Shmt. Dhapan vs Vijay Singh and others

J.V. Gupta, J.—This order will dispose of S. A. O. Nos. 8 and 11 of 1979, as both of them arise out of the same order

S.A O No. 8 of 1979 has been filed by the Plaintiff appel-lant against the order of the Additional District Judge, Hissar, dated 22nd January, 1979, whereby be set aside the decree of the trial Court decreeing the suit of the Plaintiff and remanded the case for retrial.

Shrimati Dhapan, Plaintiff Appellant filed a suit No. 150(sic) of 1976 on 7th April, 1976(sic) which was decreed on 6th February, 1978. Another suit No. 165 of 976 was filed by the Respondents Vijay Singh etc , on 15th April, 1976. which was dismissed on 30th November, 1977. It is the admitted case that the suit land and the controversy is practically the same in both the suits. Since the suit filed by Shmt. Dhapan was decreed and the other suit was dismissed, Vijay Singh and others, filed two separate appeals in the Court of the Additional District Judge, Hissar. Both the appeals were heard together and afte'' hearing the learned Counsel for the parties, the lower appellate Court set aside the decree in both the suits and remanded the same to the trial Court in terms of Order of Rule 23-A of the Code of Civil Procedure, with the directions that in the suit filed by Shmt Dhapan against vijay Singh and others, the issues as recast would be decided afresh after giving due opportunity to the parties to adduce fresh evidence. Now Shmt. Dhapan has filed these two appeals aga nst the said orders of the learned Additional District Judge, in this Court.

The learned Counsel for the Appellant has vehemently argued that under no circumstances the learned Additional District Judge could set aside the decree passed in favour of the Appellant by the trial Court. At the most, he could send for a report from the trial Court on the additional issues framed by the lower appellate Court. Though, according to the learned Counsel it was also not necessary, in the circumstances of the case, as ail the evidence was already on the record and there was no question of any additional issues to be framed in the case In any case, he maintained that the decree in the suit filed by Vijay Singh etc., could not be set aside under any circumstances

The learned Counsel lor the Respondents has argued that because of the amendment allowed by the trial Court, the whole complexion of the suit was changed. Under these circumstances the lower appellate Court was right in setting aside the decree of the trial Court and for remanding the case for fresh trial. According to the learned Counsel, since in both the suits the controversy was the same, it was in the fitness of circumstances and in the interest of justice that both these suits should have been consolidated and tried together.

After hearing the learned Counsel for the pirties, I am clearly of the opinion that under no circumstances, the decree of the trial Court in both the suits could be set aside by the lower appellate Court Order 41 Rule 23 A of the CPC reads as under:-

Where the Court from whose decree an appeal is preferred 1 c.(sic) disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

That order presupposes that if the decree is reversed in appeal and its retrial is considered necessary, only then the powers as it has under Rule 23 are to be exercised. It does not authorise the Appellate Court to reverse the decree as a matter of course whenever the Court thinks that on some issues retrial is considered to be necessary. In order to reverse a decree, the findings given by the Court on the issues is to be considered and is to be set aside before the decree as such could be reversed in appeal. Without doing the same, there are no powers with the appellate Court to reverse the decree in appeal. Thus, the lower Appellate Court has erred in setting aside the decree passed by the trial Court and remanding the case for fresh trial.

As re ards the question whether any additional issue was required to be framed by the trial Court after the amendment was allowed in the suit filed by Shmt. Dhapan, it is to be seen whether it changes the nature of the suit as such or not. According to the learned Counsel for the Respondents, the earlie suit filed was declaration. In the written statement filed by them, it was specifically pleaded that the suit as such is not maintainable because they are in possession of the suit land. Consequently one of the issues framed was "whether the suit does not lie in the present forms?" In spite of this objection having been taken in the written statement in the first instance, the Plaintiff-Appellant continued with the suit as such and it was at the end of the case that an application for amendment of the plaint was filed on 28th November, 1977, which was allowed on 2nd December, 1977. It may be that the nature of the suit as a whole may not change but if the suit is now for possession instead of for declaration, the Defendants- Respondent are entitled to take the plea of adverse possession, which they could not take earlier. To this argument, the learned Counsel for the Appellant stated that the reipondents only want to delay the proceedings, otherwise all these pleas were taken by them in the suit filed by themselves, i.e. Suit No. 165 of 1976, which was dismissed on 30th November, 1977. It may be so but the conduct of the Plaintiff Shmt, Dhapan has brought about this situation and under the circumstances, the Defendant are entitled to claim an additional issue of adverse possession. It is immaterial at this stage whether they will ultimately succeed or not, but they cannot be denied to take this plea in the amen-ded written statement.

The lower appellate Court has recast the issues, but I do not think, the samae are necessary. The only additional issue which may now be required to be decided is "whether the Defendants in the suit filed by Shmt. Dhapan, have become owners by adverse possession?" Consequently, this appeal is allowed, the order of the Additional District Judge remanding the case is set aside and it is directed that only on this issue of adverse possession alone a report be obtained from the trial Court within three months after the receipt of this order and on the receipt of that report from the trial Court, both the appeals be heard and decided together in accordance with law. The parties through their counsel have been directed to appear in the Court of the Additional District Judge, (II), Hissar, on 20th December, 1979.