Smt. Sheela Devi vs Mata Chintpurni Ji Mandir Committee

Dev Darshan Sud, J.—The appellant is aggrieved by the order of remand passed by the learned Additional District Judge, Una remanding the case to the learned trial Court after setting aside the judgment and decree in favour of the appellant-plaintiff. The appellant instituted a suit against the Mandir Committee of Mata Chintpurni Ji claiming decree of prohibitory and mandatory injunction on the allegations that some kind of encroachment has been made by the temple authority on the land of the plaintiff. The suit was decreed.

The Temple Committee aggrieved by the judgment and decree had appealed. The learned District Judge, on going through the entire evidence on record and re-appreciating the same, set aside the judgment and decree of the learned trial Court. The Court then observed that the demarcation report Ext.P-11 was not in accordance with law. The observations of the learned Judge are recorded in detail:

Coming to the demarcation report Ext.P-11 of the Assistant Settlement Officer, I will like to say that the same is also not in accordance with law. The Assistant Settlement Officer did not record the statements of the parties before the start or after the completion of the alleged demarcation. Rather, from the contents of Ext.P-11, it can be gathered that when the Assistant Settlement Officer conducted the demarcation, none from the side of the defendants was present. Thus, the report Ext.P-11 also deserves to be brushed aside.

As both the demarcation reports i.e. Exts. P-2 & P-11 have been rejected by this Court, the question arises as to whether the plaintiff should be shown the doors of the Court for this reason? To my mind, the answer to this query is in the negative in view of the observations made by our Hon''ble High Court in Braham Datt-Appellant Versus Prem Chand and Others-Respondents, 2000 (1) S.L.J. 431. In view of the trite laid down in this authority, the matter is required to be remitted to the learned lower Court with the direction to decide it afresh after getting the lands of the parties demarcated.

Having come to this conclusion and on detailed observations made by the Court, the case was remanded to the trial Court for decision afresh in accordance with law. This is a wholesale remand ordered by the learned District Judge. The purport of the judgment seems to be that the learned Court should direct a fresh demarcation to be conducted in accordance with law.

I have heard learned counsel appearing for the parties.

At the outset, I must express my anguish that the plaintiff is litigating for a minor piece of land and that too against the Temple trust. However, sentiments can have no place in adjudicating claims based on title. In any event, when the learned Appellate Court had considered the entire case of the parties and came to the conclusion that the demarcation was defective, the proper course was not to direct a wholesale remand but to proceed with the case in accordance with law. In case the learned Court came to the conclusion that fresh demarcation was necessitated, it should have itself directed such course of action and then proceeded with the appeal.

In these circumstances, order of remand is quashed and set aside. The learned Appellate Court is directed to re-admit the case on its record and proceed further in accordance with law and inter-alia direct demarcation afresh. Needless to say, that if any fresh proceedings/evidence etc. is recorded by the learned Appellate Court, an opportunity shall be given to both the parties to place on record material/evidence in support of their contentions. Appeal stands disposed of. The appeal in no manner decides on the other facts on which the learned District Judge has decided the case.

Parties to appear before the learned Additional District Judge, Una on 1st August, 2012. All miscellaneous application(s), stands dismissed.