MUNICIPAL CORPORATION, HYDERABAD versus SUNDER SINGH

4. Devi Singh died. Thereafter, his heirs and legal repre- sentatives were brought on record. Admittedly, no amendment had been sought for pursuant to or in furtherance of the obser- vations made by the Court. Parties, however, adduced addi- tional oral and documentary evidence.

5. The suit was again decreed in favour of the respon- dents. Thereagainst, an appeal was preferred which was marked as C.C.C.A. No. 112 of 1975. By reason of a judgment and order dated 20.7.1979, the said appeal was allowed. No A further appeal was preferred thereagainst. It, therefore, attained finality between the parties.

6. Respondents herein, however, on or about 3.6.1991 filed 0.S. No. 573 of 1991 for title and possession of the prop- erty, the description whereof is as under: "SCHEDULE OF PROPERTY All that the pfoperty ad measuring· sq. yards situated at Jumerath Bazar, Hyderabad and is bounded by c North : Plaintiffs property and Main Road (cement); South : Remaining property of the plaintiff; . E East : Nalla and Plaintiffs property; West : Remaining property of plaintiff.

7. A decree was prayed for grant of a permanent injunc- tion and a direction upon the respondent – Corporation to ren- der accounts for the amounts realized by wrongful auction. Ad- mittedly, an interlocul<-:-',' ..,nnlication was filed therein for ad- !tucing secondary evidence of documents purported to have been marked in the said O.S. No. 7of1959. The said application was dismissed. By ~judgment and order dated 24.4.1998, the said suit was dismissed. An appeal was preferred thereagainst which by reason of the impugned F order dated 8.4.2004 has been allowed and as noticed herein- before, remitted to the trial court ..

8. Mr. L N. Rao, learned Senior Counsel appearing on behalf of the appellant would submit that keeping in view the earlier round of litigation the findings of the fact arrived therein G must be held to have attained finality and thus the High Court has committed a grave error in setting aside the judgment of the learned trial judge and remanding the matter back to it. It was urged that in the earlier round of the litigation not only the question of title but also possession having been gone into in H respect of the self same property, the impugned judgment should MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.B. SINHA, J.] not have been passed.

9. Mr. M.N. Rao, learned Senior Counsel appearing on behalf of the respondent, on the other hand, would contend that having regard to the provisions contained in Order XLI Rule 23 • -of the .Code of Civil Procedure as amended by the State of . Andhra Pradesh as also in view of the fact that the properties are different, the second 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 documen_ts which had been relied upon by the appellant – Car- poration 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 Consti- tution of India. Order XU 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 trial shall, subject all just exceptions, be evidence during the trial after remand." 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 in 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 Appellant Court may''."

10. Order XLI 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 is- C sue. Only when a decree is to be reversed in appeal, the appel- late court considers it necessary, remand the case in the inter- est of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.

11. It is now well settled that before invoking the said pro- 0 vision, the conditions precedent laid down therein must be sat- isfied. It is further well settled that the court should loathe to ex- ercise its power in terms of Order XLI 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 E 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.

12. The issues which were framed by the trial court are as F under: "1. Whether plaintiff has got title to the suit property? 2. Whether plaintiff is entitled to recover possession of the property shown in green colour of the plaint rough sketch? 3. Whether the defendant is liable to render accounts? 4. Whether plaintiff is entitled for injunction in respect of the vacant site of 2790 square yards? i y MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.B. SINHA, J.] 5. Whether the suit is not maintainable? 6. To what relief?"

13. The High Court noticEd the contentions of the respon- dent that the trial court ought not to have rejected the interlocu- tory application for adduction of secondary evidence. It was con- tended that a second suit was filed only because despite liberty granted by the Supreme Court, the plaint was not amended. Even therefore, the scope of amendment was limited. No new case was to be made out. 14; The High Court framed the following question for its C consideration, namely, as to whether it is just and proper to look into ·the merits of the case in the· absence ofsecondary evi- . dence sought to be adduced by the plaintiff. · · While upholding the contentions of the appellant that it was D 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 G declaration of the title in respect of the ltein No.1 of the plaint schedule of properties and for recovery of the possession of mesne profits. It is stated that item No.1 of the suit land was covered by the Jumerath Bazar and Devi Singh has lost the title in respect of 1250 square yards as held in the earlier litigation filed for injunction. The title of the Devi Singh in respect of the other property was not at all decided in the earlier suit and it is the case of the plaintiff that uiless Exs.8-1 to 8-80 and Exs. X-1 to X-4 7 documents which are printed book filed before the Supreme Court are received as secondary evidence, it will amount to deprive the valuable right of the plaintiff to lead secondary evidence to substantiate his contention in the plaint. The trial court having rejected the request of the plaintiff to lead secondary evidence, held that barring c exhibits filed in the suit, the plaintiff did not file any documentary evidence either with regard to his possession or with regard to any part of the suit schedule property or about his possession in 1940 or delivery of possession by th$') M.C.11 as contended by him and the judgment in CCCA No.112 of 1975 has become final. The Trial Court further held that the piaintiff has not filed a scrap of paper to establish his possession in respect of item 'A' ~ … of schedule property of 2790 square yards." It was furthermore opined: "The documents sought to be filed cannot be marked by this Court in view of the disputed facts and the said documents have to be marked by way of adducing secondary evidence, which will subject to the objections and cross-examination by the defendant. Therefore, I am of the opinion that it is a case to remand to trial Court. It is just and proper for the trial Court to consider the request of the plaintiff to receive the secondary evidence in accordance with law. Therefore, it is just and proper to mark the documents. relied on by both the parties in the earlier suit and consider the same. which were already "considered by this Court in CCCA No.112 of 1975. If authenticity of any of the documents in the book prepared by the Supreme Court is doubted, it is always open for the defendant to take an objection and also confront the said document to the witness of the plaintiff. MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.B. SINHA, J.] I am of the view that an opportunity should have been given to the plaintiff and the plaintiff cannot-be thrown out from giving an opportunity in the peculiar facts and circumstances 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 evide11ce in respect of the documents sought to be filed by them." With respect, the approach of the High Court was not cor- rect. 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 ques- tions which fell for consideration of the Division Bench was as 0 to whether as regards t_hE;! identity of the land acquired by the City Improvement Board and to determine whether Ohan 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 E 1915, Ohan 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 comp(;:!nsation such large extent of property as well. The abst!nce of s1Jch a cla_im is a strong probability that he was not owning any land in excess of 125 (sic for 1250) sq. yards, for which compensation was provided and paid to him. Ohan Singh made a claim for some plot bearing No.5945/D adjacent to the slaughter house under Ex.D-10. He would appear to have also filed a plan· along with the petition but the identity of that plenary is left obscure. There is no evidence in identification as to how the claim made under Ex.D-10 was but however claimed that Ohan Singh made an admission even then that the plot bearing No.5945/D was also within the prohibited areas." 16. The standard of proof applicable in a civil suit is the preponderance of probability. The question had been deter- mined having regard to the fact that the predecessor-in-interest of the respondent confined its case only to 1250 square yards of land. The effect of the judgment of the earlier suit has been B taken note of. The High Court furthermore noticed the conten- tion that Ohan Singh should have been paid compensation for the entire 2750 square yards of land, but the fact remains that they had never claimed any compensation for any land beyond -1 1250 square yards and in the said factual backdrop, it was held: c "We have carefully analysed the evidence regarding possession which consists of both documentary and oral evidence. These documents relate to the period 1928 to 1954. Ex.D/7 of the year 1928 gives indication that the Sarfekhas was collecting some rents on the Jumerath Bazar area and the City Improvement Board was requesting the Sarfekhas Authorities to hand over all such rents collected by them, and they have also informed the Sarfekhas that the property belonged to the City Improvement Board. In the year 1929, some merchants in hide sand skins would appear to have been using portion of the land on the bank of the river Musi for conducting their trade." Upon considering the entire documentary evidence, it was held: y "The Sarfekhas was evidently proceeding on the basis that the suit property was part of Kivan Jung and the City Improvement Board was claiming that all rents realized from Zumerath Bazar should be credited to the accounts of the Board. It is no doubt true that in Ex.X-1 reference is made that the Chowda Bazarath was handed over to the Municipality in the year 1946, but it looks to us that the suit property would not have been a part of this Chowda Bazar for two reasons. The first reason is that it was specifically mentioned as a separate item when the contract was given MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.B. SINHA, J.] 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.)<J1 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 c 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 D agreement between the Corporation and the Sarfekhas authorities, th~ Corporation has not been paying any amount ever since the amount came into existence. That would indicate that the agreement was not acted upon by the Corporation so far as at least the suit property is concerned. In the nature of things when the title of the property belonged to the Corporation after it was handed over to its management by the City Improvement Board, the suit property would not have been mentioned in the agreement referred to by the plaintiffs. The oral evidence discloses that the original agreement is with the Sarfekhas authorities to produce the records. The original agreement is with the sarfekhas. It was the plaintiff that summoned the sarfekhas authorities to produce the records. The original agreement available with the sarfekhas has not been produced. No adverse inference can therefore, be G drawn against the Municipality that it has no title to the property or that it recognized the title of sarfekhas to the property. We have earlier stated that the plaintiff did not claim title to the property through the Sarfekhas and that even the sarfekhas authorities, who claimed title to the property as forming part of the Kivan Jung, have given up their claim by about the year 1949." The Division Bench furthermore took into consideration the fact that the acquisition took place long time back and thus some papers might have been lost or removed and the absence thereof in the file could not throw any suspicion on the authentic- ity of the vesting which took place during those years. The Divi- sion Bench concluded its judgment, stating: "We have earlier given reasons that it was the corporation c that was in possession of the property and no.Devi Singh was making efforts to come into pqssession of the property by making false assertion that he was the owner of the property and that his property was extending upto the police station challenging the east. The circumstances remains to that though he filed the original sale deed Ex.P.12, he has not produced the plan attached thereto in this suit. We are not satisfied that the said plan continued to remain in • .. possession of the Serfekhas authorities before whom he would appear to have produced it. When he is having the custody of Ex.P.12 original, the llormal presumption is that he would also be having custody of the plan which formed part of Ex.P.12. The suit for injunction was filed by Devi Singh shortly after the proceedings under Sec.107 Cr.P.C. initiated against him ended in his favour and it is common ground that ever since he filed 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 rtot bind the Corporation in any manner. It is true that the corporation MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.B. SINHA, J.] 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 ref~rred to in extenso the C earlier judgment of the High Court to arrive at the following find- ing: "After discussing the various aspects it was held that in • 1915 Ohan Singh did not make other claim except in respect of 1250 sq. yds. relating to the lands bearing Nos.5943 and 5944 in respect of compensation. This will probablise that if really he was owning any greater extent of property, he could have claimed compensa'tion for the larger extent of property as well. The absence of the such a claim is a strong probability that he was not owning any E lands in excess of 1250 sq. yds. for which compensation was provided and paid to him. Though Ohan Singh made a claim for some plot bearing No.5945/D adjacent to the slaughter-house; he made an admission that the said plot was also within the prohibited area. It was further held that the fact remains even if Ohan Singh had any title to the plot bearing No.5945/D it became extent (sic) when it was acquired by City Improvement Boaid in about the year 1920. Ohan Singh made claim stating that the extent involved in his property Nos.5943 and 5944 was 2750 sq. yds. and not 1250 sq.yds. and that the compensation court was not correct in deducting the amounts towards nuzul.~ It f.urthermore held that the property covered by Exh. A-8 was only 1250 square yards and · othing more and the claim of H . A the plaintiffs in the said suits with regard to 5410 square yards -1 appeared to be highly improbable. It was furthermore stated: "If Ohan Singh who was claiming under Ex.AB previously only 2750 sq.yds. in property Nos.5943 and 5944 as against 1250 sq.yds. fixed by the compensation court and when the claim of 2750 sq. yards was disallowed confining his right to 1250 sq. yds. was acquired by City Improvement Board and compensation was paid to Devi Singh, the father of the plaintiffs is not in dispute." c The learned trial court furthermore considered the evidence of the plaintiff who examined himself as PW.2 stating: "According to him suit property is 5410 sq. yds. out of which the black colour area admeasures 2790 sq. yards which is in his possession and the green colour portion was forcibly occupied by the Municipality. The red colour portion also belongs to him. He admitted about previous litigation and the decree passed in O.S. 7/59 and the same being set aside under Ex.B-1 by the High Court. According to him Nizam Government took away his property 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 respon- dents who were substituted in place of Devi Singh had not amended the plaint in the previous suit, it was held that the evi- dence 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 XU Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order H XU Rule 23 was therefore not available. On what basis, the MUNICIPAL CORPORATION, HYDERABAD v. SUNDER SINGH [S.8. SINHA, J.] secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce second- ary 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 ar- rived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI Rule 23 of the Code. An order of remand cannot be passed on ipse dixit of the c court. The provisions of Order 11 Rule 2 of the Code of Civil Pro- cedure as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court 0 in Dadu Oaya/u Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas & anr.(Civil Appeal No. 3495 of 2008) disposed of on 12.5.2008. 21. We are, therefore, of the opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remanded back to the High Court for consider- ation of the appeal on merits. The appeal is allowed with the aforesaid directions. In the facts and circumstances of the case, however, there shall be no order as to costs. B.8.8. Appeal allowed.