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TMI Blog2008 (5) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... e north by cement road, graveyard and huts belonging to the plaintiff and on the south by land, huts and graveyards belonging to the plaintiff. It was said to be the ancestral property of the plaintiff and was owned by him having been purchased by his ancestors. In the said suit, Devi Singh sought for permanent injunction restraining the appellant herein from interfering with his peaceful possession and enjoyment over the said property. The said property consisted of open land. The said suit was decreed on or about 9.4.1960. An appeal was preferred there against by the appellant, which by a judgment and order dated 16.2.1967 was allowed by the High Court of Andhra Pradesh. 3. Devi Singh preferred an appeal before this Court. The fact of the matter has been discussed in details by this Court in a judgment reported in Devi Singh v. Municipal Corporation, Hyderabad AIR1972SC2510 . From a perusal of the said judgment, it appears, that a purported claim was made by Dhan Singh over 2750 square yards bearing Survey Nos. 5943 and 5944 situated at Karwan Aspan on the premise that he had filed an application before the competent authority in the year 1921 stating that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h only on issues relating to title and possession of the parties with the exception of such legal points which have already been disposed of by us. Both the parties will be at liberty to ask for such amendments in the pleadings may be strictly necessary for clarification on the question of title and possession. But no such pleas will be allowed to be introduced which may change the nature of the case. Fresh evidence can also be adduced confined only to these two matters by both sides. It will be for the trial court to get a complete investigation made with regard to the various matters already mentioned by us by a Commissioner if any of the parties make an application in that behalf. Both sides have expressed willingness to produce before the trial court all such documents which are relevant and which are in existence to enable the court to dispose of the question of title and possession of both the parties in a satisfactory manner. 4. Devi Singh died. Thereafter, his heirs and legal representatives were brought on record. Admittedly, no amendment had been sought for pursuant to or in furtherance of the observations made by the Court. Parties, however, adduced additional oral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond suit was maintainable. It was urged that as some vital documents had been missing, a prayer was made for adduction of secondary evidence in respect of the documents which had been relied upon by the appellant - Corporation in the earlier suit itself. It was pointed out that by an interim order dated 27.8.1998, the appellant - Corporation has been receiving a sum of Rs. 5,000/- per week from the respondent and thus this Court may not exercise its jurisdiction under Article 136 of the Constitution of India. Order XLI Rule 23 of the Code reads thus: 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, which 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 tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of amendment was limited. No new case was to be made out. 14. The High Court framed the following question for its consideration, namely, as to whether it is just and proper to look into the merits of the case in the absence of secondary evidence sought to be adduced by the plaintiff. While upholding the contentions of the appellant that it was not open to the respondent to file a present suit and even if the documents are taken into consideration the same would not create any difference of opinion before the trial court, having regard to the binding nature of the judgment of the High Court, it was held: I am of the opinion that though there is a force in the contention of the learned Counsel for the defendant, but the fact remains that the trial Court also relied on some of the earlier documents mentioned in CCCA No. 112 of 1975 without receiving them into evidence. It was furthermore opined: It is not just and proper to deal with the merits of the case as it may act adversely to the interest of her respective parties. I am of the view that the present suit was filed for declaration of the title in respect of the Item No. 1 of the plaint schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case to lead secondary evidence and therefore, without going into all other questions and without expressing any view on the merits of the case, I am of the view that it is just and proper to remand the matter to permit the plaintiff and also the defendant to lead secondary evidence in respect of the documents sought to be filed by them. With respect, the approach of the High Court was not correct. It for all intent and purport failed to perform its duties. 15. In the earlier round of the litigations, the Division Bench of the High Court arrived at its own conclusion. One of the questions which fell for consideration of the Division Bench was as to whether as regards the identity of the land acquired by the City Improvement Board and to determine whether Dhan Singh had been paid compensation for whatever land he had been possessing, it was held: Ex.D-5 passed by the Compensation Court in the year 1915, Dhan Singh did not make any other claim for compensation. This will probabilise that if really he was owning any greater extent of property, he would have claimed compensation such large extent of property as well. The absence of such a claim is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for two reasons. The first reason is that it was specifically mentioned as a separate item when the contract was given to Fateh Mohammad and no reference was made at all to Jumerath Bazar in the contracts given either to Shaik Dawood or Shaik Yakub Saheb. Secondly Ex.X/1 include the suit property as a separate item under the list of gardens and lands. In the oral evidence, it is no doubt elicited, that this Jumerath Bazar is included as one of the Chowda Bazarath and that these markets was handed over to the Municipality in the year 1946 under the agreement executed between the Sarfekhas and the Corporation. It is argued for the respondents that an adverse reference should be drawn against the Corporation for not producing the agreement. It is also contended that the circumstances would negative the title put forward on behalf of the Corporation. We find no substance in either of these contentions. In Ex. X-1, itself a remark was made that notwithstanding the execution of agreement between the Corporation and the Sarfekhas authorities, the Corporation has not been paying any amount ever since the amount came into existence. That would indicate that the agreement was not acted upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the suit, interim injunction issued in his favour has been in force. Any act of possession after the issue of the said interim injunction will not assist Devi Singh's claim to have been in possession of the property on the date of the suit in any manner. The plaintiffs have not therefore established their title to the property. They have not also proved their possession in the suit property on the date of the suit. The order passed by the Sarfekhas Authorities are invalid and do not bind the Corporation in any manner. It is true that the corporation has proved effectively possession of the property only from the year 1946 but they have established their title to the property. The plaintiffs who have no title to the property cannot get any injunction against the Corporation who is the real owner of the property even if it were to be assumed that the plaintiffs were in possession of the property on the date of the suit. The acts of possession indulged in by the plaintiffs are fugitive in character and do not establish their possession in any manner. 17. The learned trial judge in its judgment and order dated 24.4.1998 in O.S. No. 573 of 1991 referred to in extenso the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty from his ancestrals somewhere in 1940's subsequently the property was released. It is pertinent to mention that he did not file any documents. 18. Noticing that neither the original plaintiff nor the respondents who were substituted in place of Devi Singh had not amended the plaint in the previous suit, it was held that the evidence on either side is very meagre in the said suit. The said suit was held to be barred under Order II Rule 2 stating that the plaintiff ought to have prayed for the declaration in the previous suit itself. 19. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence. 20. Order XLI rule 23A of the Code of civil Procedure is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. The High Court again has not arrived at a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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