Allahabad High Court
Kunwar Pal Singh And Another vs Mahendra And 15 Others on 19 January, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 1010 of 2019
Appellant :- Kunwar Pal Singh And Another
Respondent :- Mahendra And 15 Others
Counsel for Appellant :- Abhishek Gupta,Chandra Bhan Gupta
Counsel for Respondent :- Pankaj Kumar Govil,Kamlesh Kumar Tripathi,Rishi Kant Rai,S.C. Verma,Satendra Kumar Singh,Shailesh Upadhyay,Suresh Chandra Varma
Hon'ble Vivek Agarwal,J.
Heard Shri Chandra Bhan Gupta, learned counsel for the appellants and Shri Rishi Kant Rai, learned counsel for the respondents.
This appeal has been filed by the defendant being aggrieved of the judgment dated 6.3.2019 passed by District Judge, Gautam Budh Nagar in Civil Appeal No.01 of 2019 whereby learned District Judge has partly accepted the civil appeal and set aside the judgement and decree dated 22.12.2018 and has remanded the matter to learned Civil Judge (Junior Division), Gautam Budh Nagar to frame additional issues namely whether disputed property/house is situated in Gata No.334 or in Gata No.442 abadi and permit the authorities to lead evidence and decide the suit within a period of three months.
Learned counsel for appellant submits that provisions contained in Order XLI Rule 23 prescribes the circumstances under which Remand of the case can be made by the appellate Court. It is submitted that while remanding the matter, the appellate Court has to direct what issue or issues shall be tried in the case so remanded and there cannot be a remand to initiate de novo trial.
Reliance is placed on the judgment of the Supreme Court in case of Purushottam Reddy vs. Prata Steels Ltd., (2002) 2 SCC 686 wherein it is held that in cases where additional evidence is required to be taken in the event of any one of the clauses of Sub Rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to receive such evidence and send it to the appellate court. It is submitted that an unwarranted order of remand gives the litigation an undeserved lease of life and therefore, must be avoided.
Learned counsel for the respondent/plaintiff on the other hand, submits that Civil Judge had not framed any issue as to whether disputed property mentioned in the suit as ABCDE is situated in gata no.334 or in gata no.422 of old abadi. It is submitted that issue no.2 as was framed by the learned trial court only deals with the issue as to whether plaintiffs are owner, possessor and title holder of the disputed property situated in khasra no.334 where as defendant had categorically raised a plea that the property in question is not situated in gata no.334. It is submitted that while dealing with the issue trial court has recorded a categorical finding that Kiran Pal Singh P.W. 3 has admitted that area of gata no.334 is 0.190 Sq.m whereas area under the disputed sale deed is 270 sq.m This witness has also admitted that house of the Rafiq is in Khasra no. of original abadi of the village bearing 422. This witness had also deposed that Rafiq did not sell his house contrary to the copy of sale deed available on record which revealed that Rafiq sold his house and he admitted this fact in his evidence.
It is submitted that the case of the plaintiff Mahendra before the learned trial court is to the effect that plaintiff and defendant?s no.4 to 10 are owner and possessor of khasra no.334 measuring 0.0190 hectare situated at Mirzapur, Pargana Dankaur, Tehsil Sadar, district Gautam Budh Nagar. In November 2010 plaintiff and third party defendants were threatened of their dispossession from the land contained in survey no.334 on the strength of a sale deed dated 27.10.2010. When plaintiffs obtained certified copy of the sale deed from the office of the Registrar, Gautam Budh Nagar then it came to their knowledge that defendant no.1 in an illegal and forged manner has executed a sale deed of the property contained in survey no.334 in favour of the defendants no.2 and 3. Accordingly, they filed a suit seeking cancellation of sale deed dated 27.10.2010.
It is submitted by the appellants that property which is subject matter of the sale deed is measuring 270 sq. m. and is situated on survey no.422 and not on survey no.334.
It is submitted that this aspect has been discussed in minutest details and evidence of the Amin Commissioner has been taken into consideration. It has come on record that boundaries of the impugned sale deed matched with the Amin report whereas plaintiffs have not shown any signs of abadi on gata no.334. It has also come on record that plaintiffs have not mentioned any dimensions of their land in the plaint and the map bearing no.100 ga (1) has different boundaries from the Amin report and thereafter taking into consideration evidence of P.W.-2 and recording a specific finding that P.W.-2 has enmity with Kanwar Pal, who had supported guddi against whom P.W.-2 had contested his election, therefore, he malafidely gave evidence against Kanwar Pal.
After hearing learned counsel for the parties and going through the records, it is apparent that learned trial court has discussed the issue in question on which remand has been allegedly made by the first appellate court and has categorically held that sale deed is in regard to property situated on purani abadi which is part of gata no.422 and therefore, it is held that plaintiff?s contention, that subject matter of the disputed property is situated in gata no.334 is not made out and accordingly, issue nos.1, and 2 were decided. In the aforesaid backdrop, it is apparent that the first appellate court mechanically passed an order of remand without applying itself to the fact situation of the case and without appreciating the fact that the issue on which remand order is passed was already decided by the trial court. Therefore, such mechanical use of discretion without appreciating the evidence dealt with by the trial court while deciding issue no.1 and 2, cannot be given a seal of approval thus, it is held that the first appellate court did not apply itself in ordering the remand especially when it has failed to make out a case to be covered under the provisions of either Order 41 Rule 23 or Rule 23A or Rule 25 of C.P.C.
I have no hesitation to hold that the impugned order of remand is unwarranted and it unnecessarily will give undeserved lease of life to the litigation, therefore, impugned order is set aside. Matter is remitted to the first appellate court to decide the appeal on its own merits.
Accordingly, appeal is disposed of.
Order Date :- 19.1.2021
VS
