The main legal point established in the judgment is the necessity of the Gram Panchayat as a necessary party in a property dispute and the limited power of the appellate court to examine the legality and correctness of the remand order.

JUDGMENT :

The present Appeal is preferred by the appellant aggrieved by the Decree and Judgment dated 28.11.2016 passed in A.S.No.50 of 2013 on the file of I Additional District Judge, Srikakulam preferred against the decree and judgment dated 05.06.2013 passed in O.S.No.88 of 2008 on the file of Additional Senior Civil Judge, Srikakulam.

2. Heard Sri P.V. Raghu Ram, learned counsel appearing for the appellant and Sri P. Durga Prasad, learned counsel appearing for the respondents.

3. The appellant is the plaintiff No.1 and the respondent No.1 is the defendant and respondent No.2 is the plaintiff No.2 in O.S.No.88 of 2008 on the file of Additional Senior Civil Judge, Srikakulam (for short “the trial Court”).

4. For convenience and clarity, the parties are hereinafter referred to as arrayed in the suit.

5. The plaintiffs No.1 and 2 are the brothers. They have RCC building in Narasannapeta. The defendant constructed a house without obtaining any permission from Gram Panchayat and he violated the rules he did not leave side setbacks to eastern side wall preventing air and light to the plaintiffs house on western side. After knowing the same, the plaintiffs came down to Narasannapeta and requested the defendant not to construct the building without following rules. Then, the plaintiffs approached the Gram Panchayat Officials and informed the matter but in vain. As the Panchayat officials has not taken any action against the defendant, the plaintiffs filed suit for declaration.

6. The defendant filed written statement denying the allegations made in the plaint. He stated that he purchased the vacant site and after obtaining approved plan from the Gram Panchayat, he constructed building. The plaintiffs’ building was Kalyana Mandapam and it is not a residential building. The same was constructed without leaving any gap between their site and the defendant’s site. The defendant already completed 3 slabs by investing huge amounts obtained from the banks. Therefore, prayed to dismiss the suit.

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

1) Whether this Court has no jurisdictions try the suit?

2) Whether the suit is bad for non-joinder of necessary parties?

3) Whether the plaintiff is entitled for declaration as prayed for?

4) Whether the plaintiff is entitled for mandatory injunction as prayed for?

5) To what relief?

8. During course of trial, on behalf of the plaintiffs, the 1st plaintiff was only examined as PW.1 and Exs.A1 and A2 were marked. On behalf of defendant’s, DWs.1 to 3 were examined and Ex.B1 to Ex.B6 were marked.

9. The trial Court upon considering the evidence adduced on either side and on considering the contentions made by both the counsels, decreed the suit with costs. Aggrieved by the same, the defendant/appellant preferred an appeal vide AS No.50 of 2013 on the file of I Additional District Judge, Srikakulam (for short “the first appellate Court”) on ground that the judgment of trial Court is contrary to the law, weight of evidence ad probabilities of the case and that the trial Court miserably failed to appreciate the evidence of DWs.1 to 3 and it also failed to consider that the defendant constructed the building after obtaining Ex.B5 approved plan and he constructed the building a per the norms of said approved plan without any deviation and that the Gram Panchayat, Narasannapeta is necessary party to the suit and the plaintiffs failed to take any steps to implead it as party in the suit. The said appeal was allowed by setting aside the decree and judgment dated 5.6.2013 in O.S No.88 of 2008 of the trial Court and the matter was directed to be remanded back to the said trial Court. Hence, the present appeal came to be filed.

10. Learned counsel for the appellant submits that the first appellate court in ordering remand to the trial Court is contrary to law, weight of evidence and probabilities of case. He further submits that the burden is on the defendant in the suit to prove that he