1. This appeal is by the defendant in O.S.No.179 of 2008 on the file of the II Additional Senior Civil Judge, Nandyal. The said suit, filed for declaration of title and permanent injunction, was dismissed by the trial Court under its judgment and decree dated 23.07.2012. Aggrieved thereby, the plaintiffs preferred an appeal, being A.S.No.24 of 2012, before the III Additional District Judge, Kurnool at Nandyal. The lower appellate Court has considered the appeal and on finding that the trial Court has not discussed Exs.A1, A2, A7, A12 and A13 and the registered gift deed dated 11.05.1968, the judgment of the trial Court was set aside and the suit was remitted under judgment dated 24.12.2012. Questioning the order of remand, this appeal is preferred by the defendant.

2. Heard Mr. O. Manoher Reddy, learned counsel for the appellant/defendant and Mr. S. Lakshmi Narayana Reddy, learned counsel for the respondents/plaintiffs.

3. As mentioned above, the order of remand by the lower appellate Court is only on the ground that there is no discussion by the trial Court on the aforementioned documents. During the hearing of this appeal, I have seen the judgment of the trial Court and the trial Court has referred to Exs.A1 and A2 in para 36 and Exs.A7 to A17 were noticed in para 54 and further findings are found paras 59 and 60. While it is true that the trial rejected Exs.A1 to A17 for the reasons given by it, it cannot be said that there is no consideration of the said evidence by the trial Court. If the consideration by the trial Court is not approved by the lower appellate Court, since the lower appellate Court has got same powers as that of the trial Court, it is open for the lower appellate Court to deal with the questions of law and fact and come to its own conclusions.

4. The power of remand is regulated under the Civil Procedure Code by Order XLI Rules 23, 23-A and 25. The present order of remand made by the lower appellate Court, however, does not fall under any of the provisions aforesaid. The Supreme Court in P. PURUSHOTTAM REDDY v. PRATAP STEELS (2002) 2 SCC 686)held at para 9 as follows:

“9. The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23A in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 of CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand in as much as the subordinate court can try only such issues as are referred to it for trial and having done so the evidence recorded together with findings and reasons therefore of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order 41 which p