Remanding the suit for framing an issue that whether the plaintiff has filed a suit with 12 years of her dispossession ? and dispose of the case - Lower appellant committed wrong as there is no need to the plaintiff that her suit is filed within 12 years from the date of dispossession after amendment of Limitation Act 1963 - on other hand the defendant has to prove his possession was perfected by adverse possession - proving of title is enough - High court set aside the remanded order and directed the lower appellat court to dispose the case on merits =
In Md. Mohammad Ali v. Jagadish Kalita3, the Apex Court
pointed out :
"By reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff's claim to establish
his title by adverse possession.
When it is not necessary as per the provisions of the Limitation Act, 1963 for the plaintiff to show that she has filed the suit within twelve years from the date of his dispossession, it is not necessary to decide the issue when the plaintiff was dispossessed from the plaint schedule property.
Therefore, in my
opinion, the lower appellate court erred in remanding the matter to the trial court to frame and decide the issue "when the plaintiff was dispossessed from the plaint schedule property".
When there is no plea of adverse possession raised by the defendants, there is also no need to decide the issue whether the
suit is barred by limitation.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CMA.No.219 of 2013
12-11-2013
Bayyarapu Narayana Raidu, S/o. Gopal Rao,R/o. Warangal District and another...
Appellants
Smt. Pagadala Varalaxmi, W/o. P.L.H. Gopal,R/o.Dilsukhnagar,
Hyderabad....Respondent
<GIST:
>HEAD NOTE:
Counsel for the Appellants: Sri P. Vinayaka Swamy
Counsel for the respondent : Sri M. Papa Reddy
?Cases referred:
1. (2004) 4 SCC 26
2. (2012) 5 SCC 540
3. (2004) 1 SCC 271
4. AIR 2005 SC 4407 at Pg.4412
5. (2004) 10 SCC 779
6. AIR 1999 SC 1125
7. AIR 2002 SC 771
8. (2008) 8 SCC 485
9. 1985 (2) ALT 478
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CMA.No.219 of 2013
JUDGMENT :
This appeal is filed under Order LVIII Rule 1(u) of CPC challenging the
order dt.16.11.2012 in AS.No.120 of 2010 of the II Addl.
District Judge, Warangal, setting aside the judgment and decree dt.21.07.2010 in
OS.No.778 of 2006 of the Prl. Junior Civil Judge, Warangal, and remitting the
matter back to the Trial Court for fresh disposal.
2. The appellants are defendants in the above suit. The said suit was filed
by the respondent/plaintiff for recovery of possession of the plaint schedule
property from the defendants and for costs.
3. The plaintiff contended that she is the absolute owner and possessor of
the plaint schedule property which she had purchased from Smt. K. Shyamalabai
under a registered sale deed Ex.A.1/dt.25.08.1981; that her vendor had purchased
the said property from its original owner Modem Kanakaiah (for short,
'Kanakiah') under a private sale deed Ex.A2/dt.08.03.1973; that on account of
employment of her husband and after his demise, she is staying with her
daughters at Hyderabad; that the defendants who are residing towards the
southern side of the plaint schedule property occupied it by erecting a shed and
a compound wall and this was discovered when the plaintiff and her son-in-law
went to Warangal on 22.02.2006; that when the defendants were questioned, the
defendants claimed that 2nd defendant is the owner of the property. The
plaintiff alleged that taking advantage of her old age and her absence, the
defendants illegally occupied the plaint schedule property and they are liable
to be evicted.
4. The 2nd defendant filed a written statement which was adopted by 1st
defendant. They denied the title and possession of the plaintiff and her
vendor. They contended that that mother of 1st defendant purchased 500 sq.yds
including the plaint schedule property from one I. Komalamma and I. Sakkamma
under Ex.B.2 simple sale deed dt.01.05.1970; that these individuals had
previously purchased it from Kanakaiah on 02.09.1964 under Ex.B1; that 1st
defendant had got 500 sq.yds including the plaint schedule property in a family
partition in 1977; that he constructed a house in the said plot in 1992 and also
a compound wall and residing therein; and that under Ex.B.6 registered Gift
Settlement Deed dt.13.11.2003 and Ex.B7 rectification deed, the 1st defendant
had gifted the plaint schedule property of 228 1/4 sq.yds to his wife, the 2nd
defendant out of love and affection. She also pleaded that she had perfect
title and possession over the plaint schedule property from 1970 and therefore
the suit of the plaintiff is barred by limitation and ought to be dismissed.
5. On the above pleadings, the Trial Court framed the following issues :
"1. Whether the plaintiff got valid title to the schedule property?
2. Whether the plaintiff is entitled for recovery of possession as
prayed for ?
3. To what relief ?"
6. The plaintiff examined PWs.1 to 3 and marked Exs.A1. to A.5. The defendants
examined DWs.1 and 2 and marked Exs.B.1 to B.13.
7. By judgment and decree dt.21.07.2010, the Trial Court dismissed the suit with
costs. It held that the plaintiff did not establish the title and possession of
Kanakaiah from whom her predecessor in title Smt. K. Shyamalabai purchased the
plaint schedule property under Ex.A.2 dt.08.08.1973; that Ex.A.2 appears to be a
created document and not genuine; it is inadmissible in evidence as it is
unregistered; there is no evidence to show that plaintiff was in enjoyment of
the plaint schedule property on the date of filing of the suit; that Ex.A.1 did
not confer any title upon her; plaintiff had admitted that she did not know when
the defendants occupied the plaint schedule property and she ought to have
filed the suit within twelve years from the date of her dispossession. So the
suit is barred by limitation. It also held although Exs.B.1 and B.2 are
unregistered sale deeds, D.1 had paid stamp duty and penalty and they indicate
the possession of mother of the 1st defendant and her vendors. It accepted the
genuineness of these documents on the ground that they were executed more than
thirty years back. It also held that it was incumbent on plaintiff to seek
relief of declaration of title over the plaint schedule property and she could
not have filed a suit only for recovery of possession.
8. Aggrieved thereby, the plaintiff filed AS.No.120 of 2010 before the lower
appellate court.
9. By judgment and decree dt.16.11.2012, the lower appellate court allowed the
appeal, set aside the judgment and decree of the Trial Court and remanded the
matter back to the trial court to consider the issue as to whether the
plaintiff's suit is barred by limitation as she had not filed the suit within
twelve years from the date of her dispossession. It however, held that in a
suit for recovery of possession, it is not invariably necessary to seek
declaration of title over the plaint schedule property when the defendants in
the written statement deny the title of the plaintiff. It also held that since
both plaintiff and defendants trace their title from Kanakaiah, it is not
necessary for the plaintiff to establish the title and possession of Kanakaiah
as on the date of Ex.A.2 and that the said finding of the Trial Court is
contrary to record. Several factual errors committed by the Trial Court were
also pointed out by the lower appellate court. It however observed in para.27
of its judgment as under :
"27. Under these circumstances, as I have pointed out earlier the approach of
the trial court was not at all correct and there were no proper issues framed in
this regard, and the trial court only framed two issues as to whether the
plaintiff has got valid title and whether the plaintiff is entitled for recovery
of possession. There is no issue with regard to the fact as to when the
plaintiff has been dispossessed from the suit property and whether the suit is
barred by limitation as per the Article 64 and 65 of Limitation Act. The
approach of the trial court in the present case is not correct and it proceeded
on the assumptions and presumptions without application of principle of law.
Therefore, for these reasons I allow the appeal and remand the matter to the
trial court to frame fresh issues and allow the parties to the limit extent as
to when the plaintiff has been dispossessed and whether the plaintiff suit is
within limitation or not with reference to Article 64 and 65 of Limitation Act."
10. Aggrieved thereby, this appeal has been filed.
11. The counsel for the appellants/defendants contended that the lower appellate
court ought not to have remitted the matter back to the trial court as it had
found several errors in the judgment of the trial court; that it could have
itself framed the necessary issues, if it felt they should be decided, and ought
to have decided them instead of remitting the matter back to the trial court
since this would further delay the disposal of the suit.
12. The counsel for the respondent/plaintiff argued that the order of the lower
appellate court was the proper order in the facts and circumstances of the case
and it did not warrant any interference by this court.
13. In view of the above contentions, the point which arises for consideration
is :
"Whether in the facts and circumstances of the case, the order of remand by the
lower appellate court to the trial court is sustainable or not ?"
14. In Narayanan Vs. Kumaran and others1, the Supreme Court held that an appeal
under Order 43 Rule 1(u) of C.P.C. should be heard only on the grounds
enumerated in Section 100 C.P.C. and that the appellant in such an appeal is not
entitled to agitate questions of fact. It also held that in an appeal against
an order of remand under this clause, the High Court can and should confine
itself to such facts, conclusions and decisions which have a bearing on the
order of remand and cannot canvass all the findings of fact arrived at by the
lower appellate Court. Similar view has been taken in Jegannathan v. Raju
Sigamani and another2.
15. This being the scope of this appeal, I will now consider whether it was
appropriate for the lower appellate Court to have remitted the matter back to
the trial Court, in the facts and circumstances of the case.
16. In my opinion, the trial court erred in holding that since plaintiff
admitted that she did not know when the defendant allegedly occupied the plaint
schedule property and that as she is seeking recovery of possession basing on
title, she should have filed the suit within twelve years from the date of
dispossession. The lower appellate court also in para 27 extracted supra also
assumed this to be the legal position and that was why it remitted the matter
back to the trial court to decide the issue as to when the plaintiff has been
dispossessed from the plaint schedule property and whether the plaintiff's suit
is barred by limitation under Article 64 or 65 of the Limitation Act, 1963.
17. Both the courts in my opinion, have committed a grave error in not noticing
the change in law brought about by the Limitation Act, 1963 from the earlier
Limitation Act, 1908.
In Md. Mohammad Ali v. Jagadish Kalita3, the Apex Court
pointed out :
"By reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff's claim to establish
his title by adverse possession.
21. For the purpose of proving adverse possession/ouster, the defendant must
also prove animus possidendi."
This has again been reiterated in Saroop Singh v. Banto4. So under the 1908 Act,
the plaintiff not only had to prove his title but also had to prove his
possession within twelve years preceding the date of institution of the suit in
order to recover possession of immovable property. But under the 1963 Act,
there has been a change in law and in a suit attracting Article 64 and 65 of the
said Act, the plaintiff has only to prove his title and it is for the defendant
to prove acquisition of title by adverse possession.
18. It is also pertinent to note that the defendants have pleaded title to the
plaint schedule property by placing reliance on Ex.B.1 and B.2, simple sale
deeds dt.02.09.1964 and 01.05.1970 under which the 1st defendant's mother
acquired title to the plaint schedule property. In para.9 of the written
statement filed by 2nd defendant, it is stated "this defendant submits that the
defendants have acquired the title over the property having perfect title and
possession over the same since 1970 onwards". This does not amount to a plea of
"adverse possession".
19. In fact, having pleaded title, it is not permissible for the defendants to
plead adverse possession as both pleas are mutually inconsistent. In Karnataka
Board of Wakf v. Govt. of India5, the Supreme Court declared :
"A plaintiff filing a title suit should be very clear about the origin of title
over the property. He must specifically plead it. (See S.M. Karim v. Bibi
Sakina1.) In P. Periasami v. P. Periathambi5 this Court ruled that: (SCC p. 527,
para 5)
"Whenever the plea of adverse possession is projected, inherent in the plea is
that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced."
20. When it is not necessary as per the provisions of the Limitation Act, 1963 for the plaintiff to show that she has filed the suit within twelve years from the date of his dispossession, it is not necessary to decide the issue when the plaintiff was dispossessed from the plaint schedule property.
Therefore, in my
opinion, the lower appellate court erred in remanding the matter to the trial court to frame and decide the issue "when the plaintiff was dispossessed from the plaint schedule property".
When there is no plea of adverse possession raised by the defendants, there is also no need to decide the issue whether the
suit is barred by limitation.
21. In view of the legal position, I am of the view that the lower appellate
court ought not to have remanded the matter back to the trial court. It might
as well have itself decided the appeal on merits as it has all the powers of a
trial court to re-appreciate the evidence.
The Supreme Court and our High Court
have also deprecated the practice of remanding matters to the trial court when
the lower appellate court itself could have dealt with and decided the issues.
22. In Ashwinkumar K.Patel Vs. Upendra J.Patel and others6, the Supreme Court
held:
"7. In our view, the High Court should not ordinarily remand a case
under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered
that the reasoning of the lower Court in some respects was wrong. Such remand
orders lead to unnecessary delays and cause prejudice to the parties to the
case. When the material was available before the High Court, it should have
itself decided the appeal one way or other. It could have considered the
various aspects of the case mentioned in the order of the trial Court and
considered whether the order of the trial Court ought to be confirmed or
reversed or modified. It could have easily considered the documents and
affidavits and decided about the prima facie case on the material available. In
matters involving agreements of 1980 (and 1996) on the one hand and an agreement
of 1991 on the other, as in this case, such remand orders would lead to further
delay and uncertainty. We are, therefore, of the view that the remand by the
High Court was not necessary"
23. In P.Purushottam Reddy and another Vs. M/s.Pratap Steels Ltd.,7
the Supreme
Court held that an appellate Court should be circumspect in ordering a remand
when the case is not covered by Rule 23 or Rule 23-A or Rule 25 of C.P.C. and
that an unwarranted order of remand gives the litigation an undeserved lease of
life and must therefore be avoided.
24. In Municipal Corporation, Hyderabad Vs. Sunder Singh8, the Supreme Court,
considered the scope of Order 41 Rule 23 of C.P.C. and declared:
"15. Order 41 Rule 23 of the Code reads thus:
"23. Remand of case by Appellate Court.-Where the Court from whose decree an
appeal is preferred has disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues shall be
tried in the case so remanded, and shall send a copy of its judgment and order
to the Court from whose decree the appeal is preferred, with directions to re-
admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the
original trial shall, subject all just exceptions, be evidence during the trial
after remand."
16. The amendment which is applicable for the State of Andhra Pradesh is same as
that of the State of Madras, which reads as under:
"(a) After the words 'the decree is reversed in appeal', insert the words 'or
where the Appellate Court while reversing or setting aside the decree under
appeal considers it necessary in the interest of justice to remand the case';
and
(b) delete the words 'if it thinks fit', occurring after the words 'the
appellate court may'."
17. Order 41 Rule 23 would be applicable when a decree has been passed on a
preliminary issue. The appellate court must disagree with the findings of the
trial court on the said issue. Only when a decree is to be reversed in appeal,
the appellate court considers it necessary, remand the case in the interest of
justice. It provides for an enabling provision. It confers a discretionary
jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the
conditions precedent laid down therein must be satisfied. It is further well
settled that the court should loathe to exercise its power in terms of Order 41
Rule 23 of the Code of Civil Procedure and an order of remand should not be
passed routinely. It is not to be exercised by the appellate court only because
it finds it difficult to deal with the entire matter. If it does not agree with
the decision of the trial court, it has to come with a proper finding of its
own. The appellate court cannot shirk its duties."
25. In Saraswathi Devi Vs. J.Satyanarayana Raju9, this Court held:
"..... The power under Order XLI Rule 23 of the Code of Civil Procedure is
of wide amplitude and of a discretionary nature, but the discretion should not
be exercised arbitrarily but with circumspection guided by sound and reasonable
judicial principles capable of being corrected by the Court of appeal. It
should not be a substitute for laxity but be stemmed from the need to render
substantial justice. The order of remand should indicate sufficient and cogent
reasons for remitting the matter for re-trial. It is to be remembered that when
re-trial is ordered, it amounts to allowing the party to fill in the lacuna
crept at the trial with eyes wide open to the basis of the pleadings and issues
raised and the trial concluded. So the parties have to bear the consequences
thereof. The order of remand should not, generally speaking, be ordered when
the defect in the proceedings has been made due to the negligence or default on
the part of the defaulting party who will have the advantage of the remand. The
mere fact that the evidence on record is not sufficient to enable a Court to
come to a definite conclusion on an issue or point is not a ground to remit the
matter. It is also to remember that the mere fact that the parties did not have
an opportunity of producing all the evidence they needed before the trial Court,
is not also a relevant circumstance unless the parties are taken by surprise.
There is a danger that the order of remand of the court would cause lurking
apprehension, may be unfounded, in the mind of the court below that there is
something wrong in the judgment and it needed correction. However carefully the
order may be worded, the danger of such an impression cannot easily be erased
from the mind of the court below. The appellate court must therefore be
circumspect in that regard. The appellate Court should consider whether the
party succeeding in the trial Court would be met with undue hardship of further
litigation and expense and also whether injustice would be gone by the order of
remand. Keeping those circumstances in view, though the power of remand is of
wide discretionary one, it should be exercised sparingly and with circumspection
ultimately the ends of justice."(emphasis supplied)
26. For the above reasons, the appeal is allowed and the judgment and decree
dt.16.11.2012 of the lower appellate court setting aside the judgment and decree
dt.21.07.2010 of the trial court and remitting the matter back to the trial
court is set aside; A.S.No.120 of 2010 is restored to the file of the lower
appellate court; and it shall decide the same in accordance with law within a
period of two (2) months from the date of receipt of a copy of this order. No
costs.
27. Miscellaneous applications, pending if any, in this Appeal shall stand
closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date :12- 11-2013
In Md. Mohammad Ali v. Jagadish Kalita3, the Apex Court
pointed out :
"By reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff's claim to establish
his title by adverse possession.
When it is not necessary as per the provisions of the Limitation Act, 1963 for the plaintiff to show that she has filed the suit within twelve years from the date of his dispossession, it is not necessary to decide the issue when the plaintiff was dispossessed from the plaint schedule property.
Therefore, in my
opinion, the lower appellate court erred in remanding the matter to the trial court to frame and decide the issue "when the plaintiff was dispossessed from the plaint schedule property".
When there is no plea of adverse possession raised by the defendants, there is also no need to decide the issue whether the
suit is barred by limitation.
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CMA.No.219 of 2013
12-11-2013
Bayyarapu Narayana Raidu, S/o. Gopal Rao,R/o. Warangal District and another...
Appellants
Smt. Pagadala Varalaxmi, W/o. P.L.H. Gopal,R/o.Dilsukhnagar,
Hyderabad....Respondent
<GIST:
>HEAD NOTE:
Counsel for the Appellants: Sri P. Vinayaka Swamy
Counsel for the respondent : Sri M. Papa Reddy
?Cases referred:
1. (2004) 4 SCC 26
2. (2012) 5 SCC 540
3. (2004) 1 SCC 271
4. AIR 2005 SC 4407 at Pg.4412
5. (2004) 10 SCC 779
6. AIR 1999 SC 1125
7. AIR 2002 SC 771
8. (2008) 8 SCC 485
9. 1985 (2) ALT 478
The Court made the following : [order follows]
THE HON'BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CMA.No.219 of 2013
JUDGMENT :
This appeal is filed under Order LVIII Rule 1(u) of CPC challenging the
order dt.16.11.2012 in AS.No.120 of 2010 of the II Addl.
District Judge, Warangal, setting aside the judgment and decree dt.21.07.2010 in
OS.No.778 of 2006 of the Prl. Junior Civil Judge, Warangal, and remitting the
matter back to the Trial Court for fresh disposal.
2. The appellants are defendants in the above suit. The said suit was filed
by the respondent/plaintiff for recovery of possession of the plaint schedule
property from the defendants and for costs.
3. The plaintiff contended that she is the absolute owner and possessor of
the plaint schedule property which she had purchased from Smt. K. Shyamalabai
under a registered sale deed Ex.A.1/dt.25.08.1981; that her vendor had purchased
the said property from its original owner Modem Kanakaiah (for short,
'Kanakiah') under a private sale deed Ex.A2/dt.08.03.1973; that on account of
employment of her husband and after his demise, she is staying with her
daughters at Hyderabad; that the defendants who are residing towards the
southern side of the plaint schedule property occupied it by erecting a shed and
a compound wall and this was discovered when the plaintiff and her son-in-law
went to Warangal on 22.02.2006; that when the defendants were questioned, the
defendants claimed that 2nd defendant is the owner of the property. The
plaintiff alleged that taking advantage of her old age and her absence, the
defendants illegally occupied the plaint schedule property and they are liable
to be evicted.
4. The 2nd defendant filed a written statement which was adopted by 1st
defendant. They denied the title and possession of the plaintiff and her
vendor. They contended that that mother of 1st defendant purchased 500 sq.yds
including the plaint schedule property from one I. Komalamma and I. Sakkamma
under Ex.B.2 simple sale deed dt.01.05.1970; that these individuals had
previously purchased it from Kanakaiah on 02.09.1964 under Ex.B1; that 1st
defendant had got 500 sq.yds including the plaint schedule property in a family
partition in 1977; that he constructed a house in the said plot in 1992 and also
a compound wall and residing therein; and that under Ex.B.6 registered Gift
Settlement Deed dt.13.11.2003 and Ex.B7 rectification deed, the 1st defendant
had gifted the plaint schedule property of 228 1/4 sq.yds to his wife, the 2nd
defendant out of love and affection. She also pleaded that she had perfect
title and possession over the plaint schedule property from 1970 and therefore
the suit of the plaintiff is barred by limitation and ought to be dismissed.
5. On the above pleadings, the Trial Court framed the following issues :
"1. Whether the plaintiff got valid title to the schedule property?
2. Whether the plaintiff is entitled for recovery of possession as
prayed for ?
3. To what relief ?"
6. The plaintiff examined PWs.1 to 3 and marked Exs.A1. to A.5. The defendants
examined DWs.1 and 2 and marked Exs.B.1 to B.13.
7. By judgment and decree dt.21.07.2010, the Trial Court dismissed the suit with
costs. It held that the plaintiff did not establish the title and possession of
Kanakaiah from whom her predecessor in title Smt. K. Shyamalabai purchased the
plaint schedule property under Ex.A.2 dt.08.08.1973; that Ex.A.2 appears to be a
created document and not genuine; it is inadmissible in evidence as it is
unregistered; there is no evidence to show that plaintiff was in enjoyment of
the plaint schedule property on the date of filing of the suit; that Ex.A.1 did
not confer any title upon her; plaintiff had admitted that she did not know when
the defendants occupied the plaint schedule property and she ought to have
filed the suit within twelve years from the date of her dispossession. So the
suit is barred by limitation. It also held although Exs.B.1 and B.2 are
unregistered sale deeds, D.1 had paid stamp duty and penalty and they indicate
the possession of mother of the 1st defendant and her vendors. It accepted the
genuineness of these documents on the ground that they were executed more than
thirty years back. It also held that it was incumbent on plaintiff to seek
relief of declaration of title over the plaint schedule property and she could
not have filed a suit only for recovery of possession.
8. Aggrieved thereby, the plaintiff filed AS.No.120 of 2010 before the lower
appellate court.
9. By judgment and decree dt.16.11.2012, the lower appellate court allowed the
appeal, set aside the judgment and decree of the Trial Court and remanded the
matter back to the trial court to consider the issue as to whether the
plaintiff's suit is barred by limitation as she had not filed the suit within
twelve years from the date of her dispossession. It however, held that in a
suit for recovery of possession, it is not invariably necessary to seek
declaration of title over the plaint schedule property when the defendants in
the written statement deny the title of the plaintiff. It also held that since
both plaintiff and defendants trace their title from Kanakaiah, it is not
necessary for the plaintiff to establish the title and possession of Kanakaiah
as on the date of Ex.A.2 and that the said finding of the Trial Court is
contrary to record. Several factual errors committed by the Trial Court were
also pointed out by the lower appellate court. It however observed in para.27
of its judgment as under :
"27. Under these circumstances, as I have pointed out earlier the approach of
the trial court was not at all correct and there were no proper issues framed in
this regard, and the trial court only framed two issues as to whether the
plaintiff has got valid title and whether the plaintiff is entitled for recovery
of possession. There is no issue with regard to the fact as to when the
plaintiff has been dispossessed from the suit property and whether the suit is
barred by limitation as per the Article 64 and 65 of Limitation Act. The
approach of the trial court in the present case is not correct and it proceeded
on the assumptions and presumptions without application of principle of law.
Therefore, for these reasons I allow the appeal and remand the matter to the
trial court to frame fresh issues and allow the parties to the limit extent as
to when the plaintiff has been dispossessed and whether the plaintiff suit is
within limitation or not with reference to Article 64 and 65 of Limitation Act."
10. Aggrieved thereby, this appeal has been filed.
11. The counsel for the appellants/defendants contended that the lower appellate
court ought not to have remitted the matter back to the trial court as it had
found several errors in the judgment of the trial court; that it could have
itself framed the necessary issues, if it felt they should be decided, and ought
to have decided them instead of remitting the matter back to the trial court
since this would further delay the disposal of the suit.
12. The counsel for the respondent/plaintiff argued that the order of the lower
appellate court was the proper order in the facts and circumstances of the case
and it did not warrant any interference by this court.
13. In view of the above contentions, the point which arises for consideration
is :
"Whether in the facts and circumstances of the case, the order of remand by the
lower appellate court to the trial court is sustainable or not ?"
14. In Narayanan Vs. Kumaran and others1, the Supreme Court held that an appeal
under Order 43 Rule 1(u) of C.P.C. should be heard only on the grounds
enumerated in Section 100 C.P.C. and that the appellant in such an appeal is not
entitled to agitate questions of fact. It also held that in an appeal against
an order of remand under this clause, the High Court can and should confine
itself to such facts, conclusions and decisions which have a bearing on the
order of remand and cannot canvass all the findings of fact arrived at by the
lower appellate Court. Similar view has been taken in Jegannathan v. Raju
Sigamani and another2.
15. This being the scope of this appeal, I will now consider whether it was
appropriate for the lower appellate Court to have remitted the matter back to
the trial Court, in the facts and circumstances of the case.
16. In my opinion, the trial court erred in holding that since plaintiff
admitted that she did not know when the defendant allegedly occupied the plaint
schedule property and that as she is seeking recovery of possession basing on
title, she should have filed the suit within twelve years from the date of
dispossession. The lower appellate court also in para 27 extracted supra also
assumed this to be the legal position and that was why it remitted the matter
back to the trial court to decide the issue as to when the plaintiff has been
dispossessed from the plaint schedule property and whether the plaintiff's suit
is barred by limitation under Article 64 or 65 of the Limitation Act, 1963.
17. Both the courts in my opinion, have committed a grave error in not noticing
the change in law brought about by the Limitation Act, 1963 from the earlier
Limitation Act, 1908.
In Md. Mohammad Ali v. Jagadish Kalita3, the Apex Court
pointed out :
"By reason of the Limitation Act, 1963 the legal position as was obtaining under
the old Act underwent a change. In a suit governed by Article 65 of the 1963
Limitation Act, the plaintiff will succeed if he proves his title and it would
no longer be necessary for him to prove, unlike in a suit governed by Articles
142 and 144 of the Limitation Act, 1908, that he was in possession within 12
years preceding the filing of the suit. On the contrary, it would be for the
defendant so to prove if he wants to defeat the plaintiff's claim to establish
his title by adverse possession.
21. For the purpose of proving adverse possession/ouster, the defendant must
also prove animus possidendi."
This has again been reiterated in Saroop Singh v. Banto4. So under the 1908 Act,
the plaintiff not only had to prove his title but also had to prove his
possession within twelve years preceding the date of institution of the suit in
order to recover possession of immovable property. But under the 1963 Act,
there has been a change in law and in a suit attracting Article 64 and 65 of the
said Act, the plaintiff has only to prove his title and it is for the defendant
to prove acquisition of title by adverse possession.
18. It is also pertinent to note that the defendants have pleaded title to the
plaint schedule property by placing reliance on Ex.B.1 and B.2, simple sale
deeds dt.02.09.1964 and 01.05.1970 under which the 1st defendant's mother
acquired title to the plaint schedule property. In para.9 of the written
statement filed by 2nd defendant, it is stated "this defendant submits that the
defendants have acquired the title over the property having perfect title and
possession over the same since 1970 onwards". This does not amount to a plea of
"adverse possession".
19. In fact, having pleaded title, it is not permissible for the defendants to
plead adverse possession as both pleas are mutually inconsistent. In Karnataka
Board of Wakf v. Govt. of India5, the Supreme Court declared :
"A plaintiff filing a title suit should be very clear about the origin of title
over the property. He must specifically plead it. (See S.M. Karim v. Bibi
Sakina1.) In P. Periasami v. P. Periathambi5 this Court ruled that: (SCC p. 527,
para 5)
"Whenever the plea of adverse possession is projected, inherent in the plea is
that someone else was the owner of the property."
The pleas on title and adverse possession are mutually inconsistent and the
latter does not begin to operate until the former is renounced."
20. When it is not necessary as per the provisions of the Limitation Act, 1963 for the plaintiff to show that she has filed the suit within twelve years from the date of his dispossession, it is not necessary to decide the issue when the plaintiff was dispossessed from the plaint schedule property.
Therefore, in my
opinion, the lower appellate court erred in remanding the matter to the trial court to frame and decide the issue "when the plaintiff was dispossessed from the plaint schedule property".
When there is no plea of adverse possession raised by the defendants, there is also no need to decide the issue whether the
suit is barred by limitation.
21. In view of the legal position, I am of the view that the lower appellate
court ought not to have remanded the matter back to the trial court. It might
as well have itself decided the appeal on merits as it has all the powers of a
trial court to re-appreciate the evidence.
The Supreme Court and our High Court
have also deprecated the practice of remanding matters to the trial court when
the lower appellate court itself could have dealt with and decided the issues.
22. In Ashwinkumar K.Patel Vs. Upendra J.Patel and others6, the Supreme Court
held:
"7. In our view, the High Court should not ordinarily remand a case
under Order 41, Rule 23, C.P.C. to the lower Court merely because it considered
that the reasoning of the lower Court in some respects was wrong. Such remand
orders lead to unnecessary delays and cause prejudice to the parties to the
case. When the material was available before the High Court, it should have
itself decided the appeal one way or other. It could have considered the
various aspects of the case mentioned in the order of the trial Court and
considered whether the order of the trial Court ought to be confirmed or
reversed or modified. It could have easily considered the documents and
affidavits and decided about the prima facie case on the material available. In
matters involving agreements of 1980 (and 1996) on the one hand and an agreement
of 1991 on the other, as in this case, such remand orders would lead to further
delay and uncertainty. We are, therefore, of the view that the remand by the
High Court was not necessary"
23. In P.Purushottam Reddy and another Vs. M/s.Pratap Steels Ltd.,7
the Supreme
Court held that an appellate Court should be circumspect in ordering a remand
when the case is not covered by Rule 23 or Rule 23-A or Rule 25 of C.P.C. and
that an unwarranted order of remand gives the litigation an undeserved lease of
life and must therefore be avoided.
24. In Municipal Corporation, Hyderabad Vs. Sunder Singh8, the Supreme Court,
considered the scope of Order 41 Rule 23 of C.P.C. and declared:
"15. Order 41 Rule 23 of the Code reads thus:
"23. Remand of case by Appellate Court.-Where the Court from whose decree an
appeal is preferred has disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues shall be
tried in the case so remanded, and shall send a copy of its judgment and order
to the Court from whose decree the appeal is preferred, with directions to re-
admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the
original trial shall, subject all just exceptions, be evidence during the trial
after remand."
16. The amendment which is applicable for the State of Andhra Pradesh is same as
that of the State of Madras, which reads as under:
"(a) After the words 'the decree is reversed in appeal', insert the words 'or
where the Appellate Court while reversing or setting aside the decree under
appeal considers it necessary in the interest of justice to remand the case';
and
(b) delete the words 'if it thinks fit', occurring after the words 'the
appellate court may'."
17. Order 41 Rule 23 would be applicable when a decree has been passed on a
preliminary issue. The appellate court must disagree with the findings of the
trial court on the said issue. Only when a decree is to be reversed in appeal,
the appellate court considers it necessary, remand the case in the interest of
justice. It provides for an enabling provision. It confers a discretionary
jurisdiction on the appellate court.
18. It is now well settled that before invoking the said provision, the
conditions precedent laid down therein must be satisfied. It is further well
settled that the court should loathe to exercise its power in terms of Order 41
Rule 23 of the Code of Civil Procedure and an order of remand should not be
passed routinely. It is not to be exercised by the appellate court only because
it finds it difficult to deal with the entire matter. If it does not agree with
the decision of the trial court, it has to come with a proper finding of its
own. The appellate court cannot shirk its duties."
25. In Saraswathi Devi Vs. J.Satyanarayana Raju9, this Court held:
"..... The power under Order XLI Rule 23 of the Code of Civil Procedure is
of wide amplitude and of a discretionary nature, but the discretion should not
be exercised arbitrarily but with circumspection guided by sound and reasonable
judicial principles capable of being corrected by the Court of appeal. It
should not be a substitute for laxity but be stemmed from the need to render
substantial justice. The order of remand should indicate sufficient and cogent
reasons for remitting the matter for re-trial. It is to be remembered that when
re-trial is ordered, it amounts to allowing the party to fill in the lacuna
crept at the trial with eyes wide open to the basis of the pleadings and issues
raised and the trial concluded. So the parties have to bear the consequences
thereof. The order of remand should not, generally speaking, be ordered when
the defect in the proceedings has been made due to the negligence or default on
the part of the defaulting party who will have the advantage of the remand. The
mere fact that the evidence on record is not sufficient to enable a Court to
come to a definite conclusion on an issue or point is not a ground to remit the
matter. It is also to remember that the mere fact that the parties did not have
an opportunity of producing all the evidence they needed before the trial Court,
is not also a relevant circumstance unless the parties are taken by surprise.
There is a danger that the order of remand of the court would cause lurking
apprehension, may be unfounded, in the mind of the court below that there is
something wrong in the judgment and it needed correction. However carefully the
order may be worded, the danger of such an impression cannot easily be erased
from the mind of the court below. The appellate court must therefore be
circumspect in that regard. The appellate Court should consider whether the
party succeeding in the trial Court would be met with undue hardship of further
litigation and expense and also whether injustice would be gone by the order of
remand. Keeping those circumstances in view, though the power of remand is of
wide discretionary one, it should be exercised sparingly and with circumspection
ultimately the ends of justice."(emphasis supplied)
26. For the above reasons, the appeal is allowed and the judgment and decree
dt.16.11.2012 of the lower appellate court setting aside the judgment and decree
dt.21.07.2010 of the trial court and remitting the matter back to the trial
court is set aside; A.S.No.120 of 2010 is restored to the file of the lower
appellate court; and it shall decide the same in accordance with law within a
period of two (2) months from the date of receipt of a copy of this order. No
costs.
27. Miscellaneous applications, pending if any, in this Appeal shall stand
closed.
___________________________________
JUSTICE M.S. RAMACHANDRA RAO
Date :12- 11-2013
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