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2018 Supreme(Jhk) 1824
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anil Kumar Choudhary, J.
Upendra Prasad Singh son of Late Jagdanand Prasad Sinha - Appellant
Versus
Smt. Sumitra Devi wife of Prahlad Rai & Ors. - Respondent
M.A. No.300 of 2003
Decided On : 12-10-2018
For the Appellants : Mr. Shree Nivas Roy, Mr. Arun Kr. Srivastava, Adv.
Headnote:
Civil Procedure Code,1908 - Order XLI - Rule 23 - Appointment as a Pleader Commissioner - Claim over plot - Plaintiff acquired suit property appertaining to Plot part of village from by virtue of registered sale deed and after purchase plaintiff came in possession of same- plaintiff constructed a house over a portion of land and rest portion was kept vacant- It further case of plaintiff that one Raj Karan Singh illegally acquired which is adjacent east a collusive title suit which was compromised in 1968- said Raj Karan Singh transferred a portion of defendant by virtue of a registered sale deed and after purchase defendant came in possession of plot bearing It is also case plaintiff that defendant encroached upon land of plaintiff situated adjacent west of property of defendant encroached part of land has been shown in green wash in sketch map attached to plaint- plaintiff protested encroachment but defendant did not remove encroachment –Held, Court is of considered view that first appellate court certainly erred in setting aside entire judgment and decree of trial court and remanded suit back to trial court for purpose of getting encroachment if there is any measured afresh because mandate given to trial court by impugned judgment is also vague as no issue has specifically been framed by appellate court- Further first appellate court certainly erred by giving its finding on issue when was setting aside judgment and decree and remanding suit back to trial court- It is certainly duty of first appellate court when suit is not disposed of on a preliminary point to deal appeal on its own merit by making any independent appreciation of evidence in record fact that first appellate court did believe testimony of one or other witness or one or other document is certainly is not a ground for appellate court not doing its own duty of disposing appeal on its own merit and remand it and amounts merely to shifting work of first appellate court to somebody else- Hence I am of view that impugned judgment is bad in law and is fit to be set aside impugned Judgment and decree passed by Additional Judicial Commissioner Ranchi in Title Appeal by first appellate court is set aside- Title remanded back to first appellate court with a direction to dispose of appeal on its own merit- It made clear that this Court has not expressed any opinion on merits of any of issues involved in suit- Keeping in view appeal is a year old one first appellate court will do well to dispose of appeal expeditiously preferably within a period of six months from date of receipt of this judgment- In result this appeal is allowed but in circumstances without any costs - Appeal allowed
JUDGMENT :
Heard learned counsel for the appellants.
2. The appellants have filed this appeal being aggrieved by the Judgment and decree dated 24.03.2003 passed by the Additional Judicial Commissioner, Ranchi in Title Appeal No.25 of 1995 whereby and where under the learned court below has set aside the judgment and decree of the trial court and remanded the suit back to the learned trial court for getting encroachment, if any, measured afresh and also for adjudicating the controversy as per the provision of law.
3. The case of the plaintiff in brief is that the plaintiff acquired the suit property appertaining to Plot no. 799, Khata No.207 part of village Sirarawn from Ram Sewak Pandey by virtue of the registered sale deed dated 22.06.1966 and after purchase, the plaintiff came in possession of the same. The plaintiff constructed a house over a portion of the land and the rest portion was kept vacant. It is the further case of the plaintiff that one Raj Karan Singh illegally acquired plot No.798 which is adjacent east to the plot No.799 by a collusive title suit which was compromised in 1968. The said Raj Karan Singh transferred a portion of plot No.798 to the defendant by virtue of a registered sale deed dated 30.09.1980 and after purchase, the defendant came in possession of the plot bearing plot No.798. It is also the case of the plaintiff that the defendant encroached upon the land of the plaintiff situated adjacent west of the property of the defendant in October, 1980. The encroached part of the land has been shown in green wash in sketch map attached to the plaint. The plaintiff protested the encroachment but the defendant did not remove the encroachment. The plaintiff sent notices through his lawyer to the defendant still the defendant did not remove the encroachment.
4. The case of the defendant, on the other hand is that the plaintiff has no title over any portion of the suit land. The vendor of the plaintiff- Ram Sewak Pandey had never any title or possession over any portion of the suit property. Hence, no right or title has accrued to the plaintiff by the sale deed executed by Ram Sewak Pandey in favour of the plaintiff. Raj Karan Singh- the vendor of the defendant, before the alleged acquisition of the land by the plaintiff constructed a residential house on an area of about 0.07 acre of plot No.798 towards its southern side and had enclosed the same by a boundary wall all around including the land in south within the knowledge of all concerned in or about the year 1968 without any objection from any quarter and remained in sole and exclusive possession thereof till the same was sold to the defendant by virtue of sale deed dated 01.10.1980. Raj Karan Singh acquired title over the lands by long and continuous adverse possession which was duly acknowledged and recognized by a compromise in Title Suit No.1450 of 1967 of the court of Munsif, Ranchi. It was denied by the defendant that the said suit was a collusive one or that a compromise decree passed in the suit was illegal or in contravention to the provision of law. It was asserted by the defendant that the defendant has all along been in possession of the land right from the date of its purchase without any obstruction from any quarters and the sketch map showing the alleged encroached portion of the land in green wash was an imaginary one.
5. On the basis of the rival pleadings of the parties, learned court below framed the following issues:-
I. Has the plaintiff any valid cause of action for the suit?
II. Is the suit as framed, maintainable?
III. Is the suit barred by law of limitation, waiver, acquiescence, estoppel?
IV. Is the suit barred by law of adverse possession?
V. Has the plaintiff or his vendor any title over the suit land?
VI. Has the defendant made any encroachment over suit land belonging to plaintiff?
VII. Whether the plaintiff is entitled to a decree as prayed for?
VIII. To what other relief or reliefs the plaintiff is entitled to?
6. The learned trial court
