JUDGMENT
P.S. Narayana, J.
1. This civil miscellaneous appeal is filed under Order XLIII Rule 1(u) of the Code of Civil Procedure (hereinafter in short referred to as ‘the Code’ for the purpose of convenience) aggrieved by an order of remand made in A.S. No. 9 of 2000, dated 19.8.2006, on the file of Senior Civil Judge, Sathupalli, reversing the decree and judgment made in O.S. No. 146 of 1995, dated 17.7.2000, on the file of Junior Civil Judge, Sathupalli.
2. The suit O.S. No. 146 of 1995 on the file of Junior Civil Judge, Sathupalli, was filed by the plaintiff-respondent herein, praying for the relief of perpetual injunction restraining the defendants, their men, servants and persons claiming through them from in any way interfering with the peaceful possession and enjoyment of the plaintiff over the plaint schedule property. In the light of the respective pleadings of the parties, having settled the issues, the learned Junior Civil Judge, Sathupalli, recorded the evidence of P.Ws.1 to 7, D.Ws.1 to 4, marked Exs.A1 to A18, Exs.B1 to B19, Exs.C1 to C8 and Exs.XI to XI6 and ultimately, dismissed the suit with exemplary costs. Aggrieved by the same, the matter was carried by way of appeal A.S. No. 9 of 2000 on the file of Senior Civil Judge, Sathupalli, and the Appellate Court framed the points for determination at Para 11 and recorded certain findings and came to the conclusion that the Commissioner had not identified the schedule property as per the warrant entrusted to him and further came to the conclusion that the identification of the suit property with reference to survey number and its sub-division would be crucial to arrive at just decision and hence, felt it necessary to remand the matter to the trial Court for identification of the property by re-entrusting the Commissioner’s warrant to the same Commissioner and for disposal of the suit after considering the objections to the Commissioner Report and the examination of the Commissioner. Aggrieved by the order of remand specified above, the present CMA is preferred.
Contentions of Sri A. Ramalingeswara Rao:
3. Sri. A. Ramalingeswara Rao, learned Counsel representing the appellants herein, had taken this Court through the findings recorded by the Court of first instance and also the findings recorded by the appellate Court. The learned Counsel also pointed out that an Advocate Commissioner was appointed in I.A. No. 77 of 1996 and the said Advocate Commissioner was examined as DW.4. The learned Counsel also pointed out that for harvesting the standing crop, no doubt, another Advocate Commissioner was appointed in I.A. No. 503 of 1995. The learned Counsel also pointed out to the relevant findings recorded at paras 20, 34, 41, 42 and 44 as well and would submit that the Court of first instance recorded clear positive findings and these findings are in relation to the factum of possession, which is the crucial question, to be decided in a suit for perpetual injunction. The learned Counsel also further pointed out that in A.S. No. 9 of 2000, the respondent herein, the appellant in the said appeal A.S. No. 9 of 2000, filed I.A. No. 492 of 2001 under Order 26 Rule 9 read with Section 151 of the Code praying for appointment of Commissioner to identify the property.
4. The Counsel also pointed to the relevant portions of the findings recorded by the learned Judge while dismissing the said application I.A. No. 492 of 2001 in A.S. No. 9 of 2000. The learned Counsel also pointed out that not being satisfied with the same, the matter was carried by way of CRP No. 3106 of 2002 and this Court, after recording reasons, dismissed the said CRP. by order dated 15.2.2006. The learned Counsel also while pointing out to certain portions of the orders made in I.A. No. 492 of 2001 in AS. No. 9 of 2000 by appellate Court and also in CRP No. 3106 of 2002, which was dismissed by this Court, would maintain that virtually in a way the direction issued by the appellate Court while making the order of remand is in conflict with the prior orders. Even otherwise, an order of remand cannot be made in a routine way, but only as ordained by the specific provisions of the Code. The learned Counsel placed strong reliance on the decision in Hameed (D) by LRs. v. Kummottummal Kunhi P.P. Amma (D) 2006 (5) ALT 37 (SC).
Contentions of Sri M. Rajamalla Reddy:
5. Sri M. Rqjamalla Reddy, learned Counsel representing the respondent-plaintiff, had placed before this Court the report of the Commissioner and also had taken this Court through the evidence of D.W.4 and would maintain that even if the report of the Commissioner and the evidence of DW4 to be taken into consideration, the object or the purpose for which the Commissioner was appointed had not been satisfied or fulfilled, since the property was not identified and this is exactly the finding, which had been recorded by the appellate Court while making an order of remand.
6. The learned Counsel also pointed out to the findings which had been recorded at paras 12, 13 and 14 and would submit that this is not a case where an order of remand was made only to fill up the lacunae, but something beyond thereto, especially, in light of the report of the Commissioner and the nature of evidence given by the Commissioner as DW.4. The Counsel also explained though an application was moved for appointment of Commissioner before the appellate Court at the best it is an interlocutory order and dismissal of the said application was no doubt confirmed in CRP No. 3106 of 2002, but however, it cannot be said that the said orders would come in the way of the appellate Court in making an order of remand while disposing of the main appeal, since the appeal to be decided on merits and demerits, not being influenced by any of the observations made, if any, in such interlocutory orders.
7. The learned Counsel also had explained the scope and ambit of Order 41 Rule 23-A and Rule 25 of the Code and placed strong reliance on the decision of the Apex Court in Remco Industrial Workers House Building Co-op., Society v. Lakshmeesha, M. .
8. Heard the Counsel on record and perused the findings recorded by the Court of first instance and also the findings recorded by the Appellate Court as well.
9. The points which arise for consideration in the CMA. are as hereunder:
(1) Whether the order of remand made in AS No. 9 of 2000 on the file of Senior Civil Judge, Sathupalli, can be sustained in the facts and circumstances of the case?
(2) If so, to what relief the parties would be entitled to?
Point No. 1:
10. As already specified above, the suit filed by the respondent, plaintiff in OS No. 146 of 1995 was dismissed by the learned Junior Civil Judge, Sathupalli, by the judgment, dated 17.7.2000. At Para 20, the Court of first instance referred to the evidence of DW.4, the learned Advocate-Commissioner, appointed in IA No. 77 of 1996. Further findings had been recorded in relation to the said evidence of DW4 along with the other evidence at Para 34.
11. Be that as it may, the Court of first instance recorded the reasons in detail on appreciation of the evidence of PWs.1 to 7, DWs.1 to 4 and also discussed Exs. Al to A18, Exs.B1 to B19, Exs.C1 to C8, Exs.XI to X16 and came to the conclusion that the relief of perpetual injunction cannot be granted.
12. The appellate Court in A.S. No. 9 of 2000 at Para 11 framed the following points for determination:
1. “Whether the Commissioner has identified the suit property in accordance with the procedure and as directed by the Hon’ble High Court?
2. Whether the Decree and Judgment passed by the Jr. Civil Judge, Sathupalli in OS. No. 146 of 1995 is erroneous and thereby liable to be set aside?
3. To what relief?
13. The case of the respondent herein, the plaintiff, is that the plaintiff is the owner of the plaint schedule property and he has been in possession of the said property and the father of the plaintiff was declared as Pattadar in Hyderabad Tenancy and Agricultural Lands Act on 1.11.1955 and since then, the father and family members have been in possession and enjoyment of the plaint schedule property, and in the family arrangement, the property had fallen to his share. The said averments were denied and specific stand was taken in the written statement that the defendants are in possession of an extent of Ac.4-00 of land in Sy. No. 419 and the Suit Schedule land is the part and parcel of the said land and the land of the family of the plaintiff was within the specified boundaries: East: Land of Vemula Ramulu, South: Penuballi to Gangadevipadu Road, West: Land of B. Sree Ramulu, North: Vagu. Further, specific stand was taken that wrong boundaries had been shown and the extent of land within the suit schedule boundaries would be only an extent of Ac. 1-20 gts., but not Ac.2-00. It was also pleaded that Narasimhaswamy, the brother of the plaintiff, filed OS. No. 59 of 1988 against one Ruben and the said suit was dismissed, and certain further factual details had also been narrated. Inasmuch as, it is only a suit for perpetual injunction, the Court of first instance framed the following issues:
1. Whether the plaintiff is entitled for perpetual injunction?
2. To what relief?
14. The elaborate oral and documentary evidence available on record already had been referred to supra. It appears LA. No. 503 of 1995 was moved for appointment of an Advocate Commissioner for harvesting the standing crop in OS. No. 146 of 1995 and as against the said order, CMA No. 4 of 1997 was filed on the file of Senior Civil Judge, Sathupalli, and as against the said order made, CRP No. 4946 of 1998 had been filed and certain of the observations made in the said CRP by order, dated 27.11.1998, also had been referred to.
15. Be that as it may, on a careful analysis of the stand taken by the respondent herein-appellant-petitioner in LA. No. 492 of 2001 in AS. No. 9 of 2000, it is clear that for the purpose of identification or the location, an application for appointment of Commissioner under Order 26 Rule 9 of the Code was filed. The respective stands taken in the affidavit filed in support of the said application and the counter resisting the said application, being clear and categorical, the same need not be repeated in elaboration. Though it is an interlocutory application moved in the appeal, the learned Judge recorded elaborate reasons referring to certain portions of the evidence recorded by the Code of first instance and also certain findings and negatived the relief. The matter was carried by way of CRP being CRP. No. 3106 of 2002 and the said CRP also was dismissed by order dated 15.2.2006 and the relevant portion of the said order reads as hereunder:
The Commissioner submitted his report and was also examined as DW4. The suit was however dismissed. Aggrieved, the petitioner filed A.S. No. 9 of 2000 and therein LA. No. 492 of 2001 again for appointment of an Advocate Commissioner to identify the location of the suit schedule property in Survey No. 419/23. This application was rejected by the order dated 10.4.2002, impugned in this revision, by the learned Senior Civil Judge, Sathupalli. In an avoidably prolix order, the appellate Court in substance concluded that as an earlier report was still on record, no application for appointment of a Commissioner afresh was warranted and that the report of the Commissioner, his testimony as DW4 could be considered along with the objections of the petitioner/ plaintiff, at the hearing of the appeal and that there was no justification for seeking an appointment of a Commissioner afresh.
16. It is no doubt true that the appellate Court while deciding the appeal, if it is otherwise just and proper and permissible, may come to a conclusion that it is a fit matter for remand despite such interlocutory orders. Strong reliance was placed on the decision of the Apex Court in Remco Industrial Workers House Building Coop., Society’s case (supra), wherein the Apex Court while dealing with Order 41 Rules 25 and 23-A of the Code that the power of the appellate Court to remit or remand the case to the trial Court observed that, where the basic issue was not considered and the dispute was relating to the title and possession of inam land and under Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954, inamdar could be granted occupancy right in respect of land in the inam for which no occupancy right had been granted to tenant and occupancy right in respect of the suit land earlier granted to tenant, but later granted to the inamdar and the suit land was purchased by the plaintiff from inamdar, a suit was filed for declaration of title and recovery of possession of said land and an order granting occupancy right in favour of the tenant produced before the trial Court and was marked without any objection by the plaintiff, though in written statement of defendant, there was no specific reference to the said order, the burden to prove title and possession of the specific land was initially on the plaintiff when the document viz., order granting occupancy right to the tenant was admitted, basic issue of effect of that document on the subsequent grant in favour of the plaintiff and identity of the land under the two grants did arise as a legal issue for consideration. Both trial Court and appellate Court overlooked the said document and had not considered and rendered any decision on that issue, which was vital and just to decide the case, the powers of the appellate Court are not inhibited by the acts or omissions of the parties and it is a fit case where Supreme Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23-A and remit the whole case to trial Court for deciding that specific issue.
17. Further, reliance was placed on Hameed’s case (supra), wherein the Apex Court while dealing with the power of remand to be exercised by the appellate Court under Order 41 Rule 23-A of the Code and the limitations thereof held that in a suit for recovery of possession based on title, which was dismissed by the trial Court holding that defendants were in continuous and uninterrupted possession of suit property and the High Court remitted matter to trial Court for reconsideration and in appeal, while remanding the matter to the trial Court, the High Court had not indicated as to what questions of fact and law that were required to be decided and the circumstances upon which it found itself unable to decide the matter and in spite of sufficient opportunity being given to plaintiffs by trial Court to produce documents showing that they or their predecessors had got title to suit property, no documents were produced. High Court should not have remanded the matter giving liberty to plaintiffs to produce documents in order to fill lacuna in the evidence and accordingly, the impugned order of High Court was set aside and the matter was remanded to High Court for consideration on merits only on materials available on record.
18. As can be seen from the respective stands of the parties and also the nature of evidence, which had been let in by the parties and also in the light of the evidence of DW4, which is already available on record and also Exs.C1 to C8 and further, in the light of the orders made in I.A. No. 492 of 2001 in A.S. No. 9 of 2000 and also in CRP No. 3106 of 2002, this Court is of the considered opinion that the appellate Court is not justified in making an order of remand, and it may be appropriate to have a glance at the relevant portion of the order of the appellate Court while answering point No. 3.
In the result, the appeal is allowed without costs. The Decree and Judgment passed by the Junior Civil Judge, Sathupalli in OS No. 146 of 1995 is hereby set aside. The suit in OS No. 146 of 1995 is remanded to the trial Court for fresh disposal with a direction to re-entrust the warrant to the Commissioner for identification of the suit property with reference to Survey Number and it’s sub-division, to receive objections and to record the evidence of Commissioner, if necessary. Both the parties have to bear the expenses equally for re-entrustment of the warrant to the Commissioner as fixed by the trial Court.
19. In the light of the same, inasmuch as, this is a suit for mere perpetual injunction and in the light of the ample material available on record, the appellate Court instead of making an order of remand on such a ground, could have decided the appeal on merits depending upon the material available on record.
20. Accordingly, the decree and judgment, by virtue of an order of remand made in A.S. No. 9 of 2000 on the file of the Senior Civil Judge, Sathupalli, are hereby set aside.
Point No. 2:
21. In the result, the appellants are bound to succeed and the CMA is hereby allowed. It is needless to say that the appellate Court to decide the appeal on the material available on record in accordance with law at an early date. Inasmuch as, the order of remand is being set aside by this Court, the parties to bear their own costs.