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2023 DIGILAW 159 (JK)

Rifat Ara (Dr. ) v. S. Karan Singh Raina

2023-04-25

PUNEET GUPTA

body2023
JUDGMENT : Puneet Gupta, J. (Through Virtual Mode Srinagar) 1. The present Civil first Miscellaneous Appeal is filed by the appellants against the judgment passed by the Court of learned Additional District Judge, Jammu, whereby the appellate court set-aside the judgment and decree passed by the trial Court and remanded the case back to the trial Court for deciding the issue No. 3 along with other issues after taking evidence. The appellants herein were defendants before the trial Court. The respondent-plaintiff is represented through his counsel. 2. Mr. V.R. Wazir, learned senior counsel appearing on behalf of respondent-herein had raised a preliminary issue of the maintainability of the present appeal. The learned senior counsel has submitted that the present appeal is misconceived as only Civil Second Appeal on substantial question of law could be filed as the judgment of the appellate court is passed in the First Appeal filed against the judgment and decree passed by the trial Court. 3. Mr. R.A. Jan, learned senior counsel appearing for the appellants has contested the argument of respondent by submitting that the present appeal is maintainable for the reason that the appellate court has only remanded the matter back to the trial Court and has not otherwise decided the appeal which can be said to be judgment and decree in terms of Order 41 Civil Procedure Code though the appellate court has directed for preparation of decree sheet in the appeal. 4. The argument of learned counsel for the respondent herein need not detain this Court for long as the reply to the issue of maintainability raised by the respondent gets answered by the judgment passed by this Court in the case titled Bindroo v. Badri Nath reported in AIR 2006 J&K 36 . In this case the appellate court had remanded the suit back for retrial after framing the issues afresh as per the pleadings of the party. This court held that the judgment of the First Appellate Court cannot be treated as decree and, therefore, the Civil Second Appeal in terms of Section 100 Civil Procedure Code does not lie. The court also held that the appeal filed against the remand order passed in appeal will not lie as a matter of right unless it raises question of law as is enumerated in Section 100 CPC. The court also held that the appeal filed against the remand order passed in appeal will not lie as a matter of right unless it raises question of law as is enumerated in Section 100 CPC. Thus, the argument raised by the respondent herein that the appeal itself is not maintainable as Second Appeal is only maintainable in the present case against the judgment passed by the First Appellate Court is without any force. 5. The court has yet to determine whether any substantial question of law arises, which may persuade this court to set-aside the remand order passed by the First Appellate Court. 6. The factual aspects of the case, in short, are required to be detailed out before the present appeal is finally decided. The respondent-plaintiff filed a suit with the averments that he is in possession of the land measuring 33 Kanals and 5 Marlas falling under Khasra No. 831 situate at Chowadi Tehsil, Jammu, which came into his possession by way of Settlement Deed executed between Vijay Kumar S/o Krishan Lal. The defendants are interfering with the land of the plaintiff, which is adjacent to the land of the defendants, which they claim to have purchased to the extent of 3 Kanals and 5 Marlas but falling under Khasra No. 941. As the defendants are interfering into the suit land and intend to forcefully disturb the plaintiff from his land, they should be restrained from interfering in the land possessed by the plaintiff. The defendants appeared before the trial Court and filed the written statement. In their statement, the defendants stated their possession in 3 Kanals and 5 Marlas of land and denied the contention of the plaintiff that they were interfering with the plaintiff's land. It appears that during the pendency of the suit before the trial Court an order was passed by the trial Court whereby the application filed by the defendants for the appointment of Commissioner for local investigation was dismissed. It appears that during the pendency of the suit before the trial Court an order was passed by the trial Court whereby the application filed by the defendants for the appointment of Commissioner for local investigation was dismissed. In the Revision Petition filed by the defendants before this Court bearing Civil Revision Petition No.35/2009, the court vide order dated 05.06.2009 set-aside the order of the trial Court dated 22.01.2009, whereby the application of the defendants was dismissed and directed the trial Court to appoint a local Commissioner in whose supervision the demarcation of land will be conducted by the Joint Agrarian Reforms Commissioner, Jammu in pursuance to the directions dated 24.08.2006 issued by the Financial Commissioner (Revenue). It may be noted herein that earlier two reports were available regarding the demarcation of the land conducted by two different revenue agencies. The trial Court dismissed the suit of the plaintiff on the basis of the demarcation report given by the Commissioner appointed by the trial Court and also after propounding legal position on the basis of documents which were on record. The plaintiff was held to be not in possession of the land in question. The preliminary issue was thus decided against the plaintiff holding that the suit is not maintainable. The appeal was preferred against the judgment and decree dated March 5, 2013, passed the trial Court. The appellate Court vide order dated 28.11.2013 set aside the order of the trial court and held that the issue decided by the trial Court could not be treated as preliminary issue as the same is a mixed question of fact and law and, therefore, directed the trial Court while remanding the matter, to decide issue No. 3 along with other issues after taking evidence. The issue No. 3 reads as under:- “Whether the suit is not maintainable for the reason that plaintiff is out of possession and has not sought the relief of possession? OPD. 7. At this stage, the Court would again like to revert to the judgment of Bindroo v. Badri Nath (supra) wherein it was held by this Court that the appeal in terms of Order 43 Rule 1(u) will not lie unless the order satisfied the conditions mentioned in Order 43 Rule 1(u) CPC. It is in the light of the aforesaid judgment of the Court that the present appeal is required to be considered. It is in the light of the aforesaid judgment of the Court that the present appeal is required to be considered. The Court is of the considered opinion that the order passed by the First Appellate Court does not require any interference by this Court as no substantial question of law as commanded under Order 43 Rule 1(u) stands out in the present appeal against the order passed by the First Appellate Court. 8. The argument of learned counsel appearing for the appellants herein that the report of the Commissioner clinched the issue in favour of the appellants as the respondent-plaintiff did not object to the report of the Commissioner which favoured the appellants-defendants and, therefore, the findings of the trial Court holding that the plaintiff being not in possession of the suit property and, therefore, the suit is not maintainable cannot be countenanced in the present facts and circumstances of the case. The First Appellate Court thrashed the issue regarding the possession of the plaintiff in the suit property qua the report of the Commissioner and the legal position also. The appellate Court after taking into consideration all the facts and circumstances of the case has held that the issue of possession is a mixed question of fact and law, and therefore the preliminary issue could not be decided on the basis of the report of the Commissioner and the evidence was required to be recorded qua the possession of suit property. 9. The trial Court has discussed the documents that are on file and the report of the Commissioner to hold that the plaintiff is not in possession of the suit property and, therefore, the suit for injunction does not lie but this Court is of the opinion that aforesaid view could not be the reason to hold that the suit is not maintainable. The court finds no error in the finding of the appellate Court that the question of possession mixed question of fact and law which is required to be taken up along with other issues. The court is of the opinion that no substantial question of law arises in appeal in hand. 10. In view of the above, the Court finds no reason to set-aside the order impugned in the present appeal. The court is of the opinion that no substantial question of law arises in appeal in hand. 10. In view of the above, the Court finds no reason to set-aside the order impugned in the present appeal. The appeal is thus devoid of merit as the conditions required for filing the appeal in terms of Order 43 Rule 1(u) are not met in the case in hand and the case of the present appellant is not covered by the principle laid down in Bindroo v. Badri Nath (supra). The appeal is without any substance and is, accordingly, dismissed. 11. The parties are directed to appear before the Court of learned 2nd Additional Munsiff, Jammu on 18.05.2023.