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Madhya Pradesh High Court · body

2019 DIGILAW 496 (MP)

Dharam Singh v. Deenanath

2019-07-09

VISHAL MISHRA

body2019
ORDER 1. The present Misc. Appeal under Order 43 rule 1 (u) of Code of Civil Procedure against the order dated 12.5.2010 passed by IV Additional District Judge, Bhind in Civil Appeal No. 47/2009 and 48/2009 whereby allowing the appeal order of remand has been passed. 2. The plaintiffs respondents No. 1 to 4 herein have filed a civil suit for declaration and permanent injunction and also for closing the door on the land araji No. 202 and for possession of the garbage center. It is being pleaded that the suit property was purchased by registered sale deed dated 20.6.1984 by defendants No. 3 and 4 and thereafter, family settlement has taken place, on the basis of which, they are in possession. It is alleged that they are in possession in disputed property, as after settlement of property share, the same has been marked in the map as Ka, Kha, Sa, Da. It is also argued that the adjacent land is being used by defendants No. 1 and 2 and they are throughing their garbage on the aforesaid land. It is further alleged that the land is being encroached by the defendants No.1 and 2. The proceeding under section 145 CrPC has been initiated and during the pendency of those proceedings, the defendants No. 1 and 2 have encroached upon the land. Therefore, a civil suit was filed for declaration and for eviction of defendants No. 1 and 2 and for injunction. 3. Written statements have been filed by defendants No. 3 and 4 in favour of plaintiffs. The defendants No. 1 and 2 have filed detailed written statements denied the plaint averments. It has been contended that plaintiffs has wrongly ad-measuring the araji No. 202 and 207 and there are adjoining land and in collision with the defendants No. 3 and 4 have wrongly filed a civil suit. 4. It is further contended that the land in disputed is not the land of the plaintiffs and they have no concern with the aforesaid land. 4. It is further contended that the land in disputed is not the land of the plaintiffs and they have no concern with the aforesaid land. Learned trial Court on the basis of pleadings of parties has framed following issues : **okn iz'u fu"d"kZ 1- D;k oknhx.k foØ; i= fnukad 20-6-84 ds eqrkfcd fooknxzLr Hkwfe esa 1@3 Hkkx ds LokfeRo o vkf/kiR;/kkjh gSa \ gk¡ 2- D;k oknhx.k fooknxzLr Hkwfe ds okni= esa layXu ekufp= ugha ds d] [k] l] n LFkku dk dCtk izfroknh Ø- 1 o 2 ls fjDr vkf/kiR; ikus ds vf/kdkjh gSa \ ugha 3- D;k oknhx.k okni= esa layXu uD'ks ds v] c] l] n LFkku ds laca/k esa LFkkbZ fu"ks/kkKk ikus ds vf/kdkjh gSa \ ugha 4- D;k ?kwjs dh fookfnr txg oknhx.k ds LokfeRo o vkf/kiR; dh gSa \ gk¡ 5- D;k oknhx.k izfroknh Ø-1 o 2 ls okni= esa layXu uD'ks esa nf'kZr ch LFkku ij LFkkfir njokts dks gVok ikus ds vf/kdkjh gSa \ ugha 6- lgk;rk ,oa okn O;;** 5. After considering the oral and documentary evidence on record, the trial Court has finally dismissed the suit vide judgment and decree dated 16.4.2007. 6. Two appeals were filed against the judgment and decree passed by the learned trial Court, one by plaintiffs and another by defendants. Both the appeals, were jointly heard and decided by a common judgment and decree dated 12.5.2010 and the learned appellate Court has set aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court for its decision. Being aggrieved by the judgment of reversal in the first appellate Court dated 12.5.2010, present Misc. Appeal is being submitted before this Court. It is being argued on behalf of the appellants that learned appellate Court has committed a grave error in remanding the matter to the trial Court for its fresh decision without setting aside the findings given by the learned trial Court and as per setelled position of law the learned appellate Court has to record its reasons for remanding the matter. Counsel for the appellant has heavily relied upon the judgments rendered by Hon'ble apex Court in the cases of Municipal Corporation Hyderabad v. Sunder Singh, [ (2008)8 SCC 485 ], H.P. Vedavyasachar v. Shivashankara and another, [ (2009)8 SCC 231 ], P. Purushottam Reddy and Another v. Pratap Steels Ltd.[ (2002)2 SCC 686 ] and Murarilal v. Ram Kumar Ojha and another, [ 2015(1) MPLJ 243 ]. Learned counsel for appellants has further argued that learned appellate Court has further committed error in allowing the application under order 26 rule 9 of CPC and has directed for commission of the land in dispute for the purpose of clarifying the boundaries shares and the area of possession. Learned counsel for appellants further argued that such order cannot be passed and the same amounts to collection of evidence, which is not permissible in view of law laid down by the Hon'ble Court in the case of Chunnilal v. Ramchandra, reported in 2002(1) MPWN 105 . Accordingly, he has prayed for setting aside the judgment and decree passed by First appellate Court and has prayed for remand back to the appellate Court for decision afresh on merits. 7. Per contra, learned appearing counsel on behalf of defendants has supported the judgment and decree and has argued that the judgment and decree passed by the appellate Court was well reasoned order and it has been considered by the appellate Court that commission was required to be issued in challenging for settling the controversy in the matter. He has further argued that learned appellate Court has given ell reasoned order and findings given by the trial Court was set aside. He prayed for dismissal of the present appeal. 8. Heard learned counsel for parties and perused the record appended therein. 9. From perusal of the order passed by the learned trial Court (of which paras 10 to 14 are important), the learned trial Court has found that there is a difference in the measurement of the areas, it is pointed out that araji No. 202 and 207 boundaries are not separated. It is further submitted that in para 11 of judgment of trial Court that owing to the partition 18 hands land ¼izR;sd ds fgLls esa 18 gkFk Hkwfe vk;h½ has come in each share. The plaintiffs witness could not point out the dimension of the land in considering the aforesaid aspect. It is further submitted that in para 11 of judgment of trial Court that owing to the partition 18 hands land ¼izR;sd ds fgLls esa 18 gkFk Hkwfe vk;h½ has come in each share. The plaintiffs witness could not point out the dimension of the land in considering the aforesaid aspect. The learned trial Court, from the plaintiffs evidence it is further found that measurement of the land is done in square feet. The learned trial Court, has arrived at conclusion that it is not clear that how much land is being occupied by or in possession of each of the parties. Because measurement itself is not clear. Even in the sale deed (Annexure P-1) the boundaries are not clear. It is further observed that araji No. 202 , 50% of the land belongs to Atma Ram and Jilledar Singh. There is no partition between Atmaram and Jilledar Singh and who are not being made parties in the litigation. The aforesaid aspect is being admitted by the plaintiffs witnesses PW1 Hari Singh. If case of the plaintiffs is considered then 9 biswa of land was purchased and 1/3 over of the land falls in each of the share. Meaning thereby, 33.74 square feet land should be there in each share, but the plaintiff is claiming his share ad-measuring area 27*105 which comes 8,835 square feet. Thus, the boundaries are not clear, therefore, plaintiffs have failed to prove that defendants No. 1 and 2 have encroached the land in question. 10. The learned appellate Court while reversing the judgment and decree passed by the appellate Court and remanding the matter to the trial Court as not set aside the findings of the trial Court, on the contrary, has allowed the application under Order 26 rule 9 of CPC commission is necessary for findings the shares of each person. The learned trial Court has observed that it is not clear that on how much area of araji No. 202, parties are in possession, therefore, he has directed for issuance of commission. It is a settled position of law that commission application under Order 26 rule 9 of CPC cannot be allowed for commission for collection of evidence. This Court in the case of Chunnilal v. Ramchandra, reported in 2002(1) MPWN 105 has held that “the commission cannot be issued for ascertain actual possession in disputed property. It is a settled position of law that commission application under Order 26 rule 9 of CPC cannot be allowed for commission for collection of evidence. This Court in the case of Chunnilal v. Ramchandra, reported in 2002(1) MPWN 105 has held that “the commission cannot be issued for ascertain actual possession in disputed property. The evidence cannot be collected by the issue of commission. Issue have to be decided by the Court itself on the basis of evidence available on record.” The Hon'ble Court has relied upon the judgment in the case of Babu Khan v. Kapatan Singh [ (1980)2 MPWN 261 ], this Court in the similar circumstances has held as under : “This Court cannot delegate to the Commissioner the The High Court Of Madhya Pradesh trial of any material issue which it is itself bound to try. In other words, a Judge cannot depute to a Commissioner the functions which he can and should discharge himself. When the Court is faced with the problem as to who is in possession of the disputed immovable property, the problem has to be solved by the Court on the basis of the evidence on record” 11. In other case Ashutosh Dubey and another v. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, [ 2004(2) MPHT] 14 has observed in para 5 as under : “…....the scope of Order 26 rule 9, CPC is to ascertain the matter in dispute, market value of any property, mesne profit or damages etc. But issuing of commission for investigating the fact that which of the party is in possession of the property is beyond the scope of Order 26 rule 9 CPC. This question has to be decide by the Court after adducing the evidence by the parties. The Court has to record findings in this regard and the aforesaid job of the Court cannot be shifted to the Commissioner. In the circumstances the trial Court has exceeded his jurisdiction in issuing such a commission ascertaining the fact that which party is in possession of the property.” 12. In the present case, the learned appellate Court has allowed the application for commission just to ascertain the area after partition. The boundaries and in which the area as in host possession. The aforesaid aspect is not permissible because the same amounts to collection of evidence. In the present case, the learned appellate Court has allowed the application for commission just to ascertain the area after partition. The boundaries and in which the area as in host possession. The aforesaid aspect is not permissible because the same amounts to collection of evidence. The learned appellate Court is duty bound to decide the issue on the basis of evidence available on record. Thus, the Court has committed a grave error in allowing the application. 13. As far as the question of remand is concerned, the Hon'ble Supreme Court has held in the case of Municipal Corporation, Hyderabad v. Sunder Singh [ (2008)8 SCC 485 ] as under : “A distinction must be borne in mind between diverse powers of the appellate Court to pass an order of remand. Before invoking the provision regarding remand of a case by the appellate Court under Order 41 rule 23 CPC the conditions precedent laid down therein must be satisfied. Order 41 rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate Court must disagree with the findings of the trial Court on the said issue. Only when a decree is to be reversed in appeal, the appellate Court may if it considers necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate Court. The Court should be loathe to exercise its power in terms of Order 41 rule 23 and an order of remand should not be passed routinely. It is not to be exercised by the appellate Court only because it finds it difficult to deal with the entire matter. It is does not agree with the decision of the trial Court, it has to come with a proper finding of its own. The appellate Court cannot shirk its duties. Thus the scope of remand in terms of Order 41 rule 23 is extremely limited. The suit in this case was not decided on a preliminary issue. Order 41 rule 23 was therefore not applicable. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduced secondary evidence. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.” 14. Order 41 rule 23 was therefore not applicable. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduced secondary evidence. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.” 14. In the case of Murari Lal v. Ram Kumar Ojha and another, 2015(1) JLJ 183 = 2015(1) MPLJ 243 , in which para 11 has held as under : “The scope and nature of jurisdiction conferred on Appellate Court under Order XLI rule 23 and Order XLI rule 23-A, Civil Procedure Code are well settled as observed in the opening part of the order. The ingredients of order XLI, rule 23-A Civil Procedure Code are two fold, firstly; the appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfillment of these two requirements, the provisions of Order XLI rule 23 of Civil Procedure Code can be applied in the matter of remand of the case.” 15. The aforesaid provision laid down by the Hon'ble apex Court it is seen that the first appellate Court has committed error in remanding the matter without holding that the findings given by the learned trial Court are not in accordance with the evidence on record and has not set aside the findings given by the trial Court, and has considered the matter appropriate for retrial. 16. The conditions precedent for applicability of Order 41 rule 23-A should have been clearly mentioned, the first appellate Court should have recorded without retrial in such circumstances, which is not being done in the present case. The appellate Court has committed an error in allowing the application under Order 26 rule 9 CPC and directed for issuance of commission which virtually amounts to collection of evidence. The same is not permissible. 17. Therefore, considering the law laid down by the Hon'ble Supreme Court, the judgments passed by the first appellate Court dated 12.5.2010 is hereby set aside and matter is remanded back to the appellate Court to re-consider the entire case afresh and pass a fresh order. Misc. The same is not permissible. 17. Therefore, considering the law laid down by the Hon'ble Supreme Court, the judgments passed by the first appellate Court dated 12.5.2010 is hereby set aside and matter is remanded back to the appellate Court to re-consider the entire case afresh and pass a fresh order. Misc. Appeal is hereby allowed. No order as to cost. ............