Ramesh Chand Soni And Others vs Jodh Singh And Others

Tarlok Singh Chauhan, J

Aggrieved by the order, dated 25.3.2022 passed by the learned first appellate court, whereby it set aside the judgment and decree passed by the learned trial court and remanded the matter to the learned trial court, the plaintiffs/appellants have filed the instant appeal.

2 It is not in dispute that the learned trial court had appointed the Local Commissioner and after submission of the report had called upon the parties to file their objections.

3 The defendants/respondents filed objections, but neither requested nor prayed for an opportunity to lead evidence in support of the same, yet the learned first appellate court set aside the judgment and decree passed by the learned trial court solely on the ground that the learned trial court was bound to afford opportunity to the respondents to prove their objections.

4 In support of its reasoning, the learned first appellate court has placed reliance upon the judgment rendered by this court in Gopal Dass & ors. vs. Bismanchali 2009 (2) Shim.LC 250 and concluded that it was mandatory to allow the objectors to prove their objections by leading evidence.

5 To say the least, reasoning, as recorded by the learned first appellate court, is clearly erroneous. It is for the objector/party to request the court for leading evidence in support of its objections and in case no request is made, then it is not at all obligation of the court to still call upon the objector to prove the objections by leading evidence. This is not even the ratio laid down in Gopal Dass’s case (supra).

6 That apart, granting sufficient opportunity and not claiming opportunity are two different things. Granting sufficient opportunity would arise only when a party seeks the opportunity. However, once the party does not seek any opportunity, then obviously, as observed above, the Court is under no obligation to still call upon the objector to lead evidence in support of its objections. Therefore, the impugned order passed by the learned first appellate court is not at all sustainable in the eyes of law.

7 In view of aforesaid discussions, I find merit in the instant appeal and the same is accordingly allowed. Consequently, the impugned order passed by the learned first appellate court is quashed and set aside and the matter is remanded back to the learned first appellate court with a direction to decide it afresh in accordance with law.

8 However, before parting it needs to be observed that this Court has not at all gone into the relative merits of the case of either of the parties and the learned first appellate court shall proceed to decide the case, strictly in accordance with law, completely dis-associated and un- influenced by the observations that have been made in this judgment.

9 The parties through their authorized representatives to appear before the learned first appellate court on 23.9.2022.

10 Pending application(s), if any, also stands disposed of.