Point of Law: In view of the nature of the dispute between the parties as regards the demarcation of the disputed land and the High Court having not addressed that issue by appointment of a local Commission for demarcation of the suit land, remanded the matter to the High Court to decide afresh the second appeal.

JUDGMENT :

1. Heard Mr. S Sahu, the learned counsel appearing on behalf of the petitioner. Also heard Mr. S Biswas, learned counsel appearing on behalf of the respondents no. 1(i), 1(ii), 1(iii) and 1(v).

2. The instant application under Article 227 of the Constitution of India is filed challenging the order dated 27.11.2018 passed in Misc (J) Case No. 217/2018 arising out of Title Suit No. 28/1997. For the purpose of appreciating the question in controversy, it would be relevant to take note of the following facts which arises.

3. The plaintiff had filed a suit registered and numbered as Title Suit 28/1997 whereby the plaintiff sought for his right, title and interest over the suit land and also for recovery of khas possession and for mesne profit etc. It is the case of the plaintiff that the suit land is the land that he had purchased by the registered sale deed no. 1122 in the year 1996. It is the further case of the petitioner as plaintiff that pursuant to the purchase of the suit land, the defendant no. 1 filed a proceeding under Sections 145/146 of Code of Criminal Procedure (CrPC) in respect to the suit land wherein the suit land was attached. Subsequent thereto, a revision was filed under Section 397/399 of Code of Criminal Procedure before the Sessions Judge, Sonitpur, Tezpur and the said order of attachment was stayed. Thereupon, when the plaintiff took steps for ploughing in the suit land, the defendant disturbed the same. Consequently, the suit was filed claiming the reliefs as aforementioned. The defendant no. 1 filed his written statement to the plaint wherein in paragraph 4 it was specifically mentioned that no proceeding under Section 145 of the CrPC was instituted in respect to the suit land and the same was never attached under Section 146.

4. Pursuant to the issues being framed, evidence being led, the said suit was dismissed by the judgment and decree dated 30.09.2000.

5. Being aggrieved, the petitioner herein filed an appeal before the Civil Judge, Tezpur, Sonitpur and the said appeal was also dismissed by the judgment and decree dated 13.12.2006.

6. Thereupon, an appeal was preferred before this Court under Section 100 of the Code of Civil Procedure. The said appeal was registered and numbered as RSA No. 35/2007. This Court vide its judgment and order dated 15.02.2017 set aside the judgment and decree of the first Appellate Court for non-compliance to the provisions of Order XLI Rule 31 of the Code of Civil Procedure and remanded the appeal for rehearing in terms with the provisions of Order XLI Rule 31.

7. In this regard, paragraphs 16, 17 and 18 being relevant is quoted herein-below:

“[16] Perused the case record and the judgment and decree passed by both the courts below, the findings arrived by the trial court as already discussed hereinabove. On the other hand, the first appellate court instead of discussing the issues so framed failed to consider the same and decided on its own. The Hon’ble Apex court in a catena of decisions had held that the provision of Order XLI Rule 31 of the CPC has to be complied with by the first appellate court. The first appellate court being the final court of facts has the responsibility to appreciate the findings on record in its proper perspective and should give its independent judicious view, but in the present case in hand, the first appellate court without any discussion of issues independently/ simply narrated the findings of the trial court without any discussion of the evidence of witnesses on record and the exhibits thereof. The first appellate court simply came to the finding that as the plaintiff never enters the witness box, there is no merit in the suit. However, there was evidence on record of the father of the plaintiff. It is true that a person who is party to the suit has a duty cast upon him to appear as a witness so that other side could test the veracity of the pleadings made by the said party. But that cannot be sole ground in rejecting the other piece of e