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2012 DIGILAW 434 (ALL)

Tiaga Singh v. Raj Bali Singh

2012-02-16

SANJAY MISRA

body2012
Sanjay Misra, J.;- Heard Sri Ravindra Rai learned counsel for the defendant appellant. Although the list of final hearing cases has been revised none appears on behalf of the plaintiff respondent. This is a defendants First Appeal From Order under Order 43 Rule 1 (L) CPC against the judgment and order dated 19.1.1984 passed in Civil Appeal No. 6 of 1984 by the VIth Additional District Judge, Mirzapur whereby he has allowed the appeal and remanded the matter to the Trial Court to decide the suit afresh. Learned counsel for the appellant has submitted that the impugned judgment of the first appellate court is patently illegal inasmuch as by the order dated 12.2.1984 the Trial Court had decided the Suit No. 13 of 1984 (Rajbali Singh Vs Mitai Singh and Others) on the basis that the parties had orally agreed to the modification of the Commissioners map and on the basis of the spot inspection done by the court itself and therefore when the parites on the spot had orally agreed for modification of the Commissioners map there was nothing more that could be decided since the dispute was settled by them during the course of spot inspection. He submits that first appellate court has illegally remanded back the matter to the Trial Court to decide the case on merits inasmuch as in view of the order passed by the Trial Court there was no dispute left between the parties. A perusal of the order dated 12.1.1984 passed by the Trial Court indicates that the Trial Court itself went to the spot for inspection and found that the Commissioners report and map had omitted to mention the correct position of the site. During the inspection the plaintiff and the defendant were present and they pointed out their dispute which according to the Trial Court was settled on the spot by demarcating the area meant for the plaintiff and the area meant for the defendant. The Trial Court by the order dated 12.1.1984 therefore modified the Commissioners map 16 ga-2 and made it a part of his own inspection report. The Trial Court by the order dated 12.1.1984 therefore modified the Commissioners map 16 ga-2 and made it a part of his own inspection report. On the very same day i.e. 12.1.1984 the Trial Court proceeded to pass final order whereby he has recorded that since the necessary correction has been made in the Commissioners map on the pointing out of the plaintiff and defendant during the spot inspection there appears to be now no dispute between the parties and therefore has decreed the suit partly and made the Commissioners report and map a part of the decree. The facts of the case are that the plaintiff appellant filed a civil appeal feeling aggrieved against the order dated 12.1.1984 passed by the Trial Court. The first appellate court considered the submission of the parties and recorded that neither issues were framed nor the Commissioners map was confirmed nor the Trial Court has decided the suit on merits and was of the view that when the Commissioners map and report was modified by the Trial Court on the basis of inspection made by it the suit ought to have proceeded to be decided on merits more particularly in view of the fact that there was no application by either of the parties to decide the suit on the basis of the inspection report made by the court itself. The Appellate Court found that adopting such course while deciding the civil suit was improper and it set aside the order of the Trial Court and remanded the matter back for decision afresh. A perusal of the record indicates that the Trial Court was considering the application 4-C made by the plaintiff and neither issues were framed nor written statement was filed in the suit. The view of the appellate court that the Trial Court had taken over the role of arbitrator appears to be correct. In case the plaintiff or the defendant had filed any application for deciding the suit in terms of the Commissioners report as modified by the inspection made by the Trial Court then the situation would have been that both the parties agreed that the suit be decided in terms there of. In case the plaintiff or the defendant had filed any application for deciding the suit in terms of the Commissioners report as modified by the inspection made by the Trial Court then the situation would have been that both the parties agreed that the suit be decided in terms there of. But what the Trial Court has done is that without any application and only on the basis that during the spot inspection the parties themselves have pointed out the errors in the Commissioners report and map and that he has corrected those errors in the Commissioners report and map he has decided the suit. Such view cannot be legally tenable for the purpose of deciding the suit in a summary manner on that very date. It is not a case where the parties have applied for decision of the suit without framing any issues and without filing of written statement. Under such circumstances the Trial Court ought to have granted opportunity to the defendant to file his written statement and for time for framing the necessary issues and in case the defendant had come up with his written statement and there were no issues left between the defendant and the plaintiff in view of the inspection report and modified Commissioners report only then the suit could have been decided in terms thereof. In the present case there is no such circumstance. The Trial Court appears to have acted arbitrarily and illegally. The reasoning given in the impugned appellate judgment appears to be sound. For the aforesaid reasons no interference is required in the impugned appellate judgment. This appeal is liable to be dismissed. This First Appeal From Order is therefore dismissed. The judgment and order passed by the first appellate court is confirmed. No order is passed as to costs.