Judicial Analysis Court Copy Headnote Facts Arguments Court observation

HIMACHAL PRADESH HIGH COURT
Tarlok Singh Chauhan, J.
Yuvraj Mohan Azad —Appellant
versus
Goverdhan Singh —Respondent
First Appeal From Order No.269 of 2019
Decided on 23.4.2022

Advocates:
Counsel for the Parties:
For the Appellant:Mr. Neeraj Gupta, Sr. Advocate with Mr. Ajeet Pal Singh Jaswal, Advocate
For the Respondent:Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate

IMPORTANT POINT
(1) Remand of matter—Wholesale remand cannot be readily ordered by higher court unless facts and circumstances fully justify the same.
(2) Appeal—Appellate court must come into close quarter with reasoning assigned by trial court and then assign its own reasons for arriving at a different finding.

Headnote:
(A) Civil Procedure Code, 1908—Order 41 Rule 31—Wholesale remand of matter—Wholesale remand cannot be readily ordered by higher court unless facts and circumstances fully justify the same—Appellate court is final court of fact ordinarily and a litigant is entitled to a full, fair and independent consideration of evidence at appellate stage—Anything less than this is unjust to him—In present case, first appellate court has chosen to write a separate order to justify its decision for setting aside report of Local Commissioner without making a single reference to reasons assigned by trial court for upholding report of Local Commissioner—In such circumstances, order passed by first appellate court cannot sustain—Impugned order passed by first appellate court quashed and set aside and matter remanded back to first appellate court with direction to decide it afresh in accordance with law. (Paras 14, 16, 26 and 27)
(B) Appeal—Parameters—Judgment of appellate court must reflect its conscious application of mind and record findings supported by reasons, on all issues arising along with contentions put forth, and pressed by parties for decision of appellate court—What is absolutely imperative and important while reversing findings of fact is that appellate court must come into close quarter with reasoning assigned by trial court and then assign its own reasons for arriving at a different finding—This would satisfy court hearing a further appeal that first appellate court had discharged duty expected of it. (Paras 24 and 25)
Result: Appeal allowed.

ORDER

Tarlok Singh Chauhan, J.—Aggrieved by the impugned order dated 16.5.2019 rendered by the learned first appellate court, whereby it has ordered wholesale remand of the matter after setting aside the judgment and decree passed by the learned trial court, the plaintiff/appellant has filed the instant appeal.

2. The plaintiff filed a suit for possession and permanent prohibitory injunction against the defendant/respondent on the allegations that he is owner in possession of the land comprised in Khasra No. 415/3, measuring 3-01-56 hectares, situated in Mohal Shiv Nagar, Tehsil and District Shimla and the defendant is owner of the adjoining land comprised in Khasra No. 415/2.

3. As regards building plan of the appellant, the same was approved by the Special Area Development Authority on 21.7.2005, whereas that of the respondent was approved later on 8.8.2006. It was alleged that in the month of February 2006, which was one day before the date fixed for demarcation, the defendant in absence of the plaintiff encroached upon the suit land by constructing the boundary wall and thereby covered the set-back area of the plaintiff mentioned at points A, B and C in the map. Hence, the suit.

4. The defendant contested the suit by filing written statement, wherein it was averred that the construction raised by him was as per sanctioned plan and it was denied that the setback of the plaintiff was encroached by him. On the other hand, it was claimed that the plaintiff had raised the construction without leaving any set-back area. The boundary wall was raised in the month of August 2002 and not in the year 2006 as alleged by the plaintiff. It was further averred that the demarcation given by the Field Kanungo on 9.2.2006 was correct, but the plaintiff did not agree to the same. Besides, he also took preliminary objections regarding cause of action, estoppel, improper valuation, non-identification of the land, non-joinder of necessary parties and locus standi.

5. The defendant also filed counter claim seeking to restrain the plaintiff from causing any damage to the building of the defendant, situated over Khasra No. 415/2. It was further averred that the plaintiff had started plastering work, white wash etc., which was damaging his building.

6. On the basis of the pleadings of the parties, the learned trial court on 12.11.2008 framed the following issues:—

(1) Whether the defendant has encroached upon the suit land, as alleged?.. OPP

(2) If issue No.1 is proved in affirmative whether the plaintiff is entitled for the possession of the encroached portion of the suit land, as alleged? OPP

(3) Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP

(4) Whether the plaintiff has cause of action to file the present suit? OPD

(5) Whether the suit is not maintainable? OPD

(6) Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds, etc, as alleged? OPD

(7) Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPP

(8) Whether the suit is bad for non joinder of necessary parties? OPD

(9) Whether the defendant is entitled to the relief of Permanent Prohibitory Injunction as prayed for by way of counter claim? OPD

(10) Whether the defendant has cause of action to file the counter claim? OPD

(11) Whether the counter claim is not maintainable ,as alleged? OPP

(12) Relief.

7. After recording the evidence and evaluating the same, the suit filed by the plaintiff was decreed by the learned trial court, whereas counter claim of the defendant was dismissed.

8. It needs to be noticed that the findings of the learned trial court are based on the demarcation report, Ext. CW-1/B, which had been called for by the learned District Judge at an earlier occasion on 8.3.2013, whereby judgment and decree passed by the learned trial court on 29.2.2012 had been set aside by holding that the dispute between the parties could be settled by a