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2020 DIGILAW 279 (ALL)

Manokamini Devi v. Ashok Kumar

2020-01-24

RAJNISH KUMAR

body2020
JUDGMENT : RAJNISH KUMAR, J. 1. Heard, Shri Prashant Jaiswal, Advocate holding brief of Shri N.N. Jaiswal, learned counsel for the appellant and Shri Ran Vijai Singh, learned counsel for the respondents. 2. This First Appeal From Order has been filed challenging the judgment and order dated 17.10.2001, passed in Regular Civil Appeal No. 57 of 1993, Manokamini Devi vs. Ashok Kumar. 3. The appellant had filed a Regular Suit No. 450 of 1987 for mandatory injunction before the Munsif, Barabanki alleging therein that the plot no. 158 situated in village Chakkazipur, Pargana and Tehsil-Fatehpur, District-Barabanki was belonging to Smt. Rani Kaneez Ali which was her bhumidhari holding. She had partitioned this plot into five smaller plots and sold those plots to different persons. The plaintiff-appellant had purchased one of these plots of Khasara No. 158, which is depicted in the site plan as 1-B. It was purchased through a registered sale deed dated 17.09.1977 and the possession was also obtained. According to the plotting scheme of Smt. Rani Kaneez Ali there were three plots i.e. 3, 4 and 5 on the northern side and plot nos.1 and 2 on the southern side and there was a 20 feet road in between them. The defendant-respondent had purchased plot nos. 3, 4 and 5 depicted in the site plan. The defendant had started encroaching the road in between the plot nos.1 and 2 on one side and 3, 4 and 5 on the other side on points A, B, C and D depicted in the site plan. The appellant tried to stop the defendant but he did not stop and raised a wall of 50 feet long and 5 feet high, therefore the suit was filed. 4. The respondent-defendant had filed written statement and cross objection with a prayer for permanent injunction alleging therein that the appellant and respondent have purchased half-half portion of the road in between the plots and paid Rs. 500/- each to Smt. Rani Kazeez Ali and he tried to raise some construction on his portion. Accordingly 10 feet out of the 20 feet road is of the defendant-respondent out of which 5 feet land has been encroached by the plaintiff-appellant. 5. On the basis of the pleadings of the parties five issues were framed. 500/- each to Smt. Rani Kazeez Ali and he tried to raise some construction on his portion. Accordingly 10 feet out of the 20 feet road is of the defendant-respondent out of which 5 feet land has been encroached by the plaintiff-appellant. 5. On the basis of the pleadings of the parties five issues were framed. After evidence the suit for mandatory injunction of the plaintiff-appellant was decreed in her favour and the defendant-respondent was directed to remove the encroachment. The counter claim of the defendant-respondent was also allowed and the plaintiff-appellant was directed to remove the construction. The suit was decreed by means of the judgment and order dated 02.09.1993. The judgment and order passed by the trial court was assailed by the plaintiff- appellant by filing a regular Civil Appeal in the court of District Judge, Barabanki. In the appeal also cross objection was filed by the respondent. 6. After considering the pleadings of the parties learned appellate court found that it is not in dispute that both the parties have purchased their plots in question from Smt. Rani Kaneez Ali and it is also not in dispute that the lay out plan in regard to the concerned plots in question were annexed with the sale deed. However the appellate court found that on measuring the Map prepared by the Commissioner on the basis of measurement of 1 cm. = 10 feet the position of the spot in question is not correct and the distance shown between the different points is not correct and there is difference. On account of these discrepancies the learned appellate court found that the position of the spot is not clear therefore it cannot be ascertained as to how much of area has been encroached and the constructions have been raised by the parties. Therefore, without ascertaining the correct position of the spot the correct conclusion cannot be drawn. The learned appellate court disposed of the appeal and remanded the matter to the trial court with direction to get the issues disposed of after getting the correct Map of the site prepared. However, the judgment passed by the learned trial court has not been set aside. Hence the present appeal has been filed by the plaintiff-appellant. 7. The learned appellate court disposed of the appeal and remanded the matter to the trial court with direction to get the issues disposed of after getting the correct Map of the site prepared. However, the judgment passed by the learned trial court has not been set aside. Hence the present appeal has been filed by the plaintiff-appellant. 7. Submission of learned counsel for the appellant was that the learned appellate court has wrongly and illegally remanded the case without setting aside the judgment and order passed by the trial court on the ground that the report of the Commissioner as per the scale given is not correct while commissioner's report was never challenged by any of the parties either before the trial court or before the appellant court. Even then if the appellate court was of the view that the commissioner's report was wrong the appellate court could have called for a fresh commissioner's report and decided the appeal accordingly on its merit. The learned appellate court has wrongly and illegally on the basis of some minor mistake in the commission report has ignored the relevant documentary and oral evidence adduced by the parties and avoided the admitted facts with regard to the 20 feet road. Therefore the impugned judgment is not sustainable and is liable to be set aside. Learned counsel for the appellant has relied on Ram Bali Singh and Others vs. Ram Sakal, 1990 (8) LCD 282 and H.V. Vedayvasachar vs. Shivshankara and Another, 2010 (1) AWC 110 (SC). 8. On the other hand learned counsel for the respondents had submitted that the appellate court has rightly remanded the case because once it was found that the commissioner's report was not correct the alleged encroachment made by the respondent which come to 9 feet in place of 14.6 feet and the distance between the plots of the appellant and the respondent will reduce from 20 feet. 9. I have considered the submissions of learned counsel for the parties and perused the record. 10. The facts regarding purchase of plots by the parties from Smt. Rani Kaneez Ali and road of 20 feet in between the plots are not in dispute. The filing of Regular Suit for mandatory injunction by the plaintiff-appellant and cross objection claiming permanent injunction by the respondent with a prayer for removal of the encroachment by the parties are also not in dispute. The filing of Regular Suit for mandatory injunction by the plaintiff-appellant and cross objection claiming permanent injunction by the respondent with a prayer for removal of the encroachment by the parties are also not in dispute. The regular suit as well as the cross objection were allowed. Therefore, the Regular Civil Appeal was filed by the plaintiff-appellant and cross objection was filed by the defendant-respondent. 11. The short question for consideration by this court is as to whether the commissioner's report which was never objected by either of the parties could have been discarded by the learned appellate court and on account of some discrepancies in the commissioner's report the matter could have been remanded to the trial court without setting aside the judgment and order passed by the trial court. 12. It is not in dispute that no objections were filed by either of the parties against the commissioner's report. However, if the learned appellate court has found that on the basis of scale of 1 cm. = 10 feet, on which the map was prepared by the commissioner, the correct position of the land in question and encroachment thereon could not be ascertained and the correct conclusion can not be drawn, the learned appellate court has not committed any illegality or error in not accepting the report. The learned counsel for the appellant has also failed to disclose any discrepancy in the findings recorded by the learned appellate court in regard to the commissioner's report except that no objection was filed. Therefore, now the question arises as to whether the learned appellate court should have decided the appeal after calling a fresh commissioner's report or could have remanded the matter. 13. It is settled proposition of law that the powers of the appellate court and those of trial court are co-extensive and the learned appellate court had therefore power to get the survey map prepared. Once the appellate court has power to get the survey map prepared the remand only for the purpose of getting the survey map prepared may not be a good ground. This court in the case of Ram Bali Singh and Others vs. Ram Sakal (Supra) has held so and with the consent of the parties remanded the matter to the appellate court with direction to decide the controversy himself after getting the requisite map prepared. This court in the case of Ram Bali Singh and Others vs. Ram Sakal (Supra) has held so and with the consent of the parties remanded the matter to the appellate court with direction to decide the controversy himself after getting the requisite map prepared. But in the present case the learned appellate court has not only directed to get the map prepared but has also directed to dispose of the issues on the basis of the map after determination of distance from Mahmoodabad-Ram Nagar road to the shops and the distance of the house of the appellant, width of the road in dispute on spot and the nature of area of encroachment because on the basis of the commissioner's report it could not be ascertained. 14. The Hon'ble Apex court in the case of H.V. Vedavyasachar vs. Shivshankara and Another (Supra) has held that the order of remand can only be passed in terms of Order XLI Rule 23, Order XLI Rule 23A, Order XLI Rule 25 of the Code of Civil Procedure and on finding that none of the said provisions have any application in that case modified the order passed by the High Court and directed the learned trial court to remit the matter to the appellate court after recording the evidence as directed by the High Court within the time provided and thereafter directed the first appellate court to dispose of the appeal on receipt of the order and the evidence within the time provided keeping in view the fact that the appellant was dispossessed as far back as in 1993. 15. In the present case the appellate court came to the conclusion that for recording the correct conclusion the position of the spot is essential and in absence thereof no conclusion can be drawn and remanded the matter to the trial court to get the correct map prepared and thereafter dispose of the issues but neither set aside the judgment nor directed to the trial court to return the findings and reasons therefor. 16. 16. Order XLI Rule 25 of the Code of Civil Procedure 1908 provides that to determine any question of fact which appears to the appellate court essential to the right decision of the suit upon the merits, the appellate court 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 the appellate court shall direct such court to take an additional evidence required and such court shall proceed to try such issues and shall return the evidence to the appellate court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate court or extended by it from time to time. Rule 25 of Order XLI of the Code of Civil Procedure 1908 is extracted below:- “25. Where appellate Court may frame issues and refer them for trial to Court whose decree appealed from-Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court 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 shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time].” 17. In view of above it appears that the learned Appellate court has remitted the matter to the trial court to call a correct report and return the same together with its findings thereon and the reasons therefor to the appellate court so the correct conclusions may be drawn and the appeal may be decided on merit therefore the order passed by the trial court has not been set aside. But instead of fixing any time has disposed of the appeal which could not have been done by the appellate court. But instead of fixing any time has disposed of the appeal which could not have been done by the appellate court. The Hon'ble Apex in the case of Bachahan Devi and Others vs. Nagar Nigam, Gorakhpur and Others, (2008) 12 SCC 372 has held in paragraphs 9 and 10 as under:- “9. Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows: “As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word "may" has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings relating to said legal and factual issues after itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable in the present matter.” 10. A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression may. But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others vs. Kurimeti Ayyappa, 1975 (4) SCC 458 , where it was inter-alia observed in para 5 as follows: “We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul vs. Sat Narain Shukul, AIR 1923 All 384.” 18. In view of above, this court is of the view that the judgment and order passed by the appellate court is liable to be modified to the extent that the trial court after getting the correct map prepared record its findings on the issues and the reasons therefor and send the same to the appellate court so that the appellate court may decide the appeal on merit. It would also be appropriate because the Regular Suit is of the year 1987 and Regular Civil Appeal of the year 1993. The appeal is accordingly partly allowed and the judgment and order dated 17.10.2001 passed in Regular Civil Appeal No. 57 of 1993 stands modified to the extent indicated above with the following directions:- 1. It would also be appropriate because the Regular Suit is of the year 1987 and Regular Civil Appeal of the year 1993. The appeal is accordingly partly allowed and the judgment and order dated 17.10.2001 passed in Regular Civil Appeal No. 57 of 1993 stands modified to the extent indicated above with the following directions:- 1. The learned Trial Court, after receiving record shall call report of the commissioner with the correct map of the spot and thereafter after recording its findings and reasons therefor in accordance with law as directed by the appellate court, shall send the record alongwith its findings and the reasons therefor to the appellate court expeditiously and preferably within a period of three months from the date of receipt of the record. 2. After receipt of the findings and reasons therefor from the trial court alongwith the record, the appellate court shall decide the Regular Civil Appeal No. 57 of 1993 in accordance with law on merit expeditiously and preferably within a period of three months from the date of receipt from the trial court. 19. The appeal is, accordingly, partly allowed with the aforesaid directions. No order as to costs. 20. The lower Court record shall be remitted to the concerned trial court forthwith.