Bharatidevi And Others vs Krishnakant And Others

Rohit Arya, J

This miscellaneous appeal by defendants No.1 to 3 under Order 43 rule 1(u) CPC is directed against the order dated 10/10/2017 passed by First Additional District Judge, Alirajpur in civil appeal No.3A/2017 setting aside the judgment and decree dated 13/05/2017 passed in civil suit No.11A/2016 by the trial Court and made wholesale remand for decision afresh to it.

Brief facts necessary for disposal of this appeal are to the effect that the plaintiffs own 0.400 hectare land in village Ramsingh Ki Chowki, Tehsil Alirajpur. Earlier, the suit land was falling in survey No.420/02 area 0.404 hectare but, after settlement in the year 1989-90, it was changed to survey No.601 area 0.400 hectare. Defendants No.1, 2 and 3 are husband, wife & son and owned agricultural land adjacent to that of the plaintiffs land as described in paragraph 2 of the impugned order.

Plaintiffs filed the suit for declaration and injunction inter alia contending that the defendants have encroached upon part of the suit land; 303 feet x 20 feet (34 feet). That apart, without diversion and without approval established a dolomite factory in the name and style of Utsav Mineral in the adjacent area of the plaintiffs. Hence, the instant suit has been filed.

Defendant filed written statement and denied plaint allegations inter alia contending that the defendants have not made any encroachment over the suit land and on the contrary, the plaintiffs under the pretext of instant suit have an ill-intention to encroach upon the government land.

On such pleadings, the trial Court framed issues and allowed parties to lead evidence.

The trial Court found that in support of sale deed (exhibit P/5), kishbandi kathoni (exhibit P/1) and khasra (exhibit P/2) have been filed by the plaintiffs. Plaintiffs title on their own showing was that of survey No.420/2 area 0.404 hectare whereas the plaintiffs have filed the suit claiming title over survey No.601. There is no documentary evidence on record that both the parcels of land are one and the same. Hence, concluded that the plaintiffs failed to prove title to the suit land (Paragraph 7).

The trial Court further held that even otherwise, the commissioner's report suggests that the suit land in survey No.601 was 0.400 hectare whereas the revenue map suggests that survey No.601 has an area of 0.480 hectare. Therefore, if the area in survey No.601 is taken to be 0.400 hectare, there is no encroachment by the defendants. Consequently, found that there is no encroachment buy the defendants (paragraph 11). Accordingly, dismissed the suit.

Being aggrieved by the judgment and decree passed by the trial Court, the plaintiffs have preferred first appeal. Before the lower appellate Court, plaintiffs have filed two applications; one under Order 6 rule 17 CPC and another under Order 41 rule 27 CPC seeking leave of the Court to amend the pleadings to the effect that after settlement in the year 1989-90, the original survey No.420/02 was changed to survey No.601 and sought to file the judgment and decree dated 29/06/2000 passed in previous suit No.67A/1967 between the plaintiffs and the previous bhumi swami which have direct bearing over the controversy involved in the first appeal.

The lower appellate Court has merely reiterated the factual aspects of the case by allowing the applications referred above and concluded that the trial Court has committed an error while answering the issue of title against the plaintiffs (paragraph 12) and framed following questions:

"1. क्या वादीगण के स्वत्व की ग्राम रामसिंह की चैकी की वादग्रस्त भूमि का पुराना सर्वे नंबर 420/2 व मिसल बंदोबस्त बाद नया नंबर 601 है?

क्या वादग्रस्त भूमि शासकीय भूमि है?

क्या प्रकरण में मध्यप्रदेश शासन आवश्यक पक्षकार है? "

Thereafter, made wholesale remand setting aside the judgment and decree passed by the trial Court.

Learned senior counsel, Shri V.K.Jain appearing for the appellants while criticizing the order impugned submits that wholesale remand of the suit is without jurisdiction and in excess of provisions contained under Order 41 rule 23A CPC. Hence, the impugned order is not sustained in the eyes of law.

Per contra, learned counsel for the respondents/plaintiffs has supported the impugned order and prayed for dismissal of appeal.

Heard.

Considered the submissions of learned counsel for the parties.

The scope and nature of jurisdiction conferred on appellate Court under Order XLI Rule 23 and Order XLI Rule 23A CPC are well settled. The ingredients of Order XLI Rule 23A CPC are two fold, firstly; the appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfillment of these two requirements, the provisions of Order XLI Rule 23 CPC can be applied in the matter of remand of the case [Hon'ble Supreme Court in the cases of P.Purushottam Reddy and another Vs. Pratap Steels Ltd., (2002) 2 SCC 686, Municipal Corporation, Hyderabad Vs. Sunder Singh (2008) 8 SCC 485, Rajinder Sharma vs. Arpana Sharma, (2011) 15 SCC 300 & Syeda Rahimunnisa Vs. Malan BI (Dead) by legal representatives and another (2016) 10 SCC 315 and this Court in the cases of Shivdayal Vs. Meenabai and others, 2014(5) MPHT 306 and Murarilal Vs. Ram Kumar Ojha and another, 2015 relied upon].

This Court has carefully perused the judgment and decree passed by the trial Court and the order impugned passed by the lower appellate Court.

The trial Court has framed issues arising out of the pleadings of the parties and addressed on merits thereof.

The lower appellate Court on one hand has concluded that the finding suit land as reiterated in the plaint is same land with the changed survey number [old survey No.420/02 after settlement in the year 1989-90 changed and new survey number is 601] on the basis of material placed on record by way of applications under Order 6 rule 17 CPC and Order 41 rule 27 CPC & allowed them and on the other hand, required the trial Court to answer the said questions (paragraph 12). That apart, the suit is merely for declaration and injunction against the defendants. Once the suit land is found to be the ownership and possession of the plaintiffs, there is no requirement to frame the aforesaid questions.

It appears that the lower appellate Court has ventured in vain exercised the jurisdiction de hors the facts and ordered for remand. In fact, the wholesale remand is unwarranted for the reasons, firstly; the lower appellate Court was required to justify the remand after reversing finding of the trial Court as contemplated under Order 41 rule 23 read with 23A CPC and secondly; the facts on record addressed by the lower appellate Court and concluded do not warrant the remand instead decision on merits, i.e., factum of allegation of encroachment.

Consequently, the appeal is allowed and the impugned order is set aside. This Court has stayed the effect and operation of the impugned order on 13/12/2017. The parties are directed to appear before the lower appellate Court on 21/10/2019. The appellate Court is directed to decide the appeal by affording opportunity to both the parties on merits in accordance with law as expeditiously as possible provided the parties do not seek for unwarranted adjournments.

Before parting with the case, it is considered apposite to observe that the Officer of the rank of Additional District Judge exercising the appellate jurisdiction is required to update and alive of the law as laid down by the Hon'ble Supreme Court and this Court in the context of nature of jurisdiction under Order 41 rule 23 and 23A CPC.