Partly allowed

Bopanna v. Ramakka and 10 Others

Telangana HC17 Aug 2012SA/797/1997

Case brief

AI extract

What is this about?

The Single Judge allowed the second appeal preferred by the third defendant against a remand order of the first appellate court. The Court held that the first appellate court erred in accepting findings from an earlier remand order as final and directed a fresh disposal addressing all issues without relying on the non-final earlier judgments.

What did the court decide?

Second Appeal allowed; matter remanded to the first appellate Court to decide afresh the contentions of both parties and answer all issues involved in the case.

Bopanna Vs Ramakka and 10 Others — Property and Title | Telangana HC (2012)

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HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO

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S.A.No.797 of 1997

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J U D G M E N T:

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The third defendant in O.S.No.41 of 1983 on the file of the Subordinate Judge, Nizamabad, is the appellant herein. The suit was one filed for declaration of title and recovery of possession and the suit was dismissed by the trial Court and as against that judgment, an appeal has been preferred to the Additional District Judge, Nizamabad in A.S.No.41 of 1991 and after hearing the appeal, on 18.12.1995 the matter was remanded to the trial Court to frame necessary issues and decide the case. The order of remand clearly shows that judgment and decree of the lower court are set aside and the matter is remanded for fresh disposal according to law as per the observations of the appellate Court and directions in the judgment after framing necessary issues.

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2. As against that order, A.A.O.No.146 of 1996 was filed and this Court by its order dated 16.07.1996 has allowed the A.A.O and set aside the remand order and directed the first appellate Court to dispose of the appeal after framing two necessary issues by giving an opportunity to both parties to let in oral evidence. Therefore, the learned Additional District Judge by his judgment, which is under appeal, has framed the necessary two issues and did not answer the other contentions, which were point of controversy in the suit. Evidently, as can be seen from the judgment of the first appellate Court, in para no.30, the learned District Judge has taken into consideration the earlier judgment remanding the matter to the lower Court and held that the findings therein have not been challenged and consequently he has accepted them as holding good and allowed the appeal.

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3. As against that judgment, the present second appeal is

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sought to be filed. The second appeal has been admitted on the following substantial questions of law.

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a) Whether the plaintiffs are entitled for declaration of ownership for the

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entire joint family property where the other share holders are also eligible for the same?

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b) Whether the lower appellate Court was justified in deciding only two additional issues framed by it in the present judgment in AS.No.41 of 1991 dated 10.06.1997 and ignoring other six issues framed by the trial Court?

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c) Whether the plaintiff No.1 and 2 to 5 can be declared as legal heirs of Sri P. Venkaiah simply because the name of Sri P.Venkaiah was shown in the school certificates produced by the plaintiff Nos.2 and 5?

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d) Whether in the very evidence of P.W.1 that her husband did not get job at Kamareddy could it be said that he had purchased the house property by himself and became the owner of the property?

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e) Whether the property tax paid by the defendants is not sufficient to show that they are the owners of the property and their names also entered in the mutation register and without the entry in the municipal records whether the plaintiffs can be declared to be the owners of the property?

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f) Whether the evidence of PWs.1 to 5 can be believed without there being any corroborative evidence either oral or documentary to show that the plaintiff No.1 married late Sri P.Venkaiah and the plaintiff Nos.2 to 5 are her children through P. Venkaiah?

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g) Whether the lower appellate Court was right in holding that there was no adverse possession though it is an admitted fact that the defendants are in possession of the property after the death of P. Venkaiah in 1958 and the suit is filed in 1983 i.e. after more than 25 years and whether the defendants have not perfected title by adverse possession?

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4. Evidently, the earlier judgment passed remanding the matter to the lower Court clearly shows that the appeal is allowed and the decree and judgment of the lower Court have been set aside. Thereby any finding by the appellate Court cannot be taken into consideration as finality. Furthermore, when in the appeal against the order of remand, the Court has directed to frame the necessary two issues and directed to decide the matter, the matter has to be considered afresh by the first appellate Court. Therefore, the first appellate Court has erred in holding that the earlier judgment of the first appellate Court was not challenged and the findings in the above judgment have become final, cannot be accepted, as the judgment only remanded the matter for fresh trial.

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5. Therefore, the Second Appeal is allowed and matter is remanded to the first appellate Court to decide afresh the contentions of both parties and answer all the issues involved in the case and none of the findings of the judgment in the earlier order of remand shall be taken as final, as the judgment has not attained finality. The appeal shall be

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disposed of within 3 months from the date of receipt of order. No costs. Miscellaneous petitions, if any, pending in this Second Appeal shall stand closed.

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_________________________________ JUSTICE N.R.L. NAGESWARA RAO

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17.08.2012 Issue CC in two weeks. B/o vjl

Bopanna v. Ramakka and 10 Others

Case brief

What is this about?

What did the court decide?

Bopanna v. Ramakka and 10 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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