The main legal point established in the judgment is that a remand should not be ordered if there is sufficient evidence on record to dispose of the suit finally.

JUDGMENT :

J.J. MUNIR, J.

1. This is a plaintiff’s appeal arising out of an order of remand passed by the Lower Appellate Court setting aside the decree made in the suit and ordering a fresh trial, upon Issue No. 1.

2. Original Suit No. 194 of 2001 was instituted by Mohd. Raseed Khan against the Nagar Palika Parishad and the Executive Engineer of the said Nagar Palika, arrayed as the two defendants, claiming a permanent prohibitory injunction to the effect that the defendants be restrained from taking possession of and demolishing the existing constructions or otherwise interfering in the plaintiff’s peaceful possession of Plot No. 1897 (minjumla), the boundaries whereof are set out at the foot of the plaint and situate in Mauza Dadiapura, Andar Sagar Khidki, Jhansi.

3. The facts in brief leading to the action are:

The plaintiff claims to be the zamindar-owner in possession of Arazi No. 187, admeasuring 0.202 hectares, boundaries whereof are set forth at the foot of the plaint and bearing Khata Khewat No. 1/2, Mohal Shamlaat, Mauza Dadiapura, Andar Sagar Khidki, Jhansi, which is popularly known as ‘Jogiana’. The said property shall hereinafter be referred to as ‘the suit property’. According to the plaintiff, the suit property houses a shop vending grit, stones etc., described as Patthar Ki Taal Dukaan, a thatched roofed structure described as a ‘tapra’ and a house etc. The suit property is located in the midst of a populated area. A part of the suit property was encroached upon by one Ghanshyam unlawfully, who raised some construction thereon. The plaintiff instituted O.S. No. 572 of 1995 against Ghanshyam for the relief of mandatory injunction, ordering the encroacher to remove his wall and tin-shed/encroachments and upon failure to do so, cause its removal through the process of Court. The suit aforesaid came to be decreed vide judgment and decree dated 06.03.1999 passed by the Civil Judge (Jr. Div.) Jhansi. Some local mafiosi then attempted to grab the suit property that led the plaintiff to institute O.S. No. 59 of 2001 in the Court of the Civil Judge (Sr. Div.) Jhansi against Vishnu Garg, seeking a permanent injunction restraining the defendant of that suit and his associates from forcibly occupying the suit property, carving plots out of it, raising constructions thereon or selling it out to third parties. The learned Civil Judge vide his order dated 22.01.2001 passed an order of ad interim injunction directing parties to maintain status quo. This led persons, whose designs had been thwarted to forcibly occupy the suit property, to cause the employees of the Nagar Palika mala-fide and the elected representatives there, by offering them the allurement of political support, to join them in the enterprise of dispossessing the plaintiff from the suit property and demolishing his construction.

4. It is the plaintiff’s case that the defendants, that is to say, the Nagar Palika Parishad are neither the owner nor in possession of the suit property. However, defendant No. 2, acting in concert with the private encroachers, caused a notice to be issued under the Uttar Pradesh Municipalities Act, 1916 (for short ‘the Act of 1916’) requiring the plaintiff to remove his constructions within three days and further saying that in the event of default, it would be demolished by force. It is pleaded by the plaintiff that the notice is absolutely bad, illegal and without jurisdiction, which does not oblige the plaintiff. But, if acting on the notice, the constructions standing on the suit property were demolished and construction of a park etc. done, the plaintiff would suffer irreparable loss and injury. Accordingly, the plaintiff instituted the present suit claiming exemption from the requirement of serving a notice under Section 326 of the Act of 1916.

5. A written statement was filed on behalf of the defendants on 02.04.2002, where Paragraph No. 1 of the plaint was not denied. In the additional pleas, it is averred that in the survey plan of