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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CIVIL APPLICATION (CAA) NO.39/2022

IN

APPEAL AGAINST ORDER (ST) NO.10551/2020

1.

Narayan S/o. Haribhajan Bhade,

Aged about 51 years, Occ. Cultivation,

2.

Smt. Vijaya W/o. Narayan Bhade,

Aged about 46 years, Occ. Cultivation,

Both Applicants No.1 and 2 Resident of Waghoda,

Tah. Karanja (Gha), Dist. Wardha.

APPLICANTS

Ori. Plaintiff.

VERSUS

1.

Bandu S/o. Bhagwanji Kamdi,

Aged about 49 years, Occ. Cultivation

2.

Smt. Sindhu W/o. Bandu Kamdi,

Aged about 46 years, Occu. Cultivation,

3.

Shivlal S/o. Deoraoji Kamdi,

Aged about 59 years, Occ. Cultivation,

All the Respondents Resident of Waghoda,

Tah. Karanja (Gha), Dist. Wardha.

4.

Grampanchayat Waghoda,

Through its Secretary,

Tah. Karanja (Gha), Dist. Wardha.

RESPONDENTS

Ori. Defendants.

Mr. R. D. Dharmadhikari, Advocate for the Appellants.

Mr. R. R. Prajapati, Advocate for Respondent Nos.1 to 3.

CORAM : AMIT B. BORKAR, J.

DATE

: 02.08.2022.

.

This is an application for condonation of a delay of 174 days

in filing an appeal. The period coincided with the Corona Pandemic.

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2.

For the reasons stated in the application, the application is

allowed.

3.

Delay is condoned.

APPEAL AGAINST ORDER (ST) NO.10551/2020

ORAL JUDGMENT :

1

Heard.

2.

Admit.

3.

The following substantial question of law arises in the present

Appeal :

“Whether the Appellate Court was justified in remanding the

matter back to the Trial Court in exercise of power under

Order 41 Rule 23-A of the Code of Civil Procedure in view of

the fact that necessary evidence for the purpose of arrive at

conclusion of encroachment was already on record ?”

4.

Appellants are original plaintiffs who filed a suit for removal

of encroachment and permanent injunction bearing Regular Civil Suit

No.11/2014 before the Civil Judge Junior Division, Karanja (Ghadge),

District Wardha. Respondents who are original defendants failed to file

written statements, and the Trial Court decreed the suit based on the

plaintiffs' evidence. Respondents Nos.1 to 3 aggrieved by the decree filed

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Regular Civil Suit No.128/2016 before the learned District Judge, Wardha.

By the impugned judgment and decree, the learned District Judge

remanded the proceedings back to the Trial Court under Order 41 Rule

23-A of the Code of Civil Procedure.

5.

On perusal of the impugned judgment, it appears that the

Lower Appellate Court has recorded a finding that the Court

Commissioner's map is insufficient to ascertain whether there is

encroachment as alleged on the suit property as well as on the public

roads. The Lower Appellate Court also relied upon the map annexed

along with the plaint to record a finding that there is inconsistency in the

map and the report of the Court Commissioner. Therefore, the Lower

Appellate Court found material inconsistencies in the map annexed with

the plaint and the map drawn by the Court Commissioner. Based on this,

the Lower Appellate Court thought it fit to remain the matter to the Trial

Court.

6.

In a recent Judgment, the Hon’ble Apex Court in the case of

Shivakumar vs. Sharanabasappa, (2021) 11 SCC 277 has laid down the

parameters of the Appellate Court to remand the matter under Order 41

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Rule 23-A of the Code of Civil Procedure. The Apex Court, in Paragraph 26.4,

held as under :

“26.4. A conjoint reading of Rules 23, 23-A and 24 of Order 41

brings forth the scope as also contours of the powers of a remand

that when the available evidence is sufficient to dispose of the

matter, the proper course for an appellate court is to follow the

mandate of Rule 24 of Order 41 CPC and to determine the suit

finally. It is only in su