Pradip Pitambar Patil vs Sitaram Gulabchand Agrawal

A.I.S. Cheema, J.—Admit. Heard the matter finally, by consent of the learned counsel appearing for the parties.

The Appellants are aggrieved and dissatisfied by the Judgment and order dated 15th July, 2013 passed by the District Judge3, Jalgaon, remanding the matter back to the trial Court for adjudication of Regular Civil Suit No. 29 of 1978 afresh. The Judgment was passed by the District Judge in Regular Civil Appeal No. 99 of 2007.

One Gulabchand Daulatram Agrawal brought Regular Civil Suit No. 29 of 1978 against Pitambar Undru Patil and original Defendant Nos. 2 and 3. On death of Pitambar Patil, his legal heirs were brought on record. On death of Gulabchand Agrawal, his legal heir Sitaram Gulabchand Agrawal came on record to pursue the Suit.

The Suit was brought for removal of encroachment. Original Plaintiff claimed that C.T.S. No. 3281 at Bhusawal was his property purchased in the year 1975 and on the west there was C.T.S. No. 3277 belonging to original Defendant No. 1 purchased on 24th June, 1971. It was claimed that original Defendant No. 1 encroached on property of original Plaintiff to the extent of 25ft. (East West) X 10ft. (North South). Original Defendant Nos. 2 and 3 were arrayed as tenants of original Defendant No. 1. Thus, the suit was brought for removal of encroachment.

The trial Court found that the original Plaintiff had failed to prove encroachment as claimed, as no authentic person from city survey office was examined and the encroachment as claimed, was not identifiable. The trial Court also found that on death of original Plaintiff Gulabchand, only Sitaram, son of original Plaintiff has been brought on record and his four brothers and mother were not brought on record and so the suit was bad for non-joinder of necessary parties. The suit came to be dismissed.

Against the dismissal of suit, Plaintiff Sitaram filed the Regular Civil Appeal No. 99 of 2007. The first appellate Court in its Judgment dated 15th July, 2013, went through the record of the trial Court and found that Roznama dated 31st August, 1987 showed that Exhibit 42 was letter sent to city survey office wherein original Plaintiff and original Defendant were informed to remain present on the site but they remained absent for the measurement by the Court Commissioner and hence the Commissioner could not do anything as directed by the Court. The trial Court passed order on Exhibit 41 directing original Plaintiff to deposit Rs. 100/- as commission fee and matter was further adjourned for depositing the fees. The original Plaintiff deposited commission fee on 8th September, 1987 and commission order was issued vide Exhibit 43 on 17th September, 1987. The report of Commissioner was awaited till 21st January, 1989 and suit was fixed for awaiting report of Commissioner. It was noticed by the first appellate Court that record did not show that the Commissioner''s report was received or any report or map was filed. Thus, it was observed that it could not be understood as to on what basis the trial Court observed that the original Plaintiff ought to have examined authentic person of city survey office. The first appellate Court referred to Judgment in the matter of Ramchandra Bhikaji Jagtap vs. Budharam Langruji Padvekar, 2004(1) B.C.J. 101 and found that it was not appropriate for the trial Court to proceed to decide the suit without getting the Commissioner''s report. Taking overall view of the matter, the first appellate Court set aside the Judgment and decree and remanded the suit with the direction to the trial Court to get fresh commission fee deposited from Plaintiff and call Commissioner''s report and adjudicate the dispute between the parties expeditiously, the suit being of 1977.

The present Appeal is filed by original Defendant Nos. 1(b) and 1(c), taking exception to the above Judgment. It is claimed that the first appellate Court committed error in remanding back the suit. The remand order cannot be passed to permit the parties to make good the lapses left in the trial. The burden to prove encroachment was on original Plaintiff and original Plaintiff had failed to prove his case and the matter should not have been remanded. Before the first appellate Court, application to lead additional evidence under Order XLI Rule 27 of the CPC was filed as it was learnt that the original Plaintiff had sold the suit property, but the said application was not dealt with by the first appellate Court.

It has been argued by Shri. Gamot, learned counsel for the Appellants that all the legal heirs of deceased Gulabchand, the original Plaintiff, had not been brought on record and suit suffered from nonjoinder of necessary parties. It is submitted that during pendency of the suit, the original Plaintiff has sold the property and thus the original Plaintiff could not have maintained the suit. Application was moved in this regard, but the first appellate Court did not consider the same. The learned counsel also submitted that the original Defendant No. 1 had purchased the property with construction and there was no encroachment. The learned counsel wants the Judgment of the first appellate Court to be set aside.

Shri. Bora, learned counsel appearing for Respondent No. 1 (original Plaintiff) submitted that although the Commissioner''s fee was deposited, without waiting for Commissioner''s report, the trial Court disposed the suit and the first appellate Court rightly remanded the matter. He has referred to the following reported Judgments:

(i) Haryana Waqf Board Vs. Shanti Sarup and Others,

(ii) Yeshwant Bhaduji Ghuse Vs. Vithobaji Laxman Ladekar,

(iii) Kolhapuri Bandu Lakade Petitioner Vs. Yallappa Chinappa Lakade, Decd., thru'' Pooja @ Poojari Y. Lakade and Others,

(iv) Sou. Ashatai w/o Vijayrao Warekar and others vs. Champatrao Laxmanrao Kale and another, 2011(0) BCI 275.

It is argued by the learned counsel for Respondent No. 1 that in view of the ratio laid down in the above referred reported Judgments, in order to decide whether or not there has been encroachment between the neighbours, authentic measurement is necessary. It has been further argued that Sitaram is the KARTA of the family after death of original Plaintiff Gulabchand Agrawal and so the suit does not suffer for want of necessary parties, as the KARTA can take care of welfare of the joint family and can maintain a suit for removal of encroachment. The learned counsel submitted that during pendency of the suit, the property has been sold to (1) Sanjay Jangle (2) Shripad Jangle (3) Suryakant Jangle and (4) Jagdish Jangle, on 30th January, 1997. It is his submission that it is responsibility between the original Plaintiff and his purchaser, and it is for the Plaintiff to ensure that his purchaser gets clear title and thus Plaintiff can pursue the suit.

Present Appeal is under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 ("C.P.C." in brief), against order of remand passed by the first appellate Court. In this regard in the matter of Narayanan Vs. Kumaran and Others, it was observed in Para 17, as under:

"17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We, therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate court."

Keeping in view the above observations of the Hon''ble Supreme Court, the challenge can be allowed to be confined and limited to see whether or not the order of remand was appropriate.

It is clear that the trial Court dismissed the suit mainly on the ground that there was no authentic map and no documentary or oral evidence was available regarding the alleged encroached portion. It is clear that the trial Court did not consider its own record whether report of Commissioner which was called has been received. It was necessary to insist on compliance of orders of the Court calling the Commissioner''s report. Learned counsel for Respondent No. 1 has rightly relied on the Judgments referred above, especially the Judgment in the matter of Haryana Waqf Board vs. Shanti Sarup and others. In that matter the trial Court had rejected application under Order 26 Rule 9 of C.P.C. It was noticed that only controversy between the parties was regarding demarcation of suit land because the land of Respondent was adjacent to the suit land and the application for demarcation filed before the trial Court was wrongly rejected. In that matter, High Court had summarily dismissed the second appeal. The Hon''ble Supreme Court observed that the High Court ought to have considered, whether in view of the nature of dispute and in the facts of the said case, local Commissioner should be appointed for the purpose of demarcation in respect of the suit land. Consequently, the Judgment and decree passed in second appeal was set aside by the Hon''ble Supreme Court and the second appeal was restored.

It is apparent that in matter like present one, unless Plaintiff has already obtained authentic report of demarcation from revenue authorities like City Surveyor or Cadastral Surveyor, it is appropriate for the Court to direct investigation by appointing local expert commissioner as provided under Order XXVI Rule 9 of the C.P.C.

For such reasons no defect can be found with the Judgment of the first appellate Court. Looking to the facts of the present matter, it was the appropriate course adopted by the first appellate Court.

16.(a). The first appellate Court while setting aside the Judgment and decree of the trial Court, does not appear to have gone into the aspect regarding finding of the trial Court regarding nonjoinder of necessary parties. The Judgment does not show if arguments were advanced on this point. Thus, no finding by the first appellate Court in this regard is available.

(b). The learned counsel for Appellants pointed out copy of application which was filed before the first appellate Court on 15th July, 2013 to claim that Plaintiff had sold his property. This was the day on which the Judgment of Regular Civil Appeal No. 99 of 2007 was passed. Copy of the application shows that the first appellate Court endorsed on the application that the appeal has already been disposed of and hence the application was being filed.

(c). As the earlier Judgment and decree of the trial Court has been already set aside, the parties are at liberty to raise these disputes before the trial Court.

For such reasons, no interference in the impugned Judgment of the appellate Court is called for. Hence I pass following order:

O R D E R

(A). This Appeal from Order No. 89 of 2013 is dismissed. The parties to bear their own costs.

(B). Civil Application No. 10749 of 2013 does not survive and it is also disposed of.