Suresh Kumar Gupta vs Kanhaiyalal
2023 Latest Caselaw 9321 MP

                                                         1
                          IN      THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                ON THE 21 st OF JUNE, 2023
                                             MISC. APPEAL No. 4573 of 2010

                         BETWEEN:-
                         1.    SURESH KUMAR GUPTA S/O LATE RAM DAROGA,
                               AGED ABOUT 50 YEARS, VILL PATERA TEH HATTA
                               DISTT DAMOH (MADHYA PRADESH)

                         2.    SANTOSH KUMAR GUPTA S/O PURUSHOTTAM
                               GUPTA, AGED ABOUT 44 YEARS, VILL.PATERA,
                               TEH.HATTA, DISTT.DAMOH (MADHYA PRADESH)

                                                                                   .....PETITIONERS
                         (NONE)

                         AND
                         1.    KANHAIYALAL, AGED ABOUT 48 YEARS, VILL
                               PATERA TEH HATTA DISTT DAMOH (MADHYA
                               PRADESH)

                         2.    KAMAL KISHORE, AGED ABOUT 40 YEARS,
                               VILL.PATERA,  TEH.HATTA, DISTT.DAMOH
                               (MADHYA PRADESH)

                         3.    COLLECTOR     /  DISTRICT   MAGISTRATE
                               DISTT.DAMOH (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                         (NONE)

                               T h is appeal coming on for orders this day, t h e cou rt passed the
                         following:
                                                          ORDER

None for Petitioners.

None for Respondents.

This appeal is filed by the defendants being aggrieved of judgment and Signature Not Verified Signed by: AMIT JAIN Signing time:

6/21/2023 6:59:33 PM

decree dated 10.9.2010 passed by learned 1st Additional District Judge to the Court of 1st Additional District Judge, Damoh in Regular Civil Appeal No.10A/2008 setting aside the judgment and decree dated 17.1.2006 passed by learned Civil Judge Class-I-Hatta, District Damoh in Regular Civil Suit No.9A/2004 and remanding the matter to the Trial Court for further proceedings.

It is mentioned in the memo of appeal that the remand is not through a reasoned order. The suit of the plaintiffs was dismissed and, therefore, there was no occasion to remand the matter to the Trial Court. There could not have been any direction for fresh demarcation and, therefore, the order of remand is

inappropriate.

I have perused the impugned order of remand. The learned 1st Appellate Court has recorded a finding that the Court on its own volition can order for demarcation of land if it comes to a conclusion that the earlier demarcation is not proper. It has come to the conclusion that without there being any demarcation, no finding in regard to encroachment could have been recorded and under such facts and circumstances of the case, the learned 1st Appellate Court directed for spot inspection/demarcation by issuing a Commission and thereafter taking the evidence on record for deciding the suit on its own merits. The impugned order of remand having been passed after framing issues for remand cannot be faulted with. Thus, there is no illegality in the impugned order calling for any interference in this appeal. The parties are directed to appear before the Trial Court on 13.7.2023 for which no separate notices will be required.

In above terms, this appeal is disposed of. Record, if any, be sent back.

Signature Not Verified Signed by: AMIT JAIN Signing time:

6/21/2023 6:59:33 PM

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

6/21/2023 6:59:33 PM