TANGATUR SAMBAIAH AND OTHERS Vs. VADLA SUBBARAYACHARI

JUDGEMENT

(1.) This is a defendants' appeal under order XLIII, rule 1(u) C.P.C. and is directed against the order of the lower Appellate Court, reversing the order dated 3-12-1956 of the Court of the District Munsif of Proddatur, by which the plaint was returned for presentation to the proper court, and remanding the suit for disposal according to law. Upon a preliminary objection taken by the respondent-plaintiff that the appeal does not lie, the appellants have applied in C.M.P. No. 7583 of 1960 under section 151 C.P.C. to convert the appeal into Civil Revision Petition.

(2.) It is conceded by Sri A. Bhujangarao, the learned counsel for the appellants, that the appeal does not lie, as observed by the Division Bench, which made the order of reference in Atchayya v. Sri Seetharamachandrarao, I.L.R. 39 Mad. 195 (F.B.) @ 196. The reason is that the order of remand in a case like the present is not one made under Order XLI rule 23. The appeal to the lower appellate court was brought under Order XLIII rule 1 (a), in respect of which a second appeal is barred by section 104(2) C.P.C. However, in order to determine in the C.M.P. whether for the ends of justice this court ought to exercise its re-visional powers under Section 115 C.P.C., it is necessary to go into the merits.

(3.) The suit relates to seven items of lands, situate in the village of Korrapadu in Proddatur taluk. It is common ground that they are enfranchised carpenter service inams. The plaintiff's case is that they fell to the share of one Venkataramudu who was the plaintiff's father's mother's brother and stood registered after Venkatramudu's death about 50 years ago, they successively devolved on the plaintiff's father and on the plaintiff, who have been performing the service and enjoying the lands. It is further alleged in the plaint that on account of enmity defendants 1 and 2 brought into existence a sale deed dated 8-1-1952, conveying the lands to the 4th defendant, who is the 3rd defendant's son-in-law and that about two months prior to 27-2-1952, defendants 3 and 4 trespassed upon and took possession of the lands of the sale deed.