1 APHC010210532023 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3329] TUESDAY,THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA CIVIL MISCELLANEOUS APPEAL NO: 418/2023 Between: 1. MACHIREDDY RAMA MOHAN REDDY, S/O. VENKATA RAMANA REDDY, AGED 60 YEARS, VARAKAVIPUDI VILLAGE, T P GUDUR MANDAL, SPSR NELLORE DISTRICT. ...APPELLANT AND 1. VENATI SWARAJYALAKSHMI, W/o. Rami Reddy, Aged 67 years, Varakavipudi Village, T P Gudur Mandal, SPSR Nellore District. ...RESPONDENT Appeal Under Section_____against orders appellant herein begs to present this Memorandum of Civil Miscellaneous Judgment and Decree dated 17-10-2022 A.S.NO. 84 of 2019 on the file of Principal District Judge, Nellore, against the Judgment and Decree dated 08-10-26 in 0.S No. 178 of 2009 on the file 1St Additional Senior Civil Judge, Nellore Counsel for the Appellant: 1. LINGALA HAZARATHAIAH Counsel for the Respondent: 1. PELLETI RAJESH KUMAR 2 HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No.418 of 2023 This Court made the following JUDGMENT: The present C.M.A is filed assailing the judgment and decree passed in A.S.No.84 of 2019, dated 17.10.2022 by the Principal District Judge, Nellore under which the first appellate Court remanded the matter to the Court below. 2. The appellant herein is the 2nd plaintiff and the respondent herein is the defendant in the suit. For the sake of convenience, the parties are hereinafter referred to as they are arrayed in the original suit. 3. The brief facts of the case are that the 1st plaintiff purchased the plaint schedule property on 13.05.1991 vide document No.211/1991, registered at SRO, Muthukur for a consideration of Rs.10,100/- from Vellapalem Ramana Reddy and his wife Seshamma. 4. The 1st plaintiff became 90 years old and 2nd plaintiff is his grandson through his elder daughter. While so, on 31.01.2009 the 1st plaintiff has intended to execute a registered title deed in respect 3 of plaint schedule property in favour of the minor children of his grandson (2nd plaintiff) keeping him as guardian and presented the same for registration and registration of the same was refused on the ground that the plaint schedule property was already alienated by the plaintiff and on that he became stunned and obtained the photocopy of sale deed and he applied EC and it shows that the plaintiff acquired the plaint schedule property but when the defendant obtained a deed of sale or an agreement of sale in respect of plaint schedule property were not revealed. 5. Plaintiff never executed any document creating any right or interest in favour of any third party especially on 07.10.2000, whereas the Tahsildar, TP Gudur Mandal has no authority to condone the delay online application under Section 4 of A.P. R.R in Land and pattadar passbook Act, 1971 without issuing any notice to the plaintiff and without any enquiry under Section 5(a). All the proceedings in relation to the registration of the sale deed on 29.01.2009 by SRO, Muthukur on the intimation of Tahsildar Registration proceedings in Form 13(a), (b) and (c) and the said Act, which are inequitable, improper and illegal. 6. As the 1st plaintiff is shown as party to the sale deed or sale agreement dated 07.10.2000 as if it was executed by the plaintiff in 4 favour of D1, he is competent to seek for decree for cancellation, since it was fraudulently brought into existence and channelized under Section 5A of Act. The Tahsildar, without following the principles of natural justice by violating Section-4 and 5A and under Section 37 and without following Section 37 of AP Court Fee and Suit Valuation Act and without following Section 37 of Specific Relief Act issued such proceedings. The plaintiff applied for certified copy of document and on that it was informed that, ROR sale deeds, public copies cannot be granted. Hence the suit. . 7. The case of the appellant/2nd plaintiff is that the suit is filed for cancellation of ROR Sale Document registered on 29.01.2009 at the instance of Thasildar, T.P. Gudur Mandal in Sub-Registrar’s Office, Muthukur in favour of the Defendant. The said suit was decreed in favour of the plaintiff in O.S.No.178/2019, dated 08.10.2018 directing for the cancellation of ROR Sale Document registered on 29.01.2009. 8. As per the suit, the plaintiff got marked Ex.A1 to A7 and plaintiff got examined as PW2 and supporting witnesses are examined as PW3 to PW6. As far as defendant is concerned, no document was marked but examined DW1 and DW2. 5 9. The Trial Court after considering the documents marked on behalf of plaintiff i.e., Ex.A1 to A7 and also after considering the evidence put forth by the PWs1 to 6, the suit was decreed. Admittedly the defendant did not choose to mark any document except oral evidence by DWs1 and 2. The parties to the OS are none other than the family members. The 2nd plaintiff is the son of elder daughter of the 1st plaintiff and defendant is younger daughter of the 1st plaintiff. The said suit was assailed by way of appeal by the defendant vide A.S.No.84 of 2019 and the Appellate Court disposed of the said appeal as under: “24. In the result, appeal is partly allowed by partly setting aside the calendar and judgment dated 08.10.2018 in O.S.No.178/2009 on the file of I Additional Senior Civil Judge, Nellore by remanding the suit for fresh disposal after giving opportunity to both the parties to led further evidence and the trial Court is directed to dispose of the suit within three months from the date of receipt of the judgment copy.” 10. Learned counsel for appellant submits that it is not the case of the defendant that any one of the documents filed by her did not mark as documents and the same were not considered by the trial Court. It is not the case of the defendant that even though she submitted list of witnesses other than herself and DW2, the trial Court did not record the evidence of any other witnesses on her behalf. More so, it is not the case of the defendant that she was not provided due opportunity to cross-examine PWs 1 to 6 and also 6 while marking the exhibits A1 to A7. At least there is no pleading by the defendant that the Court below erroneously marked ineligible documents on behalf of plaints even though she took objection to the documents to mark as exhibits. In the absence of any of the pleadings on behalf of defendant the lower Appellate Court instead of deciding the appeal on merits remanding the same without there being any finding with sufficient reasons is erroneous, illegal and arbitrary and contrary to the record and nothing but for unsettling the findings of the trial Court without appreciations on merits. Therefore, in the absence of such pleading on behalf of respondent/defendant, the lower Appellate Court cannot remand the matter for fresh disposal of the suit and for providing opportunity to both parties to adduce evidence afresh is nothing but reopening of the original proceedings which were already completed and decided half a decade ago and which means driving the parties to original situation of the year 2009. Thus he prayed for setting aside the order of remand dated 17.10.2022. 11. Per contra, learned counsel for respondent argued that the appellant herein filed another suit O.S.No.94/2014 on the file of I Additional Civil Judge (Senior Division), Nellore seeking relief for declaration and recovery of possession of plaint schedule property 7 against the respondent herein. Whereas; the appellant herein filed O.S.No.178/2019 against the same subject property and the said suit was dismissed. Assailing the said judgment and decree, appellant herein preferred first appeal before the Appellate Court and the same is pending for consideration before the same Lower Appellate Court. He further submits that since the suit filed by the appellant herein for declaration and recovery of possession basing upon the registered Will dated 10.02.2009 was dismissed, hence it is an admitted fact that the subject property is in possession of the respondent herein. He further argued that the claim of the appellant herein is based upon the Will dated 10.02.2009, which was dismissed itself indicates the appellant/plaintiff is trying to interfere with the rights as well as peaceful possession and enjoyment of the respondent by one way or the other. As such, the order passed in appeal suit dated 17.10.2022 does not warrants any interference of this Court. 12. Heard both the counsel and perused the material on record and judgments of the trial Court in O.S.No.178/2019, dated 08.10.2018 and judgment and decree in O.S.No.94/2014, dated 19.03.2025. 8 13. On perusal of judgment passed in appeal A.S.No.84/2019 it appears that the lower Appellate Court without deciding the appeal on merits and without giving any reasons remanded the matter for trial afresh. Admittedly, no reasons were assigned for remanding the matter to the trial Court for fresh adjudication. On perusal of the entire pleadings by the respondent/defendant that there is neither pleading nor any one of grounds of appeal that the trial Court neither marked the document on her behalf even though she filed nor allowed either to cross-examine the plaintiff or for further cross- examination on her behalf. But argued that even though permission was sought for to cross-examine of the PW.6 but the same was not considered, as such that is reasonable ground for remanding the matter for fresh consideration. But on perusal of the judgment of the trial Court, the appellant/defendant did not choose to cross-examine the PW.6 even though the trial Court provided opportunity to cross- examine PW.6. The said finding of the Appellate Court is certainly contrary to the facts on record. Moreover, there are no pleadings on behalf of appellant/defendant before the appellate Court that it is required to led further evidence or for to cross-examine PW.6, but the First Appellate Court on its own opined that since PW.6 was not examined, as such it came to conclusion that since PW.6 is a crucial 9 witness, PW.6 should be cross-examined and therefore it felt it is appropriate to remand the matter is certainly contrary to the record and finding of the trial Court. Even assuming PW.6 was not examined by the defendant/appellant, the appellate Court can provide the opportunity for cross-examination if really the appellate Court came to conclusion that the defect should be cured. Therefore, to rectify the said unpleaded defect remanding the entire suit to the trial Court for fresh adjudication and directing the parties to original position of the year 2009 is certainly without application of mind and without appreciating the evidence before the Court. It is well settled principle that providing the right of statutory appeal is nothing but continuation of proceedings of original suit. Therefore, it is a statutory domain of the Appellate Court to provide an opportunity if really it finds defect on the part of the trial Court and by permitting the parties to rectify any such defect by summoning witnesses concerned. 14. In the instant case neither there is any plea on behalf of respondent/defendant stating that even though the defendant pleaded for cross-examination of PW.6, but the Court below denied the opportunity of cross-examination of PW.6. 10 15. In view of the reasons stated above, the judgment and decree passed in A.S.No.84/2019, dated 17.10.2022 on the file of Principal District Judge, Nellore is liable to be set aside. 16. Accordingly, the C.M.A is allowed by setting aside the judgment and decree passed in A.S.No.84 of 2019, dated 17.10.2022 by the Principal District Judge, Nellore and the Appellate Court is hereby directed to proceed further on merits by reopen the appeal and dispose of the same as early as possible but not later than one year from the date of reopen of the appeal. However, if any first appeal is filed assailing the order passed in O.S.No.94/2014, dated 19.03.2025 on the file of I Additional Civil Judge (Senior Division), Nellore between the same parties regarding the same suit schedule property, it is appropriate to the Court below to try both appeals together as early as possible but not later than one year. Consequently, miscellaneous petitions, if any, pending in this appeal shall stand closed. _________________________________ VENKATESWARLU NIMMAGADDA, J DT: 23.12.2025 krk 11 HON’BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA C.M.A.No.418 of 2023 DT: 23.12.2025 krk 108