Bombay High Court
Anurath Yadavrao Mane vs Atmaram Shriram Bergude And ... on 17 March, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 50 OF 2015
Anurath S/o Yadavrao Mane,
Age-49 Years, Occ - Agriculture,
R/o, Warfal-wadi, Taluka Partur,
District Jalna. ... Appellant
(Original Plaintiff)
Versus
1. Atmaram S/o Shriram Bergude
Age-39 Years, Occ - Agriculture,
R/o. Warfal-wadi, Taluka Partur,
District Jalna.
2. Baliram S/o Shriram Bergude,
Age-43 Years, Occ - Agriculture,
R/o. Warfal-wadi, Taluka Partur,
District Jalna. ... Respondents
(Original Defendants)
.....
Advocate for the Appellant : Mr. K. B. Jadhav h/f Mr. S. B. Bhapkar
Advocate for Respondents 1 and 2: Mrs. Geeta L. Deshpande
.....
CORAM : V. K. JADHAV, J.
DATED : 17th MARCH, 2016
ORAL JUDGMENT:-
1. Admit. By consent of parties, heard finally at admission stage.
2. The appellant-original plaintiff instituted a suit bearing R.C.S.
No. 57 of 2009 before the Joint C.J.J.D. Partur, for recovery of
possession of encroached area from respondents-original
defendants. Learned Joint C.J.J.D., Partur, after hearing the parties,
dismissed the suit by judgment and decree dated 16.8.2011. Being
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aggrieved by the said judgment and decree dated 16.8.2011, passed
by learned Joint C.J.J.D. Partur, the appellant-original plaintiff had
preferred Regular Civil Appeal before District Court, Jalna. The
learned Adhoc District Judge-1, after hearing the parties, by
judgment and order dated 21.11.2014, remanded the matter to the
trial court by giving certain directions. Hence, this appeal.
3. Learned counsel for the appellant submits that the lower
appellate court had directed the parties to remain present before the
trial court on 21.12.2014, however, till that time, record and
proceedings were not received, and therefore, the appellant-original
plaintiff could not appear before the trial court. However, as per the
directions given by the lower appellate court while remanding the
matter, the appellant-original plaintiff filed an application on 5.1.2015
in the office of Deputy Inspector of Land Records, Partur for
measurement. Learned counsel submits that there is delay in filing
said application before the measuring authorities, however, in terms
of clause 3 of remand order dated 21.11.2014, passed by the lower
appellate court, in case the plaintiff fails to apply for measurement
within one month from the date of order, the judgment of learned trial
court shall be deemed to be confirmed. Learned counsel submits
that in view of this, the judgment and decree passed by learned trial
court, dismissing the suit filed by appellant-original plaintiff, stands
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confirmed and appellant-original plaintiff has become helpless to
proceed with the suit.
4. Learned counsel for the respondents-original defendants
submits that as per the directions given by the lower appellate court,
the appellant-plaintiff has not appeared on the given date before the
trial court. Furthermore, the appellant-plaintiff has not submitted an
application before the Taluka Inspector of Land Records within one
month from the date of order passed by the lower appellate court, as
directed. Learned counsel submits that there is negligence on the
part of the appellant-plaintiff and in view of clause 3 of the remand
order passed by the lower appellate court, judgment of the trial court
dismissing the suit of the plaintiff shall be deemed to be confirmed.
Learned counsel submits that there is no merit in the appeal and the
same is liable to be dismissed.
5. Clause 3 of remand order is reproduced below :-
"3. In case plaintiff do not apply for the measurement within
one month from the date of this order, the judgment of
learned trial court shall be deemed to be confirmed."
6. It is true that when there is suit for recovery of alleged
encroached area and when there is dispute about boundaries, it
would be appropriate to measure the suit land owned and possessed
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by the defendants. Even the lower appellate court has observed in
the impugned judgment and order that the trial court ought to have
directed the plaintiff to get the land measured jointly with the land of
defendants.
7. On the basis of rival pleadings of the parties, it is incumbent
upon the court to frame issues and in view of the provisions of Order
XIV Rule 2 of the Code of Civil Procedure, the court shall, subject to
the provisions of sub-rule (2), pronounce the judgment on all issues.
Sub-rule (2) of Rule 2 of Order XIV is not relevant here, however, the
court is required to pronounce judgment on all issues framed on the
basis of rival pleadings of the parties to the suit.
8. In the case in hand, the lower appellate court has directed the
plaintiff to apply for joint measurement of his land as well as the land
owned and possessed by the defendant, within one month from the
date of order, and in case of failure, judgment of the trial court shall
be deemed to have been confirmed. In my considered opinion, this
condition is against the provisions of Order XIV Rule 2 of the Code of
Civil Procedure. As discussed above, court has to consider pleadings
of the parties, evidence adduced by them in support of their
pleadings and then pronounce judgment on all the issues arose for
determination. The lower appellate court, while remanding the
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matter, quashed and set aside the judgment passed in R.C.S. No. 57
of 2009 with certain directions. It appears that, as per clause 3 of
operative part of the order, if the plaintiff do not apply for the
measurement within one month from the date of said order, then the
judgment of learned trial court, which has been quashed and set
aside by the lower appellate court, is deemed to have been
confirmed. According to me, this is quite strange approach and in
any manner, this cannot be upheld. So far as the other directions in
the remand order are concerned, those directions may be relevant
for carrying out joint measurement of disputed land as well as the
land owned and possessed by the defendant. However, clause 3 of
operative part of the remand order is required to be quashed and set
aside. In view of said clause No.3 of the operative part of the
remand order, judgment of the trial court i.e. dismissal of suit, is
deemed to have been confirmed. At this stage, learned counsel for
both the parties submit that the trial court may be directed to expedite
disposal of the suit.
9. In view of above discussion, present appeal is required to be
partly allowed to that extent by quashing said clause No.3 of the
operative part of the remand order alongwith certain other directions.
Hence, the following order:-
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ORDER
I. The Appeal from Order is hereby partly allowed.
II. The judgment and order dated 21.11.2014 passed by
learned Adhoc District Judge-1, Jalna in Regular Civil
Appeal No. 173 of 2011, to the extent of clause 3 of
operative part of the remand order, is hereby quashed and
set aside. The rest of the judgment and order passed by
the lower appellate court stands confirmed.
III. The trial court is hereby directed to restore Regular Civil
Suit No. 57 of 2009 to its original position and dispose it of
in accordance with law as expeditiously as possible and
preferably within a period of one year from today, keeping
in mind the directions given by the lower appellate court
while remanding the matter, except clause 3 of the
operative part of the remand order.
IV. Appeal from order is accordingly disposed of. No costs.
( V. K. JADHAV, J.)
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