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2006 DIGILAW 681 (UTT)

SWARUP SINGH v. RAM GOPAL KAUSHIK

2006-11-30

B.C.KANDPAL

body2006
JUDGMENT Hon’ble B.C. Kandpal, J. 1. This appeal has been preferred by the plaintiffs against the judgment and order dated 18.1.2000, and its decree-cum-formal order dated 24.1.2000 passed by Civil Judge (S.D.) Roorkee, District Haridwar in Civil Appeal No. 1/1997, Ram Gopal Kaushik Vs. Swarup Singh and others, whereby the appeal was allowed and the judgment decree dated 9-12-1996 passed by Civil Judge (J.D.) Roorkee, District Haridwar passed in O.S. No. 193/1983 was set aside and the case was remanded back. 2. The relevant facts giving rise to this appeal, in short, are that the plaintiffs/appellants instituted a suit before the Civil Judge (J.D) Roorkee, against the defendants/respondents for eviction, of the defendants from the property in suit; for possession and for the removal of the unauthorized constructions made over the property in dispute. According to the plaintiffs they are the owner of Khokha situated over Khasra No. 1028/1 in Mohalla Maktulpuri near Ram Nagar Camp, Qasba Roorkee. In October 1979, the aforesaid property along with its premises was given to the defendants for six months as licensee. When the defendant did not vacate the suit property, notice dated 2 3.5.83 was served upon him by which the defendant was asked to remove his possession within 30 days, but did not pay any heed to it, hence the suit was filed. 3. The defendant No. 1 filed W.S. before the Civil Judge (J.D.) and denied the plaint case. According to the defendant the suit property was a vacant land and about 18-20 years ago he took possession over 75 feet X 45 feet land and thereafter raised construction over it. The plaintiffs had already sold their land in the year 1952 by registered sale deed to Bhawanti Devi. The disputed land is part of Khasra No. 1029 and not of Khasra No. 1028/1. 4. During the pendency of the suit, defendant No. 2 was made party to the suit and he also contested the suit. According to him the disputed land is situated in Khasra No. 1028 and he is in possession of the land from 12-13 years. The Khokha was constructed by him. 5. On the basis of pleadings of parties, the learned Civil Judge (J.D.) framed the following issues in the suit:- 1. Whether the plaintiffs are owners of property in suit? 2. Whether the defendants was licensee of the plaintiffs of the disputed property? 3. The Khokha was constructed by him. 5. On the basis of pleadings of parties, the learned Civil Judge (J.D.) framed the following issues in the suit:- 1. Whether the plaintiffs are owners of property in suit? 2. Whether the defendants was licensee of the plaintiffs of the disputed property? 3. Whether the suit is undervalued and the court fee paid is insufficient? 4. Whether the construction over the disputed land has been raised by the defendants? 5. Whether the suit is barred by time? 6. Whether the suit is barred by the principle of Res-Judicata? 7. Relief? 8. Whether the disputed construction was raised by defendant No. 2? If so, its effect? 9. Whether the disputed property is situated in Khasra Plot No. 1028/1 in Qasba Roorkee or in Khasra No. 1029? 10. Whether the defendant No. 2 has become owner of the disputed property by way of adverse possession? If so, its effect? 11. Whether the disputed construction was made before institution of the suit or during the pendency of the case? 6. Thereafter, parties led evidence in support of their cases. The learned Civil Judge (J.D.) after hearing learned counsel for the parties and perusing the evidence on record, decreed the suit and the defendant was directed to vacate the suit premises within 30 days and possession be handed over to the plaintiffs. The defendant was also directed to remove the construction, if any, raised by him during the pendency of the suit. 7. Feeling aggrieved the defendant No. 1 Ram Gopal Kaushik preferred appeal before the Civil Judge (S.D.), which was allowed and the case was remanded back to the Civil Judge(J.D.) to do survey of the disputed property and thereafter decide the case afresh on merit. 8. Feeling aggrieved by the impugned judgment and order passed by the lower appellate court, the plaintiffs have preferred this appeal, before the Allahabad High Court, which has been transferred to this court after creation of new state. 9. Heard Learned counsel for the parties and perused the record. 10. The record reveals that the trial court after considering the pleadings and evidence of the parties decreed the suit in favour of the plaintiff-appellant. While decreeing the suit and trial court recorded categorical findings and decide all the issues in favour of the plaintiff-appellants. 9. Heard Learned counsel for the parties and perused the record. 10. The record reveals that the trial court after considering the pleadings and evidence of the parties decreed the suit in favour of the plaintiff-appellant. While decreeing the suit and trial court recorded categorical findings and decide all the issues in favour of the plaintiff-appellants. It is also pertinent to mention here that the respondent No. 1 Ram Gopal preferred the appeal before the first appellate court, while the respondent No. 2 Om Prakash did not prefer any appeal against the judgment and decree passed by the trial court. Issue No. 1 was framed by the trial court on the pleadings of respondent No. 2 that he becomes the owner of the property in question on the basis of adverse possession. The trial court subsequently held that the respondent No. 2 Om Prakash has not acquired any right by adverse possession over the property in question. The first appellate court set aside the judgment and decree passed by the trial court and remanded the matter to the trial court for deciding the case on the basis of the observations made in the body of judgment. The judgment passed by the lower appellate court shows that the appellate court has not decided any of the issues while deciding the appeal. Only issue No. 9 was discussed by it in the impugned judgment and order dated 18.1.2000. The first appellate court allowed the appeal and remanded the matter for deciding the entire controversy afresh without setting aside or reversing the findings recorded by the trial court. The record of this case shows that there was sufficient evidence on record, hence it was incumbent upon the lower appellate court to decide the appeal on merit and there was no occasion to remand the matter for deciding the suit afresh. 11. The power of remand by the first appellate court is provided under Rules 23 and 23-A of Order 41 C.P.C. which are quoted below :- “23. 11. The power of remand by the first appellate court is provided under Rules 23 and 23-A of Order 41 C.P.C. which are quoted below :- “23. Remand of case by appellate Court – Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23-A Remand in other cases – Where the Court from whose decree an appeal is preferred has 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”. 12. On a bare perusal of the aforesaid Rules, it is quite clear that Rule-23 empowers the appellate court for remanding the matter in those cases where the appeal has been preferred against an order where the suit has been disposed of upon a preliminary point and decree has been reversed in appeal. In the instant case Rule 23 would not apply, as the trial court has not decided the suit on a preliminary point, rather the suit has been decided by the trial court on all the issues. 13. Rule 23-A provides remand in other cases where the appeal has been preferred otherwise than on a preliminary point and the decree is reversed in appeal and re-trial is considered necessary. In the instant case the first appellate court has remanded the matter for deciding the suit afresh without considering the aspect as to whether re-trial is necessary. 14. Further in order to resolve the controversy in this case it would again be relevant to read Rules 24 and 25 of Order 41 C.P.C., which run as follows :- “24. In the instant case the first appellate court has remanded the matter for deciding the suit afresh without considering the aspect as to whether re-trial is necessary. 14. Further in order to resolve the controversy in this case it would again be relevant to read Rules 24 and 25 of Order 41 C.P.C., which run as follows :- “24. Where evidence on record sufficient, appellate court may determine case finally – Where the evidence upto the record is sufficient to enable the appellate court to pronounce judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than on which the appellate court proceeds. 25. Where appellate court may frame issues and refer them for trial to court whose decree appealed from – Where the court from whose decree appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the appellate court together with its findings thereon and the reasons therefore within such time as may be fixed by the appellate court, or extended by it from time to time.” 15. On a reading of the aforesaid Rules it is clear that where the evidence on the record is sufficient to enable the appellate court to pronounce the judgment, the appellate court shall finally determine the suit after resettling the issues. 16. Rule-25 envisages that where the trial court has omitted to frame any issue, which appears to the appellate court to be essential to the right decision of the suit upon merit, then the appellate court will frame issue, if it is necessary, and refer the same for trial to trial court and shall also direct to take the additional evidence so required. 17. 17. Therefore, the aforesaid provisions make it quite clear that remand of the case can only be done if the trial court has omitted to frame any issue and which is found necessary by the appellate court then the appellate court will direct the trial court to decide the matter afresh after framing the issue. 18. In the instant case the evidence on record is sufficient, therefore, the appellate court had to pronounce the judgment on the basis of such evidence. The order of the appellate court remanding the matter to the trial court for delivering a fresh judgment on the basis of the existing evidence on record would be illegal. The appellate court can remand the case only when it can not determine the issue U/O 41, Rules 24 to 27 C.P.C. Therefore, a remand of the matter by the appellate court would be illegal, when the appeal itself could have been disposed of by the appellate court. In the instant case the entire evidence was available on the record and the appellate court could very-well decide the controversy in question. The first appellate court could not remand the matter in a routine manner and this type of order of remand would be illegal. 19. For the reasons stated above I am of the view that the impugned judgment and order dated 18.1.2000, passed by the lower appellate court is liable to be set aside. 20. Accordingly the appeal is allowed. The impugned judgment and order passed by the lower appellate court dated 18.1.2000 is hereby set aside. 21. The matter is remanded back again to the first appellate court to decide the appeal on all the issues, on the basis of the evidence available on the record. 22. As the matter is very old, therefore, the lower appellate court is directed to decide the appeal within a period of one month after the receipt of the record as well as the copy of the judgment passed by this court. 23. With the aforesaid observation, the appeal is allowed. No order as to costs.