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2018 DIGILAW 11 (JK)

Fayaz Ahmad Dar v. State of J&K

2018-01-23

M.K.HANJURA

body2018
ORDER : 1. Heard learned counsel for the parties. Caveat stands discharged. 2. This Civil Second Appeal has been filed by the appellant under Section 100 read with Section 104 and Order 43 Rule (1)(U) of the Code of Civil Procedure against the judgment dated 26.10.2017, passed by the learned Principal District Judge, Srinagar in an appeal bearing No. 11 of 2015, in case titled Ab. Rehman Dar vs. State of J&K and Others. 3. The facts of the case are that the appellant-respondent No. 6 herein filed a suit for declaration of injunction in the trial Court stating therein that in the year 1988, he purchased land measuring 1 Kanal 5 Marlas and 3 Sirsai falling under Khasra No. 167 min from Mst. Rafiqa by virtue of a sale deed executed on 31.05.1988 and registered on 07.06.1988. However, while purchasing this land he reflected the name of the respondent No. 6-appellant herein, as its purchaser. He was only five years of age at that moment. Likewise the appellant purchased another parcel of land measuring 1 Kanal 5 Marlas 3 Sirsai falling under Khasra No. 167 min from Mst Rehti vide a deed of sale executed on 31.05.1998 and registered on 07.06.1988, in the name of respondent No. 6 being the son of the appellant and the said land was mutated in his favour vide mutation order Nos. 260 and 261 respectively. It is further averred in the suit that after the purchase of this land the possession thereof remained with the appellant as owner in possession without any interruption. The respondent No. 6 deserted his parents after his marriage and chose to remain separately. He is trying to usurp the property of the appellant and is forcibly trying to take the possession of the suit property with the aid and assistance of the respondent Nos. 1 to 5. The appellant being in possession is deemed to be the owner of this land even if ostensibly he has purchased the land in the name of the respondent No. 6. It is the appellant who has invested a lot of money for the development of the suit property. Hence the suit. 4. The defendants/respondents on being summoned appeared before the trial Court. The defendant/respondent Nos. It is the appellant who has invested a lot of money for the development of the suit property. Hence the suit. 4. The defendants/respondents on being summoned appeared before the trial Court. The defendant/respondent Nos. 1 to 5 chose not to contest the suit and respondent No. 6 filed his written statement wherein he stated that the suit filed by the appellant was not maintainable in law as respondent No. 6 has been rendered houseless by the appellant and he along with his wife have been forcibly evicted from the residential house as also the suit property by the appellant. The suit is barred by limitation. The respondent No. 6 is the owner of the suit property as the same has been purchased in his name from the proceeds of the jewelry and Dower of his deceased mother. The suit property stands mutated in his name and the appellant with the active connivance of his second wife intends to divest the respondent No. 6 from the rights vested in him legally over the suit property and the other properties of the appellant being his son. It is further submitted that soon after the marriage of respondent No. 6, the attitude of the appellant and his second wife became cold towards him and he was forcibly ousted from suit property which was in his possession till October 2014. It is further averred that appellant has forcibly dispossessed the respondent No. 6 from suit property in utter disregard to the provisions of law. The suit has been filed without any cause of action rendering the same to be rejected in terms of Order 7 Rule 11 CPC. Finally, it has been prayed that the suit be dismissed. 5. On 24.03.2015, the respondent No. 6, filed an application under Order 7 Rule 11 CPC for the rejection of the suit on the ground that the suit has been filed by the appellant without disclosing the cause of action and after the period of limitation prescribed by law. 6. The trial Court after hearing the parties and considering the law on the subject rejected the suit of the appellant in terms of Order 7 Rule 11 CPC without costs by order dated 05.11.2015. 7. 6. The trial Court after hearing the parties and considering the law on the subject rejected the suit of the appellant in terms of Order 7 Rule 11 CPC without costs by order dated 05.11.2015. 7. The appellant/plaintiff assailed the judgment of the trial Court in an appeal before the learned Principal District Judge, Srinagar and the learned Principal District Judge, Srinagar, directed as under: "For what has been discussed above, the appeal is allowed and the impugned judgment and decree passed by the learned trial Court is set aside. The case is remanded back to the learned trial Court for trial in the light of the observations made hereinabove. The record of trial court be transmitted back forthwith along with copy of this order. The appeal file after due completion be consigned to records. Parties are directed to appear before the learned trial Court on 06.11.2017." 8. Dissatisfied with the order of the learned Principal District Judge, Srinagar, the appellant has filed this appeal before this Court, chiefly, on the ground that the judgment passed by the 1st learned appellate Court is devoid of any merit and substance. It is based on mere conjectures and surmises. It is not legally tenable, and is, therefore, liable to be quashed and set-aside. 9. Heard and considered. 10. Learned appearing counsel for the respondent No. 6 has vehemently argued that the appeal of the appellant is not maintainable in the present form. He has stated that the lower appellate Court after hearing the matter remanded the same to the trial Court for reconsideration and this order cannot be assailed in an appeal in view of the express legal bar created under Sub-Section 2 of the Section 104 of Civil Procedure Code. In support of his contention, the learned counsel for the respondent has placed reliance on the law laid down in the cases of Ram Surti Devi and Another vs. Rabindra Sharma and Others, AIR 2012 Patna 72 and K.M. Chitharanjan vs. Ravi Mohan and Another, AIR 2005 Kerala 10. 11. Per contra, the learned counsel for the appellant has stated that the impugned order of remand is open to appeal under Order 43 Rule (1)(U) of the Code and that being so the appeal before this Court is maintainable. 12. 11. Per contra, the learned counsel for the appellant has stated that the impugned order of remand is open to appeal under Order 43 Rule (1)(U) of the Code and that being so the appeal before this Court is maintainable. 12. Taking into consideration the rival submissions of the learned counsel for the parties, it would be profitable to quote the relevant excerpts of the provisions of Section 104 and Order 43 Rule (1)(U) of the Code of Civil Procedure. Section 104 reads as follows: "Orders from which appeal lies:- (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:- (a) xxx xxx xxx (b) (ff) an order under section 35A. (c) (ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be. (g) an order under section 95. (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree. (i) any order made under rules from which an appeal is expressly allowed by rules. Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this section." xxx xxx xxx xxx xxx ORDER XLIII R.1 running under the head "Appeals from orders" provides that an appeal shall lie from the following orders under the provisions of section 104, namely:- ................................................. (u) an order under rule 23f (or rule 23A) of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court." 13. From a bare reading of the aforesaid provisions of the law, what gets revealed is that in terms of the provisions of Section 104(1) of the Code, an appeal shall lie from the orders detailed therein and it has to be read in conjunction with Order 43 of CPC. From a bare reading of the aforesaid provisions of the law, what gets revealed is that in terms of the provisions of Section 104(1) of the Code, an appeal shall lie from the orders detailed therein and it has to be read in conjunction with Order 43 of CPC. What comes to the fore further from the perusal of Section 104 and Order 43 Rule (1)(U) CPC is that the orders passed in such appeals cannot be appealed against in terms of the provisions of Sub- Section 104(2) of the CPC. Order 43 Rule (1)(U) of the CPC, however, makes a provision for an appeal against an order passed under Rule 23(f) or Rule 23(a) CPC, directing the remand of a case. It stipulates in clear and unambiguous terms that the appeal will lie in such a case from the decree of the Appellate Court. The impugned Judgment is not a decree and, as such, no appeal would lie. This position is no longer res-integra. Resort can in this behalf be had from the law laid down in Ram Surti Devi and Another vs. Rabindra Sharma and Others, AIR 2012 Patna 72 and K.M. Chitharanjan vs. Ravi Mohan and Another, AIR 2005 Kerala 10. 14. Viewed in the context of all that has been said and done above, the objection raised by the learned counsel for the respondent No. 6 regarding the maintainability of the appeal, has all, substance and force in it and, therefore, it has to be accepted and shall prevail. The appeal of the appellant, as such, entails dismissal, and is, accordingly, dismissed along with the connected MP's. There shall be no order as to costs.