Supreme Court of India
MUNICIPAL CORPORATION, HYDERABADversusSUNDER SINGH
- Citation
- 2008 INSC 723
- Decided
- 16 May 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
Order XLI Rule 23 of the CPC may be invoked only when a decree is passed on a preliminary issue and the appellate court disagrees with the trial court’s findings; it is not applicable to the present suit and an order of remand cannot be passed on ipse dixit.
Summary
The respondent Sunder Singh filed a suit against the Municipal Corporation of Hyderabad seeking a permanent injunction and an order to render accounts for a purported wrongful auction of his property. An interlocutory application to adduce secondary evidence was dismissed and the suit was subsequently dismissed; the appellant appealed. The High Court set aside the dismissal and remanded the case to the trial court, invoking Order XLI Rule 23 of the Code of Civil Procedure. The Supreme Court examined whether such a remand was permissible, holding that Order XLI Rule 23 can be used only when a decree is passed on a preliminary issue and the appellate court disagrees with the trial court’s findings, and that its scope is extremely limited. Since the suit was not decided on a preliminary issue, the High Court’s remand was improper and cannot be based on the court’s mere opinion. The Supreme Court set aside the High Court order and remanded the matter back to the High Court for consideration of the appeal on its merits.
Issues considered
- The applicability of Order XLI Rule 23 of the CPC to remand a case when the decree was not passed on a preliminary issue.
- Whether an appellate court may remand a case on the basis of its own opinion (ipse dixit) without satisfying the conditions precedent under Order XLI Rule 23.
- The proper scope and limits of the appellate court’s power to remand under Order XLI Rule 23 (and 23A).
Legislation cited
- Code of Civil Procedure, 1908s. Order II Rule 2, s. Order XLI Rule 23, s. Order XLI Rule 23A, s. Section 11
- Indian Evidence Act, 1872s. Section 13
Subjects
Order XLI Rule 23remandappellate jurisdictionpreliminary issuesecondary evidenceCivil ProcedureInjunctionMunicipal Corporationproperty dispute
Judgment
_.. (2008] 9 S.C.R. 635
).
MUNICIPAL CORPORATION, HYDERABAD A
v.
SUNDER SINGH
(Civil Appeal No.3627 of 2008)
MAY 16, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.)
~
Code of Civil Procedure. 1908 - Or.41, r. 23 - Remand
by Appellate Court - Scope of - Held: Is extremely limited -
Order of remand cannot be passed on ipse dixit of the Court - c
Or.41, r.23 is invoked when a decree has been passed on a
preliminary issue and the Appellate Court disagrees with the
findings of Trial Court on the said issue - Power thereunder
not to be exercised by Appellate Court only because it finds it
difficult to deal with the entire matter.
D
.' -<i
Respondent filed suit seeking grant of permanent in-
junction in respect of property and a direction upon the
Appellant-Corporation to render accounts for the amounts
realized by wrongful auction of the said property. An in-
terlocutory application was filed therein for adducing sec- E
ondary evidence of documents. The application was dis-
missed. Thereafter, the said suit was also dismissed, ap-
peal whereagainst was filed. The High Court allowed the
y appeal and remanded the matter back to Trial Court. Hence
the present appeal. F
Allowing the appeal and remanding the matter back
to High Court for consideration of the· appeal on merits,
the Court
HELD:1.1. Or. XLI, r.23 of CPC would be applicable G
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 issue. Before invoking the said
provision, the conditions precedent laid down therein
635 H
636 SUPREME COURT REPORTS
A must be satisfied. [Paras 10, 11] [642-8,C,D]
[2008] 9 S.C.R.
~
-
1.2 The Court should loathe to exercise its power in
terms of Or. XLI, r.23, CPC and an order of remand should
.,.
not be passed routinely. It is not to be exercised by the I
k
appellate court only because it finds it difficult to deal with
B 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. [Para ..
11] [642-D,E]
c 1.3. The scope of remand in terms of Or.XLI, r.23 is
extremely limited. In the present case, the suit was not
decided on a preliminary issue. Or. XLI, r.23 was therefore
not available. On what basis, the secondary evidence was
allowed to be led is not clear. The High Court did not set
aside the orders refusing to adduce secondary evidence.
D
Or. XLI. r.23A of CPC 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 arrived at a finding that the i
}~
decree is liable to be reversed. No case has been made
out for invoking the jurisdiction of the Court under Or. XLI,
E r.23 of CPC. An order of remand cannot be passed on ipse
dixit of the Court. [Paras 19, 20] [650-G, 651-A,B,C]
Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram ....
Niwas & anr.(Civil Appeal No. 3495 of 2008) disposed of by
F S.C. on 12-5-2008 - referred to.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3627
of 2008
From the final Judgment and Order daterl 8.4.2004 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
G
C.C.C.A. No. 64 of 1998
.I!!
L.N. Rao, G. Ramakrishna Prasad, Suyodhan Byrapanor. 'y
Siddarth Patnaik and G. Arun for the Appellant.
M.N. Rao, Promila, A. Ramesh and Anshuman for the Re-
H
t
" MUNICIPAL CORPORATION, HYDERABAD v. 637
SUNDER SINGH [S.B. SINHA, J.]
spondents. A
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. This appeal is directed against a judgment and order
dated 8.4.2004 whereby and whereunder the High Court of Ju- B
dicature at Hyderabd set aside the judgment and order dated
24.4.1998 passed by the VII Senior Civil Judge, City Civil Court,
Hyderabad in O.S. No. 573·of 1991 and remanded the matter
back to the learned trial judge.
c
Devi Singh is the predecessoc-in-interest of the respon-
dent. The original disp\jte between the parties centered round
1250 square yards of land purported to be situated in a market
called 'Maidan Bazaar Jamerath' situate at Karvan Aspan ·and
bounded on the east by cancft and police station, on the west by
. --.( 'Bakar Mandi, on the north by cement road, graveyard and huts
D
belonging tO the plaintiff and on the south by land, huts and grave-
yards belonging to the plaintiff. It was said to be the ancestral
property of the plaintiff and was owned by him having been pur-
chased by his ancestors.
E
In the said suit, Devi Singh sought for permanent injunc-
tion restraining the appellant herein from interfering with his
peaceful possession and enjoyment over the said property. The
said property consisted of open land.
The said suit was decreed on or about S.4.1960. An ap- F
peal was preferred thereagainst by the appellant, which by a
judgment and order dated 16.2.1967 was allowed by the High
Court of Andhra Pradesh.
3. Devi Singh preferred an appeal before this Court. The
G
fact of the matter has been discussed in details by this Court in
'(
a judgment reported in Devi Singh v. Municipal Corporation,
Hyderabad [(1973) 4 SCC 66].
From a perusal of the said judgment, it appears, that a
purported claim was made by Ohan Singh over 2750 square H
638 SUPREME COURT REPORTS (2008] 9 S.C.R.
A yards bearing Survey Nos. 5943 and 5944 situated at Karwan
Aspan on the premise that he had filed an application before
the competent authority in the year 1921 stating that the same
had fallen into the prohibited area. Indisputably, the property in-
volved in the said suit had been acquired and compensation
B had been awarded to Ohan Singh for 1250 square yards and
not for the entire plot of the area which is said to be 2750 square
yards. This Court found that the plot for which compensation
had been paid to Ohan Singh for an area of 1250 square yards
was far removed from the Bazaar and there were several other
c plots which intervened. It was furthermore noticed that it was
somewhat difficult on the present state of the record to recon-
cile the case of the defendant Corporation that the entire area
covered by the sale deed had been acquired for which com-
pensation had been paid to Ohan Singh with the relative situa-
D tion of the Bazaar and the plot measuring 1250 square yards. It
was held: . .
15. It is difficult to ignore the entire proceedings before
the Sarfe-Khas and the documentary evidence according
to which possession was given of the land or the property
E including the Bazaar by the Sarfe-Khas to the plaintiff after
a full investigation of his claim in the matter. There was no
allegation that all those proceedings were without
jurisdiction or were collusive although it has now been
suggested before us on behalf of the defendant y
F Corporation that the Sarfe-Khas Department had ceased
to exist in February-1949 by virtue of the Sarfe-Khas Merger
Regulation 1358 Fasli. There is no indication in the orders
of the various authorities including that of the Minister that
the Sarfe-Khas had ceased to have any jurisdiction about
deciding whether the property over which the Sarfe-Khas
G
laid claim was the property of a private individual or was
part of the personal estate of the erstwhile Nizam of
Hyderabad.
16. It has been maintained before us on behalf of the
H plaintiff that the orders made by the Sarfe-Khas were
MUNICIPAL CORPORATION, HYDERABAD v. 639
SUNDER SINGH [S.B. SINHA, J.]
admissible and relevant under Section 13 of the Evide·nce A
Act. These points were not gone into by the courts below
and have still not been decided and we do not wish to
express any opinion on them. The agreements to which
reference has previously been made by us and which were·
not produced by the Corporation before the trial court would B
have also thrown a good deal of light on the points in
controversy. In our judgment this is a fit case in which a
. remand is necessary to the trial court. The trial court shall
decide the matter afresh only on issues relating to title
and possession of the parties with the exception of such c
legal points which have already been disposed of by us.
Both the parties will be at liberty to ask for such
amendments in the pleadings may be strictly necessary
for clarification on the question of title and possession.
But no such pleas will be allowed to be introduced which
D
may change the nature of the case. Fresh evidence can
. ~
also be adduced confined only to these two matters by
both sides. It will be for the trial court to get a complete
investigation made with regard to the various matters
already mentioned by us by a, Commissioner if any of the
parties make an application in that behalf. Both sides E
have expressed willingness to produce _before the trial
court all such documents which are relevant and which are
in existence to enable the court to dispose of the question
of title and possession of both the parties in a satisfactory
manner. F
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-
G
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 H
640 SUPREME COURT REPORTS [2008] 9 S.C.R.
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:
B
"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;
East : Nalla and Plaintiffs property;
West : Remaining property of plaintiff.
D
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
. E
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. 641
SUNDER SINGH [S.B. SINHA, J.]
not have been passed. A
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 8
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. C
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-
0
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 E
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
Y·
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is F
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." G
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", H
642 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
B 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 i
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
G 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?
H
MUNICIPAL CORPORATION, HYDERABAD v. 643
SUNDER SINGH [S.B. SINHA, J.]
5. Whether the suit is not maintainable? A
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- B
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:
E
"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
y without receiving them into evidence." F
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 H
644 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
8 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
D
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:
E "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
F 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
G 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
H document to the witness of the plaintiff.
MUNICIPAL CORPORATION, HYDERABAD v. 645
SUNDER SINGH [S.B. SINHA, J.]
I am of the view that an opportunity should have been A
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 B
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- C
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 F
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 G
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."
H
646 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
D 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
E 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
F
"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
G
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
H
MUNICIPAL CORPORATION, HYDERABAD v. 647
SUNDER SINGH [S.B. SINHA, J.]
to Fateh Mohammad and no reference was made at all to A
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 B
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 E
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 F
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 H
648 SUPREME COURT REPORTS [2008] 9 S.C.R.
A 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
B 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
D
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
E 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
F 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.
G
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
H
MUNICIPAL CORPORATION, HYDERABAD v. 649
SUNDER SINGH [S.B. SINHA, J.]
has proved effectively possession of the property only from A
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 B
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
0
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 F
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. G
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 .
650 SUPREME COURT REPORTS [2008] 9 S.C.R.
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
B 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
D 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
E 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 ,.
F 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.
G
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
XU Rule 23 was therefore not available. On what basis, the
H
MUNICIPAL CORPORATION, HYDERABAD v. 651
SUNDER SINGH [S.8. SINHA, J.]
secondary evidence was allowed to be led is not clear. The High A
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- 8
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 E
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. F
B.8.8. Appeal allowed.
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