The appellate court can appoint a commissioner for local inspection without remanding the case, determining property disputes requires factual evidence including boundary verification.

ORDER :

1. This misc. appeal is preferred by the appellants/defendants 1-2 challenging the judgment of remand dated 21-2-2005 passed by 1st Additional District Judge, Sagar in Civil Appeal No. 7-A/2003 reversing the judgment and decree dated 29-9-2003 passed by 2nd Civil Judge Class-I, Sagar in civil suit No. 8-A/2002, whereby learned trial Court dismissed the respondents 1-2/plaintiffs’ suit for declaration of title and permanent injunction filed in respect of the suit property, which in civil appeal filed by the plaintiffs has been set aside and matter has been remanded to learned trial Court for decision of civil suit afresh, after getting demarcated the suit property through Commissioner/Revenue Officer.

2. The suit in question has been filed for declaration of title and permanent injunction with the allegations that the plaintiffs are owner and in possession of the suit house and appurtenant open land bearing house No. 348, situated in Gopalganj Ward. It is alleged that the plaintiff is residing in the house for last 40-50 years, which is situated on the land (new) Nos. 506/7 and 509/1, old number of which was 473 area 1.27 acre, which was purchased by husband and father of plaintiffs 1-2 namely Kanhaiyalal (died in the year 1977) vide regd. sale deed dated 3-4-1933. It is also alleged that the defendant 1 has executed sale deed of the suit property in favour of defendant 2 on 5-6-1997 for consideration of Rs. 1,60,000/- without any authority, on that basis the defendants 1-2 want to dispossess the plaintiffs. Hence, prayed for decreeing the suit.

3. The defendants 1-2 appeared and filed written statement denying the plaint allegations. It is also denied that that new numbers of khasra No. 473 are 506/7 and 509/1 and the suit property is situated in khasra No. 506/7 and 509/1. It is also contended that the residential house of the plaintiffs, defendant 1, 3, 4 and another son of Kanhaiyalal namely Raghuvar is constructed over khasra No. 473. It is contended that kachcha house constructed over khasra No. 506/7 and 509/1 is different house, which has been purchased by defendant 2 from defendant 1 vide registered sale deed dated 5-6-1997, on the basis of which mutation has also been done vide order dated 22-10-1997. It is also contended that the plaintiffs have no nexus with the land of khasra No. 506/7 and 509/1 as well as the house No. 348 constructed thereon. On inter alia contentions the suit was prayed to be dismissed.

4. On the basis of pleadings of the parties learned trial Court framed issues and recorded evidence of the parties and vide judgment and decree dated 29-9-2003 dismissed the suit. Against which the plaintiffs preferred Civil Appeal No. 7-A/2003 on 2-12-2003, which vide impugned judgment dated 21-2-2005 has been allowed and by setting aside the judgment and decree of trial Court, matter has been remanded to learned trial Court for decision of the civil suit afresh after getting the suit property demarcated through Commissioner/Revenue Officer. Against which the appellants/defendants 1-2 preferred instant Misc. Appeal.

5. Learned counsel for the appellants/defendants 1-2 submits that there is no dispute of title of the lands in question amongst the parties and the suit property/land of the plaintiffs is different and the property of the defendants is also different, which is clear from the pleadings and documentary evidence, as well as from the admission