Nand Lal vs Harbans Lal

R.S. Pathak, C.J.—This is a Defendant''s appeal arising out of a suit for possession.

The Plaintiff alleged that the Defendants had encroached upon a portion of the land belonging to him situated in Khasra No. 1445, and therefore, prayed for possession. The Defendants contested the suit on the allegation that the land in dispute belonged to them and their house had stood on it for over 40 years and they had also planted trees there. It was also pleaded that the suit was barred by time. During the proceedings before the trial Court, it was found necessary to appoint a local Commissioner in order to ascertain whether, and if so to what extent, they had encroached upon the land belonging to the Plaintiff. The trial court appointed an Advocate as local Commissioner. The local Commissioner submitted a report in which he expressed the view that a small portion of the land belonging to the Plaintiff had been encroached upon by the Defendants. The trial Court considered the report but did not accept it and held that the Defendants had not encroached upon any land of the Plaintiff. Accordingly, it dismissed the suit. The Plaintiff appealed, and the appeal has been allowed by the learned District Judge, Kangra and the case remanded to the trial Court for a fresh trial. The Defendants have now come in appeal to this Court.

At the outset, learned Counsel for the Plaintiff-Respondent has raised a preliminary objection that the appeal does not lie. He points out that the learned District Judge has specifically remanded the case u/s 151 of the Code of Civil Procedure, and no appeal lies against an order of remand under that provision. It seems to me that the order of remand is properly attributable to Order 41 Rule 23A of the Code. Order 41 Rule 23 covers cases where the appeal is disposed of on a preliminary point and the decree is reversed in appeal, and the appellate court remands the case. Order 41 Rule 23A was enacted by the Punjab High Court and provides:

Rule 23A.--Where the court, from whose decree an appeal is preferred, has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a retrial is considered necessary, the appellate court, shall have the same powers as it has under Rule 23.

This provision has been adopted by the Court of the Judicial Commissioner of Himachal Pradesh. An appeal against an order under Order 41 Rule 23A lies under Order 43 Rule 1(u) as amended by the Punjab High Court and as adopted by the Court of the Judicial Commissioner of Himachal Pradesh. It has been held in Sohan Singh v. Oriental Bank of Commerce AIR 1956 Pun. 2151 that where the appellate court holds that there was no proper trial, in that documents which should have been on the record were not taken and witnesses which should have been examined were not examined and, therefore, additional evidence should be taken so as to be able to arrive at a proper decision, it was held that an order of the appellate court remanding the case would fall under Order 41 Rule 23A. So also, in the present case when the lower appellate court has come to the finding that the report of Shri Kashmira Singh was not correct and that it would have been more appropriate for the trial court to have followed the procedure set out in Chapter 1-M of Vol. I of the rules and orders of the High Court by appointing a Revenue Officer, rather than a member of the Bar, so that the local Commissioner is a person conversant with the measurement rules, and further that the trial court had failed to frame and issue in respect of the plea that the suit was barred by time, the order of remand made by the lower appellate court must be considered as made in the exercise of powers under Order 41 Rule 23A. It is true that the lower appellate court has stated that the remand was being made u/s 151 of the Code. But it is now well settled that resort to the inherent jurisdiction of the court can be had only where the case does not fall under some express provision of the Code. As in the present case, the provisions of Order 41 Rule 23A are clearly attracted, the order must be considered to have been made under that provision. An order made by the court must be attributed to the jurisdiction under which it could be truly made by it even though it purports to exercise some other jurisdiction. In my opinion, the order under appeal must be treated as an order under Order 41 Rule 23A of the Code and therefore, appealable under Order 43 Rule 1(U) of the Code. The preliminary objection is rejected.

On the merits, however, it appears that the appeal has no force. The trial court considered the report of the local Commissioner and did not find it acceptable. The lower appellate court also came to the same conclusion. The lower appellate court has observed that the weaknesses in the report arose probably because the person appointed as local Commissioner was not conversant with the procedure applicable to the demarcation of land in boundary disputes. Accordingly, it found it necessary to direct that some other person should be appointed as local Commissioner who was conversant with those rules, the rules being those contained in Chapter I-M of Vol. I of the rules and orders of the High Court. The lower appellate court has also noted that although the plea of the bar of limitation was taken by the Defendants, no issue was specifically framed by the trial court and, therefore, that was also a matter which remained to be tried. In setting aside the decree of the trial court and remanding the case for fresh trial the lower appellate court, in my opinion, did that only which was necessary and proper.

Accordingly, the appeal fails but in the circumstances there is no order as to costs.