JUDGMENT
P.S. Narayana, J.
1. Heard Ms. Annapuma Devi, learned Counsel representing the appellant and Sri Guna Ranjan, learned Counsel representing the respondents.
2. This civil miscellaneous appeal is filed as against an order of remand made in AS No. 141 of 1997 on the file of II Additional District Judge, Eluru, West Godavari District, dated 16-7-2002.
3. Ms. Annapurna Devi, learned Counsel representing the appellant had pointed out to the relevant portions of the findings recorded by the appellate Court and would comment that the main ground on which the remand was made is that the Report of the Commissioner was not filed before the Court of first instance. The learned Counsel would point out that this is not a correct finding since on a perusal of paragraph 18 of the judgment of the Court of first instance it is clear that the Report of the Commissioner, in fact, was filed and certain findings had been recorded in relation thereto. The Counsel also would maintain that the order of remand cannot be made in such a fashion and in a casual manner and even otherwise the other ground that proper opportunity also had not been given, and in the facts and circumstances it is not a sustainable ground. She further contended that the only attempt which is being made by the respondents is to fill up the lacunae which cannot be permitted. The Counsel placed strong reliance on the decision reported in Boppa Siva Basavayya v. Indukuri Venkataramaraju 1967 An. WR 392.
4. Per contra, Sri Guna Ranjan, learned Counsel for the respondents would submit that apart from the ground that the Report of the Commissioner had not been filed before the trial Court, certain other findings had been recorded relating to non-giving of proper opportunity and hence in the light of the findings recorded in the former portion of the remand order at paragraph 13, the order of remand need not be disturbed by this Court.
5. Heard the learned Counsel.
6. The civil miscellaneous appeal is filed as against an order of remand made in AS No. 141 of 1997 as aforesaid. The appellant herein as plaintiff in the suit OS No. 263 of 1990 on the file of I Additional District Munsif, Eluru, praying for the relief of permanent injunction restraining the defendants, their men, followers, agents and henchmen from in anyway interfering with the peaceful possession and enjoyment of the plaint schedule property and for costs. On the respective pleadings of the parties, having been settled the issues, the Court of first instance recorded the evidence of PWs.1 and 2 and also DWs.1 and 2, marked Exs.A1 to A4 and Exs.B1 and B2 and ultimately decreed the suit with costs.
7. It may be pertinent to have a glance at the relevant portion of the judgment of the Court of first at paragraph 18, wherein it was stated as follows:
On a perusal of the Court Commissioner’s Report, it can be seen that in the presence of Commissioner the entire schedule land was measured and it is mentioned in Commissioner’s Report that as per the sale deed of the defendant the way if shown to the extent of six yards, but as per the F.M.B. Record it was shown as 28 links, and therefore, there is difference of one link on the boundary line of R.S. No. 16/6 and 16/7. So, it appears that as per Commissioner’s Report, there is a difference of one link on the boundary line between the Rs. No. 16/6 and 16/7. As per the contention of the defendants, that previously he got measured the land through Mandal Surveyor, but those measurements were not filed. Further, now the picture is clear as per the Commissioner’s Report that there is difference of one link between the properties of plaintiff and defendant. Further, as per the Commissioner’s Report the plaintiffs house basement of the south-western corner was touched to the boundary line of Rs. 16/6 and 16/7, but there is no encroachment of four feet by plaintiff into defendant’s land as alleged by the defendant. Therefore, the contention of the defendant is not accepted.
8. The appellate Court framed the following points for determination at paragraph 11:
1. Whether the plaintiff/respondent is entitled for permanent injunction as prayed for?
2. To what relief the parties are entitled?
9. No doubt while answering point No. 1 at paragraph 13 in the former portion of the order of remand, certain aspects had been referred to, but surprisingly in the latter portion the learned Judge observed as hereunder:
In this case admittedly the learned Commissioner had not filed his report before trial Court. Now at this stage the appellants/defendants filed petition for appointment of Commissioner. Further as admittedly the learned Advocate-Commissioner had not filed his report in the trial Court and as defendants have no opportunity to put forth their case in the trial Court as prayed by the learned Counsel for the appellants/defendants, I feel it is a fit case to remand the matter to the trial Court directing the trial Court to dispose of the matter after giving opportunity to both sides and dispose of the matter on merits. This point is decided accordingly.
10. It is needless to say that an order of remand normally not to be made in such a casual fashion unless and until the conditions specified under relevant provisions of the Code of Civil Procedure are satisfied. Strong reliance has been placed in this regard in Boppana Siva Basavayya’s case (supra). On a careful reading of the findings which had been recorded by the Court of first instance and the reasons which had been recorded by the appellate Court while making the order of remand, this Court is satisfied that the order of remand is totally unjustified and the same cannot be sustained.
11. Accordingly the order of remand is hereby set aside and the civil miscellaneous appeal is allowed. (It is needless to say that in the light of this order, the appeal AS No. 141 of 1997 to be heard and decided on merits in the light of the respective contentions of the parties afresh. No costs.