Madhya Pradesh High Court
Sunil Kumar vs Ghanshyam on 21 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
MISCELLANEOUS APPEAL NO. 566 OF 2015
BETWEEN:-
SUNEEL KUMAR S/O CHIRONJILAL, AGED
ABOUT 46 YEARS, R/O NARSINGH WARD, NADI
MOHALLA, TAHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
.....APPELLANT
(SHRI MANOJ KUMAR MISHRA - ADVOCATE FOR APPELLANT)
AND
1. GHANSHYAM S/O MOHANLAL SONI, AGED
ABOUT 45 YEARS, R/O NARSINGH WARD,
GADARWARA, TAHSIL GADARWARA, DISTRICT
NARSINGHPUR (MADHYA PRADESH)
2. THE STATE OF MADHYA PRADESH
THROUGH COLLECTOR, NARSINGHPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI G.S. BAGHEL - ADVOCATE FOR RESPONDENT NO.1)
(SHRI ANOOP SONKAR - PANEL LAWYER FOR RESPONDENT NO.2/STATE.)
---------------------------------------------------------------------------------------
Reserved on : 02/02/2024
Passed on : 21/02/2024
---------------------------------------------------------------------------------------
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 21-02-2024
17:29:02
2
This Miscellaneous Appeal having been heard and reserved for
order, coming on for pronouncement on this day, Justice Amar Nath
(Kesharwani) pronounced the following:
ORDER
This Miscellaneous Appeal under Section 43 Rule 1(u) of the
Code of Civil Procedure, 1908, which shall be referred here-in-after as
"CPC", has been filed against the judgment dated 05/02/2015 passed by
II Adiditional District Judge, Gadarwara, District Narsinghpur (M.P.) in
Regular Civil Appeal No.29-A/2014, whereby learned Appellate Court
has interfered with the judgment and decree dated 31/10/2012 passed by
IInd Civil Judge Class-II, Gadarwara, District Narsinghpur (M.P.) in
Civil Suit No.58-A/2010 and remitted the matter back to the trial Court
for retrial with certain directions under Order 41 Rule 23 of the CPC.
2. Brief facts of the case are that the appellant/plaintiff filed a Civil
Suit against respondents for declaration of title and permanent
injunction in respect of land bearing Khasra No.90/5 area 0.025 Aare,
Patwari Halka No.18/1 situated at Mauja Gadarwara, Tahsil Gadarwara,
District Narsinghpur (M.P.). Respondent No.1 / defendant No.1 has
filed his written statement. Considering the pleadings of the parties,
learned trial Court has framed the issues and after recording the
evidence as adduced by the parties and after hearing the arguments of
learned counsel for the parties, passed the judgment and deceree dated
31/10/2012 in favour of appellant/plaintiff as title holder of the suit
property and issued permanent injunction against respondent No.1
directing him not to create any interference in the suit property and shall
not raise any construction on suit property. Being aggrieved with the
judgment of trial Court respondent No.1/defendant No.1 filed an Appeal
under Section 96 of the CPC before the Second Additional District
Judge, Gadarwara, District Narsinghpur (M.P.), which was registered as
Regular Civil Appeal No.29-A/2014 and was disposed of by the
impugned judgment dated 05/02/2015 by remitting back the matter to
the trial Court for fresh adjudication. Being aggrieved by the impugned
judgment, this appeal has been filed.
3. Learned counsel for the appellant submitted that the impugned
judgment is bad in law and perverse to the evidence and the other
material substance gathered with the case. Learned Appellate Court has
not applied proper application of mind in not going through the evidence
and other material available on record. Learned Appellate Court has
failed to take into consideration the pleadings made by appellant in the
case. Learned Appellate Court has ignored the settled principle of law in
remitting the case to the trial Court for fresh adjudication. Hence, prayed
to set aside the impugned judgment and to affirm the judgment and
decree passed by learned trial Court or send the matter back to the
Appellate Court to decide the appeal on merit. In support of his
arguments learned counsel placed reliance on the judgment in the case
of Vipin Kumar & Others Vs. Sarojani, 2013 (1) MPLJ 480, judgment
dated 07/03/2019 passed by coordinate Bench of this Court in
M.A.No.3336/2017 (Ratanlal Chandani Vs. State of M.P. & Another)
and order dated 18/12/2023 passed in M.A.No.2421/2017 (Akhilesh
(Dead) through His Legal Representatives Vs. Smt. Madhuri &
Others).
4. Per contra, learned counsel for the respondent No.1 opposed the
prayer and submitted that the learned Appellate Court after due
appreciation of evidence available on record, has passed the impugned
judgment, which requires no interference. It is prayed that the appeal be
dismissed.
5. I have heard the arguments advanced by the learned counsel for
the parties, perused the record and gone through the citations upon
which reliance is placed by learned counsel for the appellant.
6. It reveals from the record that the learned First Appellate Court
while deciding the appeal has not considered the evidence available on
record and simply allowed the application filed under Order 41 Rule 27
of the CPC on behalf of respondent and remitted the matter back to the
trial Court for fresh adjudication. While allowing the application under
Order 41 Rule 27 of the CPC the learned First Appellate Court has not
considered the provisions of order 41 Rule 27 of the CPC. Learned First
Appellate Court has ordered the trial Court to give the findings on issue
Nos.4, 5, 6, 7 & 8, which were considered by the trial Court as not
necessary while passing the judgment. In that respect, learned First
Appellate Court has not considered the issues, which have to be
adjudicated in the matter.
7. Learned First Appellate Court has remitted the matter to the trial
Court with certain conditions, which is mentioned in Para-22 of the
impugned judgment. Para-22 of the impugned judgment is reproduced
as below :-
22- izdj.k vkns'k 41 fu;e 23 lh- ih- lh- ds vUrxZr fuEufyf[kr
funsZ'kksa ds lkFk iqu% fopkj.k gsrq fopkj.k U;k;ky; dks izfrizsf"kr
fd;k tkrk gS %&
1- ;g fd fopkj.k U;k;ky; ds }kjk okn dks iqu% jftLVj esa ewy uacj
ij dk;e fd;k tk;sxkA
2- ;g fd vihykFkhZ ds }kjk izLrqr nLrkost tks vfHkys[k esa 'kkfey
fd;s x;s gS a muds vuqlkj mls vkSj mRrjoknh dks [k.Mu esa ,d
volj nLrkost izLrqr fd;s tkus gsrq iznku dj dsoy ,d&,d
volj lk{; gsrq mu nLrkostksa ds lEcU/k esa fn;k tk;sxkA
3- ;g fd fopkj.k U;k;ky; }kjk tks lk{; ewy fopkj.k esa vfHkfyf[kr
dh xbZ gS mlh ds ckn vkxs lk{; ysrs gq;s lEiw.kZ lk{; ds vk/kkj
ij iqu% fu.kZ; 06 ekg ds vUnj ikfjr fd;k tk;sxkA
4- ;g fd fopkj.k U;k;ky; }kjk okn fo"k; dzekad 4] 5] 6] 7 o 8 ij
lk{; fo'ys"k.k dj mfpr fu"d"kZ vko';d :i ls vfHkfyf[kr fd;s
tk,axsA
5- ;g fd mHk;i{kdkj fnukaD 03-03-15 dks fopkj.k U;k;ky; ds le{k
vfxze dk;Zokgh gsrq mifLFkr jgsaxs vkSj mlds 06 ekg ds vUnj
fu.kZ; ikfjr fd;k tk;sxkA
8. It is not disputed in the case that previous owner of the suit
property Gaya Prasad had executed a sale-deed (Ex.P-1) dated
04/02/1993 for the land admeasuring 40 X 60 sq. feet out of the land
bearing Khasra No.90/7 admeasuring 0.246 Aare in favour of appellant.
It is also not disputed in the case that Ramwati Bai executed a sale-deed
(Ex.D-21) on 04/11/1999 in favour of respondent No.1 for the land
admeasuring 1500 sq. feet out of land bearing Khasra No.90/18 and
Ramrati Bai also executed a sale deed (Ex.D-6) on 02/08/1999 in favour
of wife of respondent No.1 for the land admeasuring 1500 sq. feet out of
the land bearing Khasra No.90/18.
9. As per pleadings of respondent No.1, the land which was
purchased by the respondent No.1 and his wife from Ramwati Bai, was
purchased by Ramwati Bai from Gaya Prasad vide registered sale-deed
(Ex.D-1) dated 28/11/1985. Hence, it is clear that the land which was
purchased by the appellant by registered sale deed Ex.P-1 is the part of
Khasra No.90/7, which was changed into Khasra No.90/25 and the land
which was purchased by respondent No.1 is the part of Khasra
No.90/18, therefore, Khasra numbers of the land belonging respondent
No.1 and his wife are different and boundaries were also mentioned in
the respective sale-deeds.
10. Issues Nos.4 to 8, which were framed by the learned Trial Court
are reproduced as below :-
4- D;k oknh dk fodz; i= fnukad 04-02-93 dysDVj vkQ LVkEi
ujflagiqj ds U;k;ky; esa fnukad 23-07-10 rd iaft;u ds fy;s tIr
jgk \
5- D;k izfroknh dz-1 us [k- ua- 90@18 esa ls 1500 oxZQqV dk Hkw[kaM
iathd`r cSukek fnukad 02-08-99 jkeorh jk; ls dz; fd;k Fkk ,oaa
jkeorh jk; ls gh 'ks"k jdos dk Hkw[kaM Hkkjrh lksuh us dz; fd;k Fkk \
6- D;k Hkkjrh lksuh us ekStk xkMjokjk es a fLFkr [k- ua- 90@18 jdck
3000 oxZQqV esa ls 1500 oxZQqV iathd~r cSukek fnukad 02-08-99 ds
ek/;e ls dz; fd;k Fkk ,oa mDr jdos dk 'ks"k jdck izfroknh dz-1 us
iathd`r cSukek fnukad 04-11-99 ls dz; fd;k Fkk \
7- D;k jkeorh jk; us [k-ua- 90@7 esa ls 0-027 gsDVs- vFkkZr 300 oxZQqV
Hkwfe jkeorh jk; us izthd`r cSukek fnukad 24-11-85 ds ek/;e ls dz;
dh Fkh \
8- D;k izfroknh dz-1 jkeorh jk; ds }kjk dz; fd, x, Hkw[kaM ij dkfct
gS \
11. It reveals from the pleadings of the parties that issue Nos. 4 to 8
which were earlier framed by the trial Court are not necessary for
adjudicating the dispute involved between the parties of the case, hence
trial Court has rightly given the finding that the finding of issue Nos. 4
to 8 are not required to be considered and First Appellate Court has
wrongly remitted the matter back to the trial Court for giving findings
on issue Nos. 4 to 8, which should not be sustained.
12. Learned First Appellate Court has not even considered the
necessity of documents filed alongwith application under Order 41 Rule
27 of the CPC for adjudication of appeal pending before him and has not
considered the evidence available on record.
13. In the case of Vipin Kumar & Others (Supra) coordinate Bench
of this Court has laid down the following principle of law :-
17. It is made clear here that for future while directing remand by the
lower Appellate Court certain guidelines are required to be
observed while passing judgment and order directing remand. It is
directed that the lower Appellate Courts in the State shall observe
the contingencies in which remand is permissible otherwise the
appeals be decided on merit. The contingencies wherein remand
can be directed is observed as thus :
(1) If the suit has been decided on a preliminary issue and the
decree is reversed by Appellate Court then while passing the
order of remand the Appellate Court may direct to try the
issue or issues after taking the evidence already on record or
after the remand, if any, on restoring the suit to its original
number.
(2) If an appeal is preferred against the judgment and decree
passed by the trial Court other than the preliminary issue and
Appellate Court reversed such finding in appeal and further
found that re-trial is necessary then by recording such finding
the power as specified in clause (1) may be exercised by the
Court directing wholesale remand.
(3) If the Appellate Court found from the decree against which an
appeal is preferred the trial Court has omitted to frame or try
any issue or to determine the question of fact which appears
essential to right decision of the suit on merit, then the
Appellate Court may frame issues and refer the same for trial
to the Court from whose decree the appeal is preferred
directing to take additional evidence if required. The
Appellate Court shall further direct that after trying the said
issue the evidence be returned to it with a finding and reasons
therefor. In such contingencies the time to return back the
evidence and the finding ought to be fixed by the Appellate
Court. Thereafter the Appellate Court after inviting objections
may determine the appeal on merit.
(4) On production of the additional evidence and after taking
them on record, if the Appellate Court is satisfied to take
some witness to prove the document then the remand may be
directed for taking such evidence or witness on record
specifying the points for it. On taking additional evidence on
record by all the times the remand is not necessary if the
document is admissible in evidence and not objected by other
side, the Court may pass the order on merit deciding the
appeal.
(5) It is to be made clear here that if the evidence on record is
sufficient to enable the Court to pronounce the judgment alter
re-settling the issue, the Appellate Court should not remand in
routine and the appeals must be decided on merit.
(6) If the Appellate Court is of the opinion to direct for remand in
any of the contingencies as specified hereinabove under
clause (1) to (4), it is the duty of the Court to fix the date for
appearance of the parties before the trial Court with a view to
curtail the delay on directing such remand and if the remand
in the above clause (3) findings be also called within the time
specified.
14. Thus, in absence of fulfillment of requirement of remand as held
in the case of Vipin Kumar & Others (supra) the impugned order
cannot be sustained in the eye of law because First Appellate Court
itself firstly has to consider the evidence already available on record.
The documents which were filed alongwith the application under order
Order 41 Rule 27 of the CPC should have been considered at the time of
final hearing of the case and not at preliminary stage and if then the First
Appellate Court feels that retrial is necessary, then by recording such
finding, the power as specified in the judgment of Vipin Kumar &
Others (Supra) may be exercised by directing the remand of the case as
per provisions of Order 41 Rule 23-A, 24 and 25 of the C.P.C.
15. Therefore, as discussed above, impugned judgment passed by
learned II Additional District Judge, Gadarwara, District Narsinghpur
(M.P.) is hereby set aside and the matter is remanded back to the First
Appellate Court to decide the appeal on its own merits confining itself
to the issues and evidence before the trial Court preferably within 180
days from the date of receipt of copy of this order and record.
16. Parties are directed to remain present in person before the learned
First Appellate Court on 18/03/2024.
17. With the aforesaid observation, appeal stands disposed of.
18. Let the record of the trial Court as well as First Appellate Court be
sent back to the concerned Court alongwith copy of this order for
information and necessary action.
(AMAR NATH (KESHARWANI))
JUDGE
as
