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2019 DIGILAW 668 (HP)

Mahajan Ram v. Prakash Chand

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The plaintiffs' suit for rendition of a decree for permanent prohibitory injunction, and, for rendition of a decree for mandatory injunction, vis-a-vis, the suit khasra number, hence, stood decreed by the learned trial Court. However, the aggrieved defendant/respondent herein, carried an appeal therefrom, before the learned First Appellate Court, and, the latter Court proceeded to remand the lis to the learned trial Court. 2. Be that as it may, the rendition, of, the afore affirmative decree, upon, the plaintiffs' suit, by the learned trial Court, rather stood hinged, upon, a report of the Local Commissioner, embodied in Ex.PW1/A, and, obviously therein elucidations, were borne, vis-a-vis, the defendant, hence, making encroachment (s), upon, the suit khasra number, in the area (s) enumerated therein. However, the learned First Appellate Court, upon, being seized, with Civil Appeal No. 42 of 2015, as stood preferred therebefore, by the aggrieved defendant, rather though the impugned order, made, a, direction, of, remand of the lis, to the learned trial Court, on anvil of (a) the objections preferred, vis-a-vis, the report of the local commissioner, by the defendant/respondent No.1 herein neither being pronounced to be accepted or rejected, (b) and, for want of an adjudication being meted thereon, it, hence concluded qua the issue appertaining, to the afore factum, rather enjoining the making, of, an order of remand, vis-a-vis, the learned trial Court. 3. Even though, the afore order of remand, is, a limited remand, and, also hence, is, an issue based remand, and, consequently, it is not construable, to be a wholesale remand, for hence this Court, concluding that the impugned order of remand, is ingrained, with, any pervasive vice of, any, infallibility. Nonetheless, the afore reason, as stand meted, by the learned First Appellate Court, to remand the lis to the learned trial Court, is, yhet gripped with a vice of fallibility (i) as a reading of the verdict, rendered by the learned trial Court, makes upsurging, qua all objections appertaining to the purported invalidity, of the report of the local commissioner, rather being recoursed by the aggrieved defendant, recoursings whereof are comprised, in, qua in consonance therewith, hence suggestions being meted to the local commissioner concerned, upon, the latter stepping into the witness box, as PW-1. Since, all the afore suggestions, stood dispelled, by the witness concerned, who is also the author, of Ex.PW1/A, (ii) thereupon, the learned trial Court prima facie, made a conclusion, qua the afore suggestions, not dwindling the might, and, clout of echoigns, made by the local commissioner, in his report, borne in ex.PW1/A. Since, the afore recoursings, were prima facie repelled by the learned trial court, thereupon, there was no necessity for the learned trial Court, to proceed to make a separate order, upon, the objections reared, by the defendant, to the report of the local commissioner, nor want of any decision being made thereon, prima facie renders the verdict of the learned trial Court, to be ingrained with any pervasive vice of any infallibility nor hence the impugned order of remand, as, recorded on the afore anvil, can hence be validated. 4. For the reasons recorded hereinabove, the instant appeal is allowed, and, the order of remand, impugned before this Court is set aside. The learned First Appellate Court is directed to re-register the appeal, on its record, and, decide the same on merits. The afore exercise shall be completed with six weeks from today. The parties are directed to appear before the learned First Appellate Court on 20th June, 2019. Records be sent back forthwith. All pending applications also stand disposed of. However, the observation made hereinabove, shall have, no bearings on the merits of the case.