Point of law: Rule 23- A it is evident 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 appeal has been reversed on merits when the question of relief as for consideration, if the appellate court comes to the conclusion that retrial is necessary, than it can remand the case. The approach to reverse the decree merely to order remand is contrary to learn and spirit of Rule 23-AC.P.C

JUDGMENT :

1. This Civil Miscellaneous Appeal is directed against the order in A.S.No.15 of 2014 dated 11.10.2018 of the learned III Additional District Judge, Kadapa at Rajampet. It was in turn preferred against the decree and judgment in O.S.No.81 of 2003 dated 07.01.2012 of the Court of the learned Junior Civil Judge, Rajampet.

2. The defendant is the appellant. The respondent is the plaintiff.

3. The respondent instituted the suit against the appellant for permanent injunction in respect of a small plot of the land shown as ‘ABCD’ in the plaint plan, which is a part of an extent of Ac.0-40 cents comprised in S.No.974/1 and 973-2 of Rajampet Town and Gram Panchayat. This property is shown in the plaint plan as ‘WXYZ’. This plot shown as ‘ABCD’ being in dispute shall be referred hereinafter as ‘the disputed property’, for convenience.

4. The case of the respondent against the appellant in the trial Court was that her husband had succeeded to entire ‘WXYZ’ property in the partition among himself, his father Sri Eswaraiah and his brother Sri Kayala Masthan Mohan Rao, which in turn was purchased along with other extents by Sri Kayala Venkata Subbaiah, father of Sri Eswaraiah, under a registered sale deed dated 27.11.1935. She further claimed that they were in possession and enjoyment of this land as on the date of the suit and a part of the entire property belonging to them in S.No.973/2 and S.No.974/1 was acquired for bypass road by the Government whereupon her husband and his brother received compensation therefor. She further alleged that the appellant without any manner of right encroached upon the disputed property, where he was making attempts to raise constructions, that constrained her to lay the suit. Thus, relief of permanent injunction to restrain the appellant from interfering with her possession and enjoyment of ‘ABCD’ property was sought in this suit.

5. The appellant resisted the claim of the respondent denying her case and mainly contending that he has been in lawful possession and enjoyment of ‘ABCD’ property, which he had acquired under a gift from his junior paternal uncle, which is evidenced by registered deed dated 08.10.2001 and that the respondent highhandedly demolished the pillars raised by him in this property on 19.02.2003 and that again on 05.03.2003 under the guise that she has orders of the Court, with the help of the police and unruly elements, pulled down the walls and structures in this property.

6. He further contended that the sale deed dated 27.11.1935 under which the respondent claiming that grandfather of her husband had purchased this property along with others, did not relate to S.No.973/2 and that it related to the property in S.No.974/1 and 975. He further contended that her uncle Sri Sheik Modin Saheb was the original owner of this property, which was gifted to him under registered gift deed stated above, that it is surrounded by the properties belonging to their relations and that in fact, this property belonged to Government. He further contended that when the revenue authorities through the Mandal Surveyor conducted survey of this land at the instance of the police on her complaint, it revealed that ‘ABCD’ property is in S.No.973/2 and not in any of the S.Nos. claimed by the respondents.

7. Thus, the appellant claimed that he is the absolute owner in possession of this disputed property over which the respondent or her predecessors-in-title did not have any right, title or interest.

8. Basing on the above pleadings, the learned trial Judge settled the following issues for trial:

“1.Whether the plaintiff is in possession over the suit schedule property on the date of filing of the suit?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. To what relief?”

9. At the trial, the respondent examined herself as P.W.1 and relied on Ex.A1 to Ex.A5. The appellant examined himself as D.W.1 and relied on Ex.B1 to Ex.B3 in support of his contention.

10. On the materi