IMPORTANT POINT
The appellate court must decide cases based on available evidence and cannot remand without necessity, as doing so prolongs litigation without serving justice.

JUDGMENT :

Rajnish Kumar, J.

1. Heard Shri Rajesh Kumar, learned counsel for the defendant/appellant and Shri Kaushal Tiwari, learned counsel for the plaintiff/respondent.

2. This first appeal from order has been preferred under Order XLI Rule 1(u) of Civil Procedure Code, 1908 (hereinafter referred to as "C.P.C.") against the judgment and order dated 10.02.2022 passed in Civil Appeal No. 11 of 2021; Harilal vs. Jamuna Prasad by District Judge, Ambedkar Nagar, by means of which the appeal filed by the plaintiff/respondent has been allowed and judgment and order dated 05.12.2019 passed in Regular Suit No. 476 of 1997; Harilal vs. Jamuna Prasad by Civil Judge, Junior Division, Ambedkar Nagar has been set aside and the case has been remanded to the trial court to decide afresh in accordance with law and the observations made in the same.

3. Learned counsel for the appellant submits that the first appellate court has wrongly and illegally allowed and remanded the matter for deciding afresh, whereas all the pleadings, evidence and material on record were before the first appellate court and the first appellate court has recorded findings on the basis of material on record and remanded the matter only on the ground that the evidence has properly not been appreciated, while the first appellate court has to decide the appeal considering the pleadings, evidence and material on record as trial court and it could have decided the case finally instead of reminding the matter. Thus, Learned counsel for the appellant submits that the impugned judgment and order is not sustainable in the eyes of law and is liable to be set aside and the matter may be remanded to the first appellate court to decide the appeal on merit in accordance with law. He relies on Shivakumar and others vs. Sharanbasappa and others; 2020 AIR(SC) 3102/2020 LawSuit(SC) 345.

4. Per contra, learned counsel for the respondent submits that learned first appellate court has rightly remanded the case in accordance with law to decide the suit afresh because the learned trial court has failed to properly appreciate the pleadings, evidence and material on record and the law laid down by the Hon'ble Apex Court and this Court. He further submits that the learned trial court has also failed to consider the report of the commissioner and the site plan prepared, which were on record, therefore, there is no error or illegality in the impugned judgment and order. However, he could not dispute that all the pleadings, evidence and commission report etc. were on record and the first appellate court could have passed the final order after considering the same.

5. I have considered the submissions of learned counsel for the parties and perused the records.

6. The plaintiff/respondent filed suit for permanent injunction on the ground that the land in dispute shown in the site plan annexed with the plaint is old abadi and sehan land and his house is adjacent to the land in dispute on the western side. The sehan darwaja opens in the land in dispute, which is being used by his family members for sitting, sukhvan and for other agricultural and household purposes since prior to abolition of zamindari. There are two thala Kothi Bans, one tree of Gular, hand pipe, haudi and khoota in the land in dispute, as such, he is owner of the land in dispute under Section 9 of U.P. Zamindari Abolition and Land Reforms Act. The defendant/ appellant has no concern with the land in dispute. The defendant/appellant is a muscle man and on the basis of his muscle power, he is threatening to open door in the land in dispute on the instigation of local police and administration since the last week of June, 1997. The sehan of the defendant/appellant is on the east side of his house. The defendant/appellant, after hearing about the suit, with the help of the local police and some enemies of the plaintiff/respondent has constructed a wall of bricks forcefully before commission, which has been shown in the site plan. Thus, the su