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2012 DIGILAW 563 (PAT)

Mohd. Akhtar Ansari v. Md. Mustafa Ansari

2012-04-03

SHAILESH KUMAR SINHA

body2012
Shailesh Kumar Sinha, J. – The appeal is directed against the order dated 18th of April, 2009 in Title Appeal No.21 of 2007 passed by the District Judge, Begusarai, whereby the judgment and decree dated 30th of March, 2007 in Title Suit No.97 of 1985 passed by the Munsif 2nd, Begusarai was set aside and the matter was remanded back to the trial court for passing the judgment and decree after complying the earlier direction in Title Appeal No.4/89/11/89.The plaintiffs as such have preferred the present appeal, on being aggrieved by the order of remand. 2. The controversy between the plaintiffs and the contesting defendants is with respect to the encroachment of land. The plaintiffs are the purchasers of 4 Kathas 10 Dhurs of land in Survey Plot no.79 of Touzi no.978, Khata no.10 situated at Mouza Harakh, Pargana Malki and the contesting defendants are the purchasers of 6 Kathas of land from the said survey plot. 3. It is the case of the plaintiffs that the contesting defendants have encroached upon the land of the plaintiffs to the extent of 1 Katha 19 dhurs. The plaintiffs’ suit was dismissed and on appeal vide Title Appeal No.4/89/11/89, the aforesaid plaintiffs’ suit was dismissed by judgment and decree dated 25.5.1989 and the plaintiffs on being aggrieved preferred Title Appeal No.4/89/11/89, which was allowed on 17.5.1990 remanding the suit to the trial court with a direction that 6 Kathas of land of the defendants should be measured by appointing survey knowing Pleader Commissioner, who will report as to whether the defendants are in possession of any land in excess of 6 Kathas. It would further appear that after remand, a new issue i.e. Issue no.4A was framed, which is quoted below : – “Issue No.4A: Whether the defendants No.1 to 5 are in possession of any excess area than 6 Kathas land owned by them in suit plot no.79?” The said suit was decreed and as such, the contesting defendants preferred an appeal, vide Title Appeal No.21 of 2007. 4. 4. The appellate court taking note of the admitted facts with respect to the lands of the parties and on perusal of the Pleader Commissioner’s report found that the reference made to the Pleader Commissioner was not as per the specific Issue no.4A, as quoted above; with the result the Pleader Commissioner could not give any specific report on the disputed issue as to whether the defendants are in possession of the land in excess of 6 Kathas. The appellate court on finding, as above, remanded the matter back to the trial court after setting aside the judgment and decree with the direction to the court below for passing a fresh judgment and decree in the light of the direction of the appellate court in its order of remand passed in previous Title Appeal No.4/89. 5. Learned counsel for the appellants is present. However, no one appears on behalf of the respondents. 6. Learned counsel for the appellants submits that the appellate court could not appreciate properly the Pleader Commissioner’s report, which on proper appreciation would show that defendants no.1 to 5 are in possession of the land more than 6 Kathas, which belonged to them. It is further submitted that in the previous appeal filed by the plaintiffs, the specific issue was although framed and in the light of the said issue as to whether defendants no.1 to 5 are in possession of any excess area than 6 Kathas of land in disputed plot no.79 was to be got measured by a survey knowing Pleader Commissioner. The Pleader Commissioner was appointed and he had given the report. According to the learned counsel, the report is indicative that the defendants are in possession more than 6 Kathas of land and as such, the appellate court could not have remanded the matter back to the trial court. 7. Upon hearing the submissions of the learned counsel for the appellants, the only issue, as noticed above, is that the land of the defendants no.1 to 5 was to be measured in order to find out as to who was in possession of the land in excess of 6 Kathas. It was a very specific issue. 7. Upon hearing the submissions of the learned counsel for the appellants, the only issue, as noticed above, is that the land of the defendants no.1 to 5 was to be measured in order to find out as to who was in possession of the land in excess of 6 Kathas. It was a very specific issue. The learned counsel for the appellants submits that perusal of the Pleader Commissioner’s report dated 3.1.2002 brought on the record as Ext.1, would go to show that the defendants are in possession in excess of 6 Kathas of land. In order to consider the submission of the learned counsel for the appellants, this Court also perused Ext.1, the Pleader Commissioner’s report. However, on perusal of the entire Pleader Commissioner’s report it could not be found that the Pleader Commissioner has given a report that defendants no.1 to 5 are in possession of excess of 6 Kathas of land. The Pleader Commissioner in his report has also mentioned that no specific point was mentioned in the Writ given to the Pleader Commissioner for answer. It was stated in the Pleader Commissioner’s report that the Writ given to him only mentioned that the Commissioner is required to measure the land of Survey Plot no.79 from fixed survey points and also to report on the extent of possession of the defendants over Survey Plot no.79 and also land held by other persons in the survey plot. In my opinion, since the Writ given to the Pleader Commissioner was not specific as per Issue No.4A; with the result the Pleader Commissioner could not submit the specific issue. In this view of the matter, the appellate court, in my opinion, was rightly remanded back the matter to get the disputed area of land measured in order to find out as to whether defendants no.1 to 5 are in possession of the land in excess of 6 Kathas of land owned by them. In absence of such evidence on the record, the appellate court could not have decided the appeal and as such rightly remanded the matter. 8. In the result, I do not find any merit in the appeal. It is, accordingly, dismissed. No costs. 9. Let the lower court records be sent down to the court below without delay.