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2019 DIGILAW 1437 (KAR)

Nagesh v. Umesh

2019-06-26

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. Defendant Nos.1 and 2 appellants being aggrieved by the judgment and decree dated 04.04.2016 passed in RA No.47/2011 on the file of the Senior Civil Judge, Honavar reversing the judgment and decree dated 18.10.2011 in O.S.No.92/2005 on the file of the Prl. Civil Judge, Honavar have filed this Miscellaneous Second Appeal. 2. The status of the parties is referred to as per their ranking before the trial Court. 3. The plaintiff respondent No.1 herein filed the suit bearing O.S.No.92/2011 for declaration and possession of the suit property. Wherein, he alleged that defendants have encroached an area of 2 G-4Anas. 4. It is the case of the plaintiff that in Sy.No.340 his vendor namely Subraya was owner to the extent of 17 G and the same was allotted to him in the family partition and accordingly, he acquired right, title over the said property and the same was sold in favour of the plaintiff by registered sale deed dated 16.01.1984 by Subraya Ponadu Naik and accordingly, mutation was effected in his favour. When the defendants father deceased Shankar Naik raised objections, there was case in RTSDSR- No.41/83-84. Thereafter, there was compromise between the plaintiff and the father of the defendants. Accordingly, on 28.03.1984 withdrawn the objections. The property so purchased by plaintiff is described as suit property. The plaintiff has put up construction in the suit property and dug a well, which abuts to the suit property. On the other hand plaintiff had purchased an area of 2G 8 Anas in Sy.No. 341 on 07.07.2004, which is situated on the southern side of the suit land. After purchasing the said 2G 8Anas of land which is adjacent to his earlier purchased land, he put up a compound wall including both the lands. The defendants without any right, title or interest in the suit land purchased by the plaintiff, have destroyed the northern side fence. When the plaintiff enquired the defendants' they asked him to get measured the lands and get boundary fixed. Thereafter, the plaintiff got issued notice to the defendants on 06.12.2004 for which the defendants have given reply on 20.12.2005. Therefore, the plaintiff was constrained to file the suit seeking relief of declaration and injunction. 5. In pursuance of summons defendants appeared before trial Court and defendant No.3 filed written statement, which was adopted by the defendant Nos. 1 and 2. Therefore, the plaintiff was constrained to file the suit seeking relief of declaration and injunction. 5. In pursuance of summons defendants appeared before trial Court and defendant No.3 filed written statement, which was adopted by the defendant Nos. 1 and 2. They have contended that as per the mutation entry No.2386 the father of the defendants was in possession of 31 G of land allotted to him and after his death his wife and defendants are in possession and cultivating of the same. They have further contended that there were no separate Hissas as 3A and 3B. In spite of that Subraya Ponadu Naik by taking advantage, he got entered his name in Hissa No.3, sold the said property to the defendants. When the said Subraya Ponadu Naik tried to sell remaining 4 G of land in Sy.No.341 in fact there were no hissas available in the said survey number. As per Sy.No.340/3 in records it is 17G 8Anas but in fact the land is only 14G 0 Anas and there is shortage of land from Sy.No.341 but he did not inform the same to his purchasers. Thereafter, he filed a suit against the plaintiff and two others before the trial Court in O.S.No.13/2003. They have further contended that in the year 1985 when the surveyor measured the land, plaintiff came to know that an extent of land purchased by him in Hissa No.3 is only 5G he came to know that remaining extent in Hissa No.3 is in possession of father of the defendants. After survey, plaintiff have put up fence to 5 G of land. Even if it is proved that extent of 2 G 8 Anas of land, which is situated on northern side of said fence belonging to the plaintiff since from the year 1925, the predecessors of the defendants and now the defendants are in continuous possession of Hissa 3 of the land and they have become the owners of the said land by way of adverse possession. The plaintiff is only in possession of 5 guntas of land and the remaining 2 G 8 Anas of land is in possession of defendants. Hence, prayed to dismiss the suit. 6. On the basis of pleadings of the parties, the trial Court framed the issues. 7. In support his case plaintiff himself got examined as PW-1 and got marked 28 documents as Ex.P1 to Ex.P.28. Hence, prayed to dismiss the suit. 6. On the basis of pleadings of the parties, the trial Court framed the issues. 7. In support his case plaintiff himself got examined as PW-1 and got marked 28 documents as Ex.P1 to Ex.P.28. However, the defendant No.2 got examined as DW.1 and got marked 15 documents as Ex.Ds.1 to 15. 8. The trial Court after hearing both the parties decreed the suit of the plaintiff. It was declared that the plaintiff is the absolute owner of the suit land i.e. 0-7-8 of land in Sy.No.340/3B measuring 0-17-8 of Honavar. The defendants were directed to hand over the vacant possession of the land measuring 0-2-4 to the plaintiff within 30 days. 9. The defendants being aggrieved by the said judgment and decree filed regular appeal No.47/2011 on the file of the Senior Civil Judge, Honavar. The Appellate Court secured the LCR. Heard the learned counsel for the parties and passed the impugned judgment on 04.04.2016 thereby the above appeal was allowed and the judgment and decree passed by the trial Court was set aside. Further, the matter was remitted to the trial Court for fresh consideration. However, the First Appellate Court further ordered that the trial Court need not go into the question of title of the plaintiff over the suit property and further directed the trial Court to appoint a Survey Commissioner to identify 17G of 8 A of Kharab land given to Phondu Subray Naik in Sy.No. 340/3 as per Ex.P.14. Further to identify the property sold by Phondu Subray Naik in favour of plaintiff as per Ex.P.22 sale deed and to determine the encroachment if any by the defendant in the property purchased by the plaintiff. After receipt of the Commissioner's report, the Court shall proceed further in accordance with law. 10. The defendants being aggrieved by the impugned order of the First Appellate Court have filed this Miscellaneous Second Appeal, the appeal has been admitted for consideration of the following substantial question of law: Whether the Lower Appellate Court was justified in remitting the matter to the trial Court to enable the respondent/plaintiff to establish alleged encroachment which only indicates that the matter is remitted to enable the respondent No.1/plaintiff to fill the lacuna which is impermissible and improper and hence, the remand order being contrary to provision of Order 41 Rule 23 suffers from perversity ? 11. 11. Heard the learned counsel for the appellants and respondents. 12. Learned counsel for the appellants vehemently submitted that the order of the First Appellate Court remanding the matter to the trial Court with a direction to appoint Court Commissioner for identifying the property of the plaintiff and also encroachment if any by the defendants is not sustainable in law and that there was no ground for remanding the matter to the trial Court as required under Order XLI Rule 23 of CPC. Therefore, the order of remanding the matter to the trial Court is not sustainable in law. 13. Per contra, the learned counsel for the respondents supports the impugned judgment and decree passed by the First Appellate Court. 14. The only question to be considered in this appeal is as to whether the judgment and decree remanding the matter to the trial Court with a directions as stated above is sustainable in law, in view of the provision of Order XLI Rule 23 of CPC. 15. The First Appellate Court after having set aside the judgment and decree, would not have remanded the matter to the trial Court, and directing the trial Court to appoint survey Commissioner to identify the property of the plaintiff and to identify whether there is any encroachment by the defendants and then determine encroachment if any by the defendants and thereafter, to proceed further in accordance with law. The First Appellate Court has observed in para No.34 of the judgment that neither the plaintiff nor the defendants have not filed any application for appointment of Survey Commissioner before the trial Court or before the First Appellate Court. However, as per the provisions of Order XXVI Rule 9 of CPC the Court can suo motu appoint a Court Commissioner for local inspection for the purpose of elucidating the matter in dispute. It appears only on this ground the First Appellate Court proceeded to remand the matter to the trial Court directing the trial Court for appointment of survey Commissioner to measure the property and identify the property and also to ascertain if there is any encroachment by the defendants. It appears only on this ground the First Appellate Court proceeded to remand the matter to the trial Court directing the trial Court for appointment of survey Commissioner to measure the property and identify the property and also to ascertain if there is any encroachment by the defendants. The First Appellate Court held that findings recorded by the trial Court so far as the title of the plaintiff in respect of suit property need not be considered again the trial Court had also passed a decree directing the defendants to hand over the vacant possession of land measuring 2 G-4 Anas to the plaintiff, the First Appellate Court ought not to have proceeded to remand the matter to the trial Court for the purpose of identifying the suit property and also to ascertain encroachment if any by the defendants. In case the First Appellate Court found on facts that it was necessary for appointment of survey Commissioner to conduct local investigation and survey of the property, only for that purpose, such exercise is not a ground for remanding the matter to the trial Court. The provision of Order XLI Rule 23 of CPC provides for remanding of the matters to the trial Court where the First Appellate Court holds that re-trial is necessary in the matter. In the present case, the First Appellate Court after confirming the finding recorded by the trial Court, there was no question of re-trial being considered necessary. Under these circumstances, the substantial question of law is answered in the negative holding that the First Appellate Court is not justified in remanding the matter to the trial Court and therefore, the impugned judgment and decree passed the First Appellate Court is liable to be set aside. Further, it is necessary to direct the First Appellate Court to hear the appeal afresh and dispose of the appeal on merits in accordance with law. Accordingly, this Court proceed to pass the following: ORDER The Miscellaneous Second Appeal is allowed. The judgment and decree dated 04.04.2016 passed in Regular Appeal No.47/2011 by the Senior Civil Judge, Honavar is hereby set aside. The matter is remanded to the First Appellate Court on the following directions (a) The First Appellate Court shall re-register the appeal in its original number; (b) The First Appellate Court shall re-hear the appeal on merits and dispose of the appeal in accordance with law. The matter is remanded to the First Appellate Court on the following directions (a) The First Appellate Court shall re-register the appeal in its original number; (b) The First Appellate Court shall re-hear the appeal on merits and dispose of the appeal in accordance with law. Both the parties are directed to appear before the First Appellate Court on 27.07.2019 without waiting for notices.