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2019 DIGILAW 1668 (HP)

Kalag Ram v. Kamla Devi

2019-11-07

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellant has challenged the judgment passed by the Court of learned Additional District Judge (II), Shimla, Camp at Rohru, H.P., in Civil Appeal No.RBT-52-R/13 of 2014/2011, titled as Smt. Kamla Devi Versus Kalag Ram, decided on 11.09.2014, vide which the appeal filed against the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Court No.II, Rohru, District Shimla, H.P. in Civil Suit No.29/01 of 2010/05, titled as Smt. Kamla Devi Versus Kalag Ram, stood allowed and the matter was remanded back to the learned trial Court to decide the same afresh after carrying out fresh demarcation of the suit land through an officer not below the rank of Assistant Collector, 1st Grade. 2. Brief facts necessary for the adjudication of the present appeal are that a suit for permanent prohibitory injunction was filed by the present respondent/plaintiff (hereinafter to be referred as 'plaintiff') against the present appellant/defendant (hereinafter to be referred as 'defendant'). The case of the defendant was that she was owner in possession of the suit land, upon which she had raised a five storeyed building. Defendant was owner of the adjoining land. On the eastern side of the building of the plaintiff, there was a path which belonged to the plaintiff. Defendant by taking undue advantage of the simplicity of the plaintiff, started encroaching upon the said passage by constructing a retaining wall. Though, on 07.06.2005, said attempt of the defendant was throttled, however, he attempted encroachment again on 08.06.2005. Defendant was requested not to do so, but he did not accede to the request of the plaintiff, hence, the suit. 3. The suit was resisted by the defendant inter alia on the ground that there was no passage as alleged by the plaintiff existing on the eastern side of the building owned by her and the passage which was existing belonged to the defendant. Attempt to encroach upon alleged passage of the plaintiff was denied. The case of defendant was that he was carrying out repairs upon the path which belonged to him. 4. Attempt to encroach upon alleged passage of the plaintiff was denied. The case of defendant was that he was carrying out repairs upon the path which belonged to him. 4. The suit was dismissed by learned trial Court inter alia on the ground that as plaintiff herself had not stepped into the witness box to depose about the facts as alleged in the plaint and it was only her son Sandeep Sood (PW-1), who appeared not to be authorized to depose, therefore, the suit was bad. Learned trial Court also held that the demarcation report relied upon by the plaintiff, which was carried out during the pendency of the case, also did not come to the rescue of the plaintiff because a perusal of the report suggested that efforts were not made by the Local Commissioner to locate three permanent points by referring to the Musabi etc. and therefore, the report was not prepared in accordance with law and as per the instructions issued by the Financial Commissioner. 5. In appeal, the findings so returned by the learned trial Court have been set aside by the learned Appellate Court inter alia on the ground that dismissal of the suit by the learned trial Court purportedly on the failure of plaintiff to step into the witness box amounted to adopting a hyper technical approach and that too without considering relevant facts and circumstances of the case. Learned Appellate Court further held that once learned trial Court found that the demarcation carried out pursuant to its order was not conducted in accordance with law, then in the interest of justice, fresh demarcation should have been ordered to be conducted in accordance with old record to ascertain the identity of the subject matter in dispute between the parties by the learned trial Court. 6. Learned Appellate Court on these basis, remanded the matter back to the learned trial Court for adjudication afresh after appointing a fresh Local Commissioner not below the rank of officer of Assistant Collector, 1st Grade, who was directed to conduct demarcation in accordance with the old record. 7. Feeling aggrieved, defendant has filed the present appeal. 8. Learned counsel for the appellant has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law as wholesale remand is not permissible in law. 7. Feeling aggrieved, defendant has filed the present appeal. 8. Learned counsel for the appellant has argued that the judgment passed by the learned Appellate Court is not sustainable in the eyes of law as wholesale remand is not permissible in law. He argued that as plaintiff could not prove her case, therefore, there was no need to remand the matter back and the appeal ought to have been dismissed by the learned Appellate Court. 9. On the other hand, learned counsel for the respondent has argued that as the judgment passed by the learned trial Court was not sustainable in the eyes of law as the same was not only against the evidence on record, but was also against the settled precedents that once a Court comes to the conclusion that demarcation, which was carried out on its own order was bad in law, then before proceeding further, the Court ought to have had ordered a fresh demarcation to do justice to the parties. Thus, he submits that as there is no infirmity with the judgment passed by the learned Appellate Court, no interference is warranted. He further argues that even otherwise the order which was passed by the learned Appellate Court was an equitable order as it had just remanded the matter back to the learned trial Court for adjudication afresh after getting the suit property demarcated, meaning thereby that it had not adjudicated upon the rights of either of the parties and had left open to the learned trial Court to decide the case afresh on the basis of evidence on record. 10. I have heard learned counsel for the parties and have also gone through the judgments passed by the learned Court below as well as record of the case. 11. A perusal of the judgment passed by the learned trial Court demonstrates that what weighed with it while dismissing the suit filed by the plaintiff was that she did not appear in the witness box to prove her case. Learned trial Court drew adverse inference of the fact that no cogent explanation was there as to why plaintiff did not enter into the witness box, though PW-1 Sandeep Sood did appear in the witness box, who happened to be her son. Learned trial Court drew adverse inference of the fact that no cogent explanation was there as to why plaintiff did not enter into the witness box, though PW-1 Sandeep Sood did appear in the witness box, who happened to be her son. Besides this, learned trial Court while rejecting the demarcation report, held that the Commissioner who had carried out the demarcation, had deposed in the Court itself that he had not identified three points as per Musabi. On these two grounds, suit was dismissed. 12. In my considered view, the approach which was adopted by the learned trial Court was hyper technical. It is true that in case a party does not enters into the witness box, then the Court has to look into the consequences thereof. However, it is not as that not entering of a party into the witness box is fatal to the case per se. This extremely important aspect of the matter has been ignored by the learned trial Court in the peculiar facts of the present case where admittedly defendant also personally did not enter into the witness box. Besides this, as the son of plaintiff did appear as a witness, whatever he deposed atleast ought to have been looked into by the learned trial Court though not as a statement of the plaintiff but as a statement of some one who was closely related to plaintiff and was aware of the factual matrix, to ascertain as to whether anything could be adduced or deduced from the said statement of the witness either in favour of the plaintiff or against her. 13. Coming to the adjudication by the learned trial Court on the issue of demarcation report, therein also the criteria which was adopted by the leaned trial Court was impermissible and not sustainable in the eyes of law. It is not understood as to why learned trial Court ventured into the correctness of the report of Local Commissioner on the touch stone of the testimony of Local Commissioner when it was the case of both the parties before it that the report of Local Commissioner could not be acted upon as it was based upon new revenue records which subsequently stood set aside by the government. Learned trial Court erred in dismissing the suit filed by the plaintiff on the ground that the demarcation report did not come to the rescue of plaintiff. Learned trial Court erred in dismissing the suit filed by the plaintiff on the ground that the demarcation report did not come to the rescue of plaintiff. The course which learned trial Court should have adopted was to have had ordered fresh demarcation on the basis of the old record, upon which both the parties were relying upon. 14. This is exactly what the learned Appellate Court has done by setting aside the judgment passed by the learned trial Court and remanding the matter back to the learned trial Court for adjudication afresh. 15. This Court is not oblivious of the fact that learned Appellate Court has made remand of the case to the learned trial Court, but it is not as if the same is barred in law. 16. The remand of a case by an Appellate Court is permissible under the provisions of Order 41, Rule 23, Order 41, Rule 23-A and Order 41, Rule 25 of the Code of Civil Procedure provided the conditions mentioned therein are satisfied. 17. Under Order 21, Rule 23 of the Code of Civil Procedure, remand is permissible in matters in which 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. Similarly, under Order 41, Rule 25 of the Code of Civil Procedure, where the Court from whose decree, the appeal is preferred, has omitted to frame or try an issue etc., which appears to the Appellate Court essential for the purpose of the adjudication of the suit on merit, the Appellate Authority 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, it shall further direct such Court to take additional evidence required. 18. In the present case, this was not possible because two points upon which the suit was dismissed, were both set aside by the learned Appellate Court and thereafter, it was not expected from the learned Appellate Court to have had kept the matter pending with it by calling upon the learned trial Court to determine its findings on the said two points and thereafter refer the matter back to the learned Appellate Court. In fact, the course adopted by the learned Appellate Court of setting aside the judgment and decree passed by the learned trial Court and remanding the matter back to it with the direction as are contained therein was the correct course which this Court approached. 19. The power so exercised by the learned Appellate Court is inconsonance with the provisions of Order 41, Rule 23-A of the Code of Civil Procedure because here it is not a case where a wholesale remand has been made by the learned Appellate Court in a case which was either covered under the provisions of Order 41, Rule 23 of the Code of Civil Procedure or Order 41, Rule 25 of the Code of Civil Procedure. 20. Accordingly, as this Court does not finds any merit in the present appeal and further as there is no infirmity with the judgment passed by the learned Appellate Court, this appeal is dismissed. The parties are directed to appear before the learned trial Court on 09.12.2019. Pending miscellaneous applications, if any, also stand disposed of. Interim order, if any, stands vacated.