IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI st ON THE 21 OF JANUARY, 2026 MISC. APPEAL No. 208 of 2025 ANIL KUMAR S/O BASANTILAL SOGANI DECEASED THROUGH LRS SMT MADHU AND OTHERS Versus PIYASH AND OTHERS Appearance:

Shri Atishay Dhaker - Advocate for the appellant.

Shri Anuj Bhargava - Advocate for respondents No. and 2.

Reserved on : 01.12.2025 Pronounced on : 21.01.2026.

JUDGMENT The present appeal under Order 43 Rule 1(u) of the Civil Procedure Code has been filed challenging the judgment and order dated 12.11.2024 whereby the matter was remanded back to the trial Court with the directions as contained in para 33 of the impugned judgment.

2. The short facts of the case are that the present appeal has been filed by the appellant/defendant No.1 who faced challenge in the civil suit filed by respondents No. 1 and 2 for declaration of title and permanent injunction against the appellant/defendant No.1 with respect to land situated at Survey No. 70/1/1/Min 1 admeasuring 0.024 hec. (50 x 50 sq.ft.) total 2500 sq. ft. of Patwari Halka No. 74 in village Tajpura, Tehsil Mahidpur, District Ujjain. It was stated in the plaint that the suit property was purchased by the plaintiffs vide registered sale deed dated 19.02.2015 in which the four boundaries of the property were described in detail. The vendor handed over possession of the suit property on execution of the sale deed. In the east of the said suit land - property of Usha Tembe is situated, on the west side - property of Munindra Soni is situated, on the north side - rest of the land of survey No. 70 is situated and on the south side - land of Manoharlal Khatri is situated. It was averred in the plaint that the seller of the land i.e. Vardhman Soni had purchased the said suit land in the year 1984 from its earlier owner Basanti Lal, Rajkumar and Tejkumar vide a registered sale deed pursuant to which his name was also mutated in the revenue records.

3. The plaintiffs further averred in the plaint that they are in possession of the suit property since the date of execution of the sale deed however, the appellant/defendant No.1 tried to dispossess them on 14.10.2015 and 16.10.2015 and for this reason, the original suit came to be filed before the trial Court by the respondents No. 1 and 2/plaintiffs. The learned trial Court framed as many as three issues in the matter. The issue No.1 was with respect to the title and possession of the plaintiffs and issue No.2 was with respect to interference in the peaceful possession by the appellant/defendant. The third issue was regarding relief and cost. Both the substantive issues were decided against the respondent No.1/plaintiff. The trial Court thus non-suited the respondents No. 1 and 2/plaintiffs vide judgment and decree dated 23.12.2023.

4. The respondents No. 1 and 2, being aggrieved by the aforesaid judgment and decree preferred an appeal before the first appellate Court. The first appellate Court reversed the findings of the trial Court vide impugned judgment and order dated 12.11.2024 thereby remanding the matter back to the trial Court with certain directions as contained in para 33 of the order.

5. The learned counsel for the appellant while criticizing the impugned judgment and order stated that the basis of remand is the application filed by the respondents No. 1 and 2 under Order 26 Rule 9. However, Commissioner cannot be appointed for collection of evidence and for ascertaining possession of any of the parties. He further points out that in fact, a Commissioner's report was already available on record which fact has completely been ignored by the first appellate Court while passing the impugned order. He further points that on perusal of the plaint filed by respondents No. 1 and 2, it will be clear that they have stated that on the north side of the disputed property, rest of the land of same survey number has been mentioned. Whereas, as per the statement of Ashish Kumar (PW- 1), a pub