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2004 Supreme(All) 140
2004 (2) AWC 1288
(ALLAHABAD HIGH COURT)
Prakash Krishna, J.
F.A.F.O. No. 936 of 1983
Decided on January 28, 2004
Ram Pratap Lal (D) through L.Rs.
Versus
Jameel and others
Counsel for the Applicant : Amar Nath Bhargava and Ashok Kumar Upadhyay.
Counsel for the Respondents: Kamal Narain Rai.
The main legal point established in the judgment is the principles governing remand orders and the discretion of the appellate court in remanding a case.
Headnote:
plaintiff's appeal - Property Dispute - U. P. Zamindari Abolition and Land Reforms Act - Section 9 - Specific Relief Act - Section 34 - Code of Civil Procedure - Order XXX - Order XLI, Rule 23 - Order XLI, Rule 25
Fact of the Case:
Plaintiff filed suit for permanent injunction against defendants to remove disputed construction and hand pump, claiming ownership and possession of disputed land. Defendants contested, claiming title and use as family graveyard. Trial court decreed in favor of plaintiff, but the decree was set aside by the court below and remanded for re-consideration.
Finding of the Court:
The court found that the trial court's decree was based on sufficient evidence and the remand order was not justified. The court also highlighted the principles governing remand orders and the discretion of the appellate court in remanding a case.
Issues: Ownership and possession of disputed land, identification of land, objections to Commissioner's report, framing of issues, violation of Code of Civil Procedure provisions, and justification for remand order.
Ratio Decidendi: The court emphasized that the appellate court's discretion to remand a case should be guided by sound and reasonable premises, and the remand order should not be arbitrary or without sufficient cause. The court also cited various legal principles and precedents governing remand orders.
Final Decision: The appeal succeeded, the order of remand was set aside, and the case was restored to its original number for fresh decision. The appellate court was given the option to exercise its power under Order XLI, Rule 25 of the Code of Civil Procedure, if necessary.
Prakash Krishna, J.—This is plaintiff’s appeal. Suit No. 386 of 1981 was filed against the present defendant respondents for permanent injunction directing them to remove the disputed construction shown by letters GHIJ and MLK and hand Pipe and the trees sown by them and restored back the possession of the plaintiffs over the disputed land.
2. It was pleaded that the plaintiff is owner in possession of a house described by letter ‘X’ and ‘Baithaka’ described by letter ‘Z’ in the map annexed with the plaint. The land towards west of the Baithaka described by letter L M C D I J K is the property of the plaintiff and is the land appurtenant to the plaintiff’s house and Baithaka and has been settled with him under Section 9 of the U. P. Zamindari Abolition and Land Reforms Act. He has been in possession of the disputed land since before the abolition of zamindari and using it as a Sahan land for tethering the cattle, etc. The possessive title was also claimed and the plea of adverse possession on the property in question being in possession for the last 20 years was also set up in the plaint. The cause of action is that the defendants have raised construction and installed a hand pump and planted trees. Hence the suit.
3. The suit was contested by the defendant respondents by denying the plaintiff’s title and claiming title themselves. It was further pleaded that the defendants since the time of their ancestor are using the disputed land as their family graveyard and the plaintiff has no right to use the same. The suit is barred by Section 34 of Specific Relief Act.
4. The parties led evidence and seven issues were framed by the trial court on the basis of pleadings. The issue No. 1 was to the effect as to whether the plaintiff is the owner in possession of the disputed land and the things standing thereon. During the pendency of the suit the trial court issued a Commission for spot inspection. The Commissioner submitted his report and prepared a site plan. The plaintiff filed objection to the Commissioner’s report vide paper No. 44C which was supported on affidavit vide Paper No. 45C. The Commissioner’s report 41A, was accepted by the trial court subject to the evidence of the parties.
5. The suit was decreed by judgment and decree dated 21.12.1982 on the finding that the land in dispute was not a graveyard and the plaintiff has been able to prove his ownership and possession over the disputed property. The trial court has further found that the plaintiff is entitled for the decree on the basis of his possession having acquired ownership right. The defendants have failed to prove that the disputed property is their ancestral graveyard. The other issues regarding acquiescence and estoppel, the suit is barred by time, and is hit by Section 34 of the Specific Relief Act, etc. were decided in favour of the plaintiff.
6. The said decree of the trial court has been set aside by the court below in Civil Appeal No. 2 of 1983 by its judgment and decree dated 8.11.1983 and the matter has been remanded to the trial court for re-consideration of the dispute with the direction that the trial court shall decide the objections filed to the Commissioner’s report first and thereafter afford proper opportunity to the parties to produce evidence and then decide the suit within a period of three months. Challenging the aforesaid order of remand present appeal has been filed by the plaintiffs.
7. Heard learned counsel for the parties and perused the judgment of the Courts below.
8. Learned counsel for the respondent has summarised the grounds on which the order of remand is founded. They are as follows :
(1) The land in dispute is not identifiable.
(2) The trial court has not followed the earlier directions given by the District Judge in Misc. Appeal No. 181 of 1981 by order dated 22.1.1982.
(3) The issues were not properly framed by the trial court.
(4) The objections to the Commissioner’s report was not considered.
(5) The jud
