JUDGMENT:

The Plaintiff filed suit against the defendants for declaration of right and title over plaint A and B Schedule properties, for recovery of possession, mandatory injunction, removal of the structures made in Schedule-A and Schedule B properties and the compound wall constructed around Schedule A & B properties and for consequential relief of permanent injunction restraining the defendants and their men from over interfering with and disturbing in any way from the peaceful and lawful possession over the plaint B Schedule properties and for cost of the suit.

2. The detailed facts of the suit averments are not necessary for dispose of the Civil Miscellaneous Appeal. The Trial Court has framed the following issues:

1. Whether the plaintiff is entitled for declaration of right and title over the A and B schedule properties by virtue of sale deed dated 15.07.2008?

2. Whether the plaintiff is entitle for recovery of possession from the defendants in respect of A & B Schedule properties?

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

4. Whether the plaintiff is entitled to grant mandatory injunction directing the defendants to remove the unlawful construction made in A & B Schedule properties?

3. After considering the evidences adduced by both the parties, the trial court negative all the issues and eventually dismissed the suit filed by the plaintiff. Aggrieved by the said judgment and decree dated 12.12.2014 in O.S. No.58 of 2009 passed by the Junior Civil Judge, Tadipatri, the Plaintiff filed the appeal before lower appellate court. It was numbered as Appeal Suit No. 1 of 2015. The Lower Appellate Court by an order dated 11.08.2015 has remanded the matter to the trail court.

4. Aggrieved by the said judgment and decree dated 11.08.2015, the 2nd defendant who is appellant herein has preferred the present Appeal under Order 43, Rule 1(u) of CPC.

5. The lower appellate court has framed similar issues as framed by the trial court after adjudication has remanded the matter back to the trial court observing that “the evidence brought on record by both the parties before the trial court is not sufficient to decide the controversy between both parties and they have not taken any steps to send the available public records to prove their respective versions. The plaintiff omitted to add necessary parties. In order to give finality to the litigation the court thought that it is just and necessary to set aside the decree and judgment of trial court dated 12.12.2014 and remitted the matter back to the trial court with a direction to permit the plaintiff to implead other legal heirs as parties to the Suit and to permit both the parties to adduce further evidence on their behalf in respect of all the issues and to dispose of the matter afresh.

6. The appellant herein who is defendant no.2 in the suit would contend that the lower appellate court can remand the matter under Order XLI Rule 23A finally, where the court from whose decree an appeal is preferred has omitted to frame an issue or fail to determine any question of fact which appears to the appellate court essentially to the right decision of the suit upon the merit and the appellate court if necessary frame an issue and refer the same to the trial court from whose decree, the appeal is preferred.

7. When appellate court found that the evidence upon the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree, the appeal is preferred.

8. The appellate court cannot remand this matter for receiving additional documents under Order 41 Rule 27. The lower appellate court has to undertake the same.

9. The appellate Court can permit to produce additional evidence, whether oral or documentary if appellate court found that the trial court has refused to admit evidence which ought to have been admi