THE APPELLATE COURT SHOULD NOT REMAND A CASE MERELY BECAUSE IT CONSIDERED THAT THE REASONING OF THE LOWER COURT IN SOME RESPECTS WAS WRONG.

JUDGMENT

Subba Reddy Satti, J. - Defendant in suit O.S. No. 652 of 2011 filed the present civil miscellaneous appeal under Order XLIII Rule 1(U) r/w. Section 105 of CPC.

2. Parties to this judgment are referred as per their array in the plaint.

3. This Civil Miscellaneous Appeal is filed against the judgment and decree dated 15.07.2021 in A.S. No. 44 of 2017 on the file of X Additional District Judge, Tirupati in allowing the appeal and remanding the matter to the trial Court.

4. On 08.12.2021 this Court ordered notices to respondents 2 and 3 and also permitted the learned counsel for appellant to take out personal notice. In compliance, learned counsel for appellant filed proof of service, vide USR No. 308 of 2022 dated 04.01.2022 along with memo with an endorsement 'refused'. In view of the postal endorsement notice was duly served on respondents 2 and 3. In spite of service of notice, none appeared on behalf of respondents 2 and 3.

5. The case of the plaintiff, in brief, is that originally, the plaint schedule property belonged to forefather of Asambee, W/o Junnu Sahib; that said Asambee was in exclusive possession and enjoyment of the schedule property; that there was thatched house and vacant site in the schedule property; that Asambee mortgaged the schedule property to one Dese Reddigari Sayamma under a registered mortgage deed dated 11.04.1962; that she died in the year 1964; that Asambee's only daughter A. Rajabee succeeded to the property and got discharged the mortgage on 04.01.1965; that Rajabee died in the year 1989 and her husband Munwaar Saheb predeceased her; that the plaintiff is the only surviving son, succeeded to the property of Rajabee; that the house was in dilapidated condition and hence, it was demolished and the schedule property is vacant since 2005; that defendant is nothing to do with the schedule property and as he is working in the office of M.R.O., Pakala, is trying to alienate the schedule property; that the plaintiff got issued a legal notice dated 03.09.2011; that the defendant got issued reply notice dated 09.09.2011 with false averments and since the defendant disputed the title, suit is filed for declaration and for consequential injunction.

6. Defendant filed written statement and contended inter alia that she is the daughter-in-law of Mehurunnisa; that said Mehurunnisa died on 24.05.1998 leaving behind the defendant and her two sons as her legal heirs; that originally the plaint schedule property was the joint family property Mohammad Khasim and Mohammad Akbar; that Mohammad Khasim and M. Mehurunnisa, W/o Mohammad Akbar divided the family properties under a registered partition deed dated 07.03.1990; that defendant's mother-in-law Mehurunnisa was allotted B schedule property; that during the life time of Mehurunnisa, she also applied for construction of residential house in the site allotted to her; that the plaintiff has no right, title or possession over the plaint schedule property and eventually prayed the Court to dismiss the suit.

7. Basing on the above pleadings, the trial Court framed the following issues:

(1) Whether the plaintiff is entitled for declaration as absolute owner of the plaint schedule property?

(2) Whether the plaintiff has been in possession and enjoyment of the plaint schedule property as on the date of filing of the suit?

(3) Whether the plaintiff has made any attempt to alienate the plaint schedule property?

(4) Whether the plaintiff is entitled for grant of permanent injunction in respect of plaint schedule property or not?

(5) To what relief?

8. On behalf of plaintiff, plaintiff examined himself as P.W. 1 and got examined P.Ws. 2 to 4. Exs. A-1 to A-7 was marked. Exs. C-1 to C-3 was marked through P.W. 4. On behalf of defendant, defendant examined herself as D.W. 1 and got examined D.Ws. 2 to 4. Exs. B-1 to B-7 was marked.

9. Trial Court by judgment and decree dated 17.01.2017 decreed the suit declaring the right of the plaintiff over the plaint schedule property and also gr