant no. 1 challenging therein the assessment made by the Municipality by which appellants names were entered in the register of Municipality in relation to the suit-land/structure. According to the respondents, they having perfected their title over the suit-land by adverse possession, their names should have been entered in place of the appellants names in the records of the Municipality.13. Since all the aforementioned five suits were in relation to one suit-land and were between the same parties pending in different courts, all the five civil suits were clubbed together for disposal in accordance with law. Parties adduced common evidence in all the five civil suits.14. By a common judgment and decree dated 22.04.1997, the learned trial judge dismissed three civil suits being O.S.Nos. 53 of 1993, 69 of 1994 and 71 of 1994 filed by the respondents, whereas decreed thetwo civil suits being O.S.Nos. 77 of 1994 and 65 of 1995. It was held that respondents in their suits failed to establish their title over the suit-land. It was held that since they failed to establish their title over the suit-land, a fortiori, they are not entitled to claim permanent injunction against the appellants over the suit-land. So far astwo civil suits are concerned, it was held that appellants were able to establish the relationship of landlord and tenant between appellant No.1 and the respondent and hence they are entitled to claim the eviction of the respondents from the suit-land. It was also held that appellants are also entitled to claim the money by way of damages from the respondents for the period in question for the use and occupation of the suit-land as claimed in the suit.15. The respondents felt aggrieved, filed five appeals being S.A. No 56 of 1997, 57 of 1997, 58 of 1997, 59 of 1997 and 60 of 1997 before the II Additional District Judge, Kurnool. By five separate judgments dated 15.10.1998, the first appellate court dismissed all the five appeals and affirmed the judgment and decree of the trial judge.16. Felt aggrieved, the respondents filed five Second appeals before the High Court. The High Court admitted the appeals and by impugned order allowed the appeals and while setting aside the two courts judgment/decree remanded the cases to the trial court for fresh trial on merits by permitting the parties to amend the pleadings, to frame additional issues and to adduce the evidence. The concluding para of the High Court reads asthe light of the respective stands taken by the parties, without expressing any further opinion relating to the other aspects, this Court is inclined to set aside the Decrees and common judgment made by the Court of first instance and also the Decrees and judgments made by the appellate Court and remand these matters to the Court of first instance to record the evidence of P.W.4 in toto and also to permit the parties to let in further evidence relating to the identity of the property especially in the light of the admissions made by D.W.1 and record further findings if necessary permitting the parties to amend their respective pleadings and also setting additional issues as well and further permitting the parties to it in further evidence on such additional pleadings and additional issues as well which may arise for consideration in the peculiar facts and circumstances of the case.Felt aggrieved, the appellants who are plaintiffs in their two civil suits and defendants in three civil suits filed by the respondents herein have filed these appeals by special leave.

Reasoning:
In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that thesuit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on nosay the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer ine High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to thatis a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trialrespondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointedalso find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members offamily was of nothese circumstances, the alleged gift whether executed between the two members offamily or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 ofthe light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.