NALLABELLI SESHAIAH Vs. VEMULLA APPASWAMY

JUDGEMENT

(1.) This civil miscellaneous appeal is filed under Order XL1II Rule l(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.l to 4, marked Exs.A1 to A18, Exs.Bl to B19, Exs.Cl to C8 and Exs.Xl to X16 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 IA.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.