IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI MISC. APPEAL No. 8773 of 2024 VISHNU PARIHAR AND OTHERS Versus DECEASED RUKMANIDEVI @ RUKMADEVI THROUGH LRS.

AMRATA AND OTHERS Appearance:

Shri Sameer Anant Athawale, learned counsel for the appellant.

Shri Sanjay Kumar Sharma, learned counsel for the respondent [R-1]

[LR/S].

Heard on : 27.11.2025 Pronounced on : 02.02.2026 ORDER The present appeal has been filed by the original defendant No.2 and 7 under Order 43 Rule 1 (u) of CPC against the order dated 03.10.2024 passed by First District Judge, Neemuch, District-Neemuch in Regular Civil Appeal No.61/2019 whereby while allowing the appeal the matter was remanded back to the trial court.

2. The facts of the case are that the predecessor of respondent Nos.1 to 4 i.e. Rukmani Devi filed a civil suit for mandatory and permanent injunction and later on, relief of possession was also added in the plaint by way of amendment.

3. The plaintiff purchased a plot vide registered sale-deed dated

07.05.1991 in survey No.1068 of Neemuch. The same was sold by one Zaheer Khan out of survey No.1068 having total area 0.658 Aré out of which 0.006 Aré was sold to the plaintiff/predecessor of respondent Nos.1 to 4. After purchase of the suit property, the plaintiff got into the possession of the suit property, however, when she reached there on 20.10.2010, she saw that on both sides of her plot construction was being done and those persons were raising construction on the land of plaintiff/respondent No.1. Thus, the suit came to be filed. It was stated in para 2 of the suit that the plaintiff purchased 0.006 Hectare land out of the total land of 0.658 Hectare. It is pleaded in the plaint that the owner of the entire aforesaid land sold different parts of the land to various persons by carving out plots and after selling those plots, a plan was prepared and numbers were given to each plots. The plot which was sold to the plaintiff was numbered as 17.

4. The defendants filed their written statement to the plaint and denied the plaint averments in toto. It was stated that the plot which was purchased by the plaintiff was marked as 17 K. It was also stated that in fact the four sides have wrongly been mentioned in the plaint by the plaintiff. As such, dispute regarding identity of the plot was raised by the defendant. The learned trial court based on the pleadings of rival parties framed as many as 8 issues. After recording the evidence, the learned trial court dismissed the suit by holding that the plaintiff failed to prove that she is owner and title holder of the suit property and that the defendants are interfering in the possession of the plaintiff.

5. The respondent Nos.1 to 4 being aggrieved by the judgment and decree dated 23.09.2019 filed regular civil appeal before learned first appellate court which was registered as RCA No.61/2019. Learned first appellate court after considering evidence available on record concluded in para 25 and 26 that in view of the facts of the case and particularly the fact that the plaintiff had filed an application under Order 26 Rule 9 of CPC before the learned trial court and has again filed the said application before the first appellate court, the matter requires to be remanded back to the trial court for appointing a commissioner for demarcation of the plots of plaintiff and defendants and after receiving report from commissioner evidence should be recorded by the trial court on this issue and thereafter fresh judgment and decree be passed.

6. The appellants have come against this order of the learned first appellate court on the ground that for remand in terms of Rule 23 (a), if the court considers that retrial is necessary then it must result in reversal of decree in appeal. However, in the present case, there is no such finding by the first appellate while remanding the matter back. He submits that the sale deed would show that a small piece of land i.e. 0.006 hectare was