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2001 DIGILAW 125 (PAT)

Rambilash Choudhary v. Lakshmi Sao

2001-02-13

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This miscellaneous case is directed against the judgment dated 15th May 1993 passed by the 10th Additional District Judge, Gaya in Title Appeal No. 6/91/64/89. The respondents of the first appeal are appellants here and they were defendants of title suit no. 53 of 1982. 2. The aforesaid title suit was filed by the respondent before this Court, namely, Lakshmi Sao, seeking declaration of their sale-deed dated 4th May 1972 and another sale-deed dated 25th January 1973 as null and void as also for removal of encroachment from plot Nos. 1755 and 1756 to the extent of 3 1/2 decimals. The case of the plaintiff-respondent was, in short to the effect that they had purchased plot nos. 1755 and 1756 by various saie-deeds. Subsequently, they sold 1 decimal to the defendant-appellant before this Court by registered sale-deed of plot no. 1756. However, the defendants had encroached upon plot nos. 1755 and 1756 which were amalgamated by the plaintiff and acquired 3 1/2 decimals of land of these two amalgamated plots. He also alleged fraud in the sale-deed executed by him, as far as the entry in the sale-deed was concerned and the entry relating to flow of water from the house of defendant upon the land of the plaintiff, was allegedly the fraudulent entry. Moreover, the encroachment over his plots was also alleged. 3. The trial court (Munsif-lll, Gaya) dismissed the suit and held that the relief relating to cancellation of sale-deed was time barred and fraud as alleged in the execution of the sale-deed was also not proved. The trial court further held that the report of the pleader commissioner was not scientific and, therefore, unreliable and hence, the relief relating to removal of encroachment was dismissed. 4. The first appellate court upheld the decision of the trial court regarding nullity or fraudulent execution of the concerned sale-deed. So far the relief relating to removal of encroachment from the plaintiffs land, the first appellate court remanded the suit for appointment of a fresh pleader commissioner and to give a fresh judgment. As far as this relief was concerned, the appeal was allowed in part only. 5. So far the relief relating to removal of encroachment from the plaintiffs land, the first appellate court remanded the suit for appointment of a fresh pleader commissioner and to give a fresh judgment. As far as this relief was concerned, the appeal was allowed in part only. 5. Before me, it was submitted by the defendant of the suit who was respondent in the first appellate court that the order relating to remand of the suit was erroneous, as there was already a report of the Pleader Commissioner against which there was no objection and, hence, the first appellate court was not justified in remanding the suit to the lower court for a fresh decision. 6. I find that so far the relief relating to cancellation of the concerned sale- deed or sale-deeds was concerned, both the lower courts held that the plaintiff- respondent had admitted execution of the sale-deeds and he had failed to prove the alleged fraud. Fraud alleged by one party in execution of a sale-deed is to be proved like a criminal trial by positive and unimpeachable evidence. On this aspect of the case, both the lower courts were one and the same in their findings and decisions and, therefore, I am of the opinion that the same became final. This Court, therefore, is not required to sit in judgment over the decisions of the two courts below, so tar the part of relief claimed by the plaintiff-respondent is concerned. 7. As far as the question of encroachment alleged by the plaintiffrespondent against the defendant-appellant is concerned, the trial court had held that the pleader commissioners report was not scientific. Therefore, he dismissed the suit but the first appellate court held that if the Pleader Commissioners report was unscientific the trial court should have appointed a fresh pleader commissioner to ascertain the actual state of affairs. The appellate court held that in the interest of justice it is imperative that the trial court should appoint a fresh Pleader Commissioner. 8. I am of the opinion that the powers of the courts of law are not fettered by technicalities in order to arrive at a true and just decision on controversial matters raised between the two parties. So if the appellate court directed the lower court to appoint a fresh pleader commissioner in order to ascertain encroachment on the land of the plaintiffrespondent. So if the appellate court directed the lower court to appoint a fresh pleader commissioner in order to ascertain encroachment on the land of the plaintiffrespondent. I do not think he committed any illegality or irregularities or went beyond his jurisdiction to pass such order. Power of the first appellate court is also wide, so far the administration of justice is concerned and, hence, I am further of the opinion that the impugned order of remand of the suit, of course in part, does not suffer from any illegality and perversity calling for any interference by this Court. 9. In the result, this appeal is dismissed. 10. In the circumstances of the case, there shall be no order as to cost of this appeal.