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2017 Supreme(AP) 372
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
A. RAMALINGESWARA RAO, J.
Mohd. Ibrahim (died) per LRs Smt. Raheemunissa Begum and another - Appellants
Vs.
Mohd. Abdul Hannan (died) per LRs Sardar Begum and others - Respondents
Civil Miscellaneous Appeal No.1141 of 2006
Decided On : 22-08-2017
For the Appellants : Sri B. Vijaysen Reddy
For the Respondents: Sri K. Mahipathi Rao
Headnote:
Civil Procedure Code –Rule 23 –Land Law -Appellants and learned counsel for the respondents. Civil Miscellaneous Appeal is preferred by the defendants in O.S. on the file. said suit was originally filed by one, who died during the pendency of the appeal and was pursued by the legal representatives, for declaration of title and for perpetual injunction in respect of an extent of 0.23 gts.,. suit was dismissed by judgment and decree and when the plaintiff filed an appeal in A.S. before the learned II Additional District Judge, the same was allowed by judgment and decree by setting aside the judgment and decree in O.S. and remanding the matter to the lower Court for fresh disposal. Challenging the same, the present Civil Miscellaneous Appeal was filed. trial Court framed the following issues for trial: Whether the plaintiff is the owner and is in exclusive possession of the suit schedule lands and entitled to the relief of declaration and permanent injunction as prayed for? Whether the vendor of the plaintiff has got alienable right in the suit schedule lands? Whether the father of defendant is the original purchaser of the suit land through registered sale deed from its original owner and patta was mutated in his name? –Held lower court has not considered properly and the documents filed before this court also has to be considered by the lower court. Therefore, I feel it is just and necessary to allow the appeal by setting aside the judgment of the lower court by allowing the appeal. The lower court shall give fresh decision on issues according to law. The learned counsel for the appellant filed I.A. to receive documents as additional evidence the same is allowed and these documents shall be marked by lower court, as bunch of documents were filed, all these documents to be marked as per law subject to proof and relevance. Therefore the matter is remanded to lower court for fresh disposal according to law and all the documents are certified copies of sale deeds, and after giving an opportunity to both the parties. opinion that the case falls under Rule 23-A of Order 41 CPC and the order of the lower appellate Court can be held to be valid. Accordingly, the Civil Miscellaneous Appeal is dismissed by upholding the order of remand of the lower appellate Court. There shall be no order as to costs. miscellaneous petitions, if any, pending in this Civil Miscellaneous Appeal shall stand closed –Petition is Dismissed.
1. Heard learned counsel for the appellants and learned counsel for the respondents.
2. This Civil Miscellaneous Appeal is preferred by the defendants in O.S.No.226 of 1985 on the file of the District Munsif, Mahaboobnagar. The said suit was originally filed by one Mohd. Abdul Hannan, who died during the pendency of the appeal and was pursued by the legal representatives, for declaration of title and for perpetual injunction in respect of an extent of 0.23 gts., in Survey No.9 and Ac.0.33 gts., in Survey No.10 of Mahaboobnagar village and taluk, Mahaboobnagar district. The suit was dismissed by judgment and decree dated 30.12.1996 and when the plaintiff filed an appeal in A.S.No.78 of 1998 before the learned II Additional District Judge, Mahaboobnagar, the same was allowed by judgment and decree dated 06.12.2006 by setting aside the judgment and decree in O.S.No.226 of 1985 and remanding the matter to the lower Court for fresh disposal. Challenging the same, the present Civil Miscellaneous Appeal was filed.
3. The trial Court framed the following issues for trial:
1. Whether the plaintiff is the owner and is in exclusive possession of the suit schedule lands and entitled to the relief of declaration and permanent injunction as prayed for?
2. Whether the vendor of the plaintiff by name Md. Ismail has got alienable right in the suit schedule lands?
3. Whether the father of defendant is the original purchaser of the suit land through registered sale deed dated 03.03.1953 from its original owner M.A. Wahid, S/o Md. Ismail and patta was mutated in his name?
4. To what relief?
4. The trial Court also framed the following additional issue:
1. Whether the vendor of the plaintiff has perfected the title by virtue of adverse possession in respect of suit lands before the alienation in favour of plaintiff?
5. All the issues were decided against the plaintiff and the suit was dismissed. Before the lower appellate Court an application for additional evidence was filed under Order 41 Rule 27 CPC in I.A.No.57 of 2006 and the same was allowed by condoning the delay in receiving the additional documents. The lower appellate Court held that the appellants explained the circumstances in which they could not produce the relevant documents during the trial stage and it was therefore necessary for the trial Court to consider the same. The lower appellate Court also held that the trial Court erred in not properly considering Exs.A44 to A47 which are important documents. It also observed that the evidence of PW.2, who stated that he was continuing in possession of the suit schedule land continuously without interruption for more than the statutory period and acquired by adverse possession, was not properly considered by the trial Court. Accordingly, it set aside the judgment and decree of the trial Court and remanded the matter to the trial Court.
6. Learned counsel for the appellants submitted that the reasons assigned by the lower appellate Court for remanding the matter are not proper and he relied on the decisions reported in Midakanti Nagabhushana Reddy v. Midakanti Yellaiah 1999 (4) ALD 41, Kummari Jangaiah (died) per LR v. Somavarapu Savithri 2005 (1) ALD 410 and Sannapu Reddy Venkata Reddy v. Jillela Bhupal Reddy 2014 (2) ALD 739.
7. Midakanti Nagabhushana Reddy's case (supra) did not arise out of a case for remand and hence the same is not applicable to the facts of the present case. It was a case of failure of the appellate Court to frame appropriate points for determination and recording its decision thereon.
8. Similarly, the case in Kummari Jangaiah (supra) was a case of consideration of various issues decided by the trial Court under a single point by the appellate Court. It also appears from the said judgment that the appellate Court has not set aside the judgment and decree of the trial Court, but remanded the matter to the trial Court by stating that the reasons assigned by the trial Court were not sound. In those circumstances, the or
