Dismissed¶34

Smt. Shaila Devi Mishra v. Nemichand Bakliwal

Chhattisgarh HC6 Nov 2024MA/2/2022

Case brief

AI extract

What is this about?

Chhattisgarh High Court, MA No. 2 of 2022, decided 07.11.2024 by Deepak Kumar Tiwari, J.; appeal under Order 43 Rule 1(u) CPC against remand of civil suit; wholesale remand; substantial question of law; Local Commissioner's report irregularity; demarcation; identity of land; declaration of title; permanent injunction; possession; damages; Khasra No.7/2, Village Titurdih, Durg; Civil Suit No.1235933-A/2005; Civil Appeal No.11/2021; Ram Lal v. Salig Ram (2020) 11 SCC 590; appeal dismissed.

What did the court decide?

The main dispute between the parties relates to identity of the land; the plaintiff's title was not disputed at all by appellant/defendant No.1, and the first appellate Court's conclusion that the real issue between the parties had not been decided by the trial Court appears just and proper. ¶29

Smt. Shaila Devi Mishra Vs Nemichand Bakliwal — Chhattisgarh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

¶34

Issue for consideration

Whether the first appellate Court was justified in remanding the civil suit in wholesale manner ?

¶20

Court's answer

¶29

Ratio / Principle

As per the law laid down in Ram Lal (Supra), even if the Local Commissioner's report suffers from non-compliance with applicable instructions of court regarding demarcation of land, the proper course is to issue a fresh Commission for demarcation or to remand the matter for fresh adjudication.

¶31

Key takeaways

The first appellate Court was justified in remanding the civil suit to the trial Court for reconsideration; the substantial question of law is answered accordingly.ratio¶32

Detailed headnote1 paragraphs

MA No. 2 of 2022, High Court of Chhattisgarh at Bilaspur (Deepak Kumar Tiwari, J., 07.11.2024): Appeal under Order 43 Rule 1(u) CPC by defendant No.1 against the first appellate Court's judgment and decree dated 17.12.2021 (VI Additional District Judge, Durg, Civil Appeal No.11/2021) remanding, for retrial, a suit for declaration of title, permanent injunction, possession and damages concerning land bearing Khasra No.7/2, Village Titurdih, Durg. Substantial question of law framed: whether the first appellate Court was justified in remanding the civil suit in wholesale manner. Held: the main dispute related to identity of the land and the plaintiff's title was undisputed; the trial Court had decreed title but refused possession for want of proper demarcation. Relying on Ram Lal v. Salig Ram, (2020) 11 SCC 590, the Court held that non-compliance by a Local Commissioner with applicable instructions regarding demarcation is an irregularity warranting a fresh commission or remand for fresh adjudication, and the first appellate Court's remand was justified. Appeal dismissed; trial Court exhorted to decide the main civil suit expeditiously.

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2024:CGHC:43357

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

MA No. 2 of 2022

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Smt. Shaila Devi Mishra W/o U.K. Mishra Aged About 55 Years R/o Titurdih, Tehsil and District Durg Chhattisgarh. ... Appellant.

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versus

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1 - Nemichand Bakliwal S/o Late Jorawarmal Balkiwal Aged About 75 Years R/o Near Gurudwara, Station Road, Durg, Tehsil And District Durg Chhattisgarh.

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2 - State Of Chhattisgarh Through Collector, Durg, District Durg Chhattisgarh.

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... Respondents.

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For Appellant	:	Mr. Manoj Paranjpe, Advocate.
For Respondent No.1	:	Ms. Aditi Singhvi, Advocate through V.C.
For Respondent No.2	:	Mr. Lav Sharma, Panel Lawyer.

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SB : Hon'ble Shri Justice Deepak Kumar Tiwari, J.

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Order On Board

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07.11.2024

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This appeal has been filed under Order 43 Rule 1 (u) of the CPC against the judgment and decree dated 17.12.2021 passed by the VI Additional District Judge, Durg in Civil Appeal No.11/2021, whereby, the judgment and decree dated 06.03.2020 passed by the First Civil Judge, Class-2, Durg in Civil Suit No.1235933-A/2005 was set-aside and matter was remanded back for retrial.

¶16

Necessary facts of the case are that respondent No.1/plaintiff filed a civil suit for declaration of title, permanent injunction and possession of the

¶17

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property i.e. the land bearing Khasra No.7/2, area 1708.5 sq.ft. & 2008 sq.ft. situated at Village Titurdih, Durg as also for the damages on the ground that he/plaintiff is owner of the suit property and purchased the same from Laxminarayan, however, the defendant No.1 has encroached the land in question. It is also alleged that he has moved an application for demarcation and after demarcation issued notice to the respondent but of no avail. The defendant No.1 has filed her written statement and denied the allegations made in the suit. The trial Court after framing issues and after recording the evidence, decreed the suit in part and declared title in favour of the plaintiff, however, refused to grant relief of possession on the ground that the main controversy between the parties relates to identity of the land but no proper demarcation has been carried out by the plaintiff. On appeal, the first appellate Court remanded back the matter for retrial on the grounds mentioned at para 19 wherein it has been observed that finding of real issue regarding recovery of possession in light of report of commissioner about demarcation as well as question related to prayed compensation needs remand for retrial and proper adjudication.

¶19

Since at the time of admission of this appeal, no question of law was framed, this Court finds it appropriate to frame the following substantial question of law which requires consideration in this appeal:-

¶20

“Whether the first appellate Court was justified in remanding the civil suit in wholesale manner ?”

¶21

Learned counsel for the appellant/defendant No.1 fairly brings to the notice of this Court the observations made in the matter of Ram Lal and Ors Vs.

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¶23

Salig Ram and Ors [(2020) 11 SCC 590]. In the said judgment it has been observed that when Local Commissioner’s report suffering from noncompliance with applicable instructions of court regarding demarcation of land, such non-compliance amounts to an irregularity. This cannot lead to dismissal of suit itself and the Court can either discard report and issue fresh Local Commission or remand matter for consideration. He referred to Para 19 and 20 of the said judgment which read thus:-

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“ 19 . The fact that the Local Commissioner’s report, and for that matter a properly drawn up report, is requisite in the present case for the purpose of elucidating the matter in dispute is not of any debate, for the order dated 24.01.1991 passed by the First Appellate Court having attained finality whereby, additional issues were remitted for finding on the basis of Local Commissioner’s report. In the given set of facts and circumstances, we are clearly of the view that if the report of the Local Commissioner was suffering from an irregularity i.e., want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed for any irregularity on the part of Local Commissioner. To put it differently, we are clearly of the view that if the Local Commissioner’s report was found wanting in compliance of applicable instructions for the purpose of demarcation, it was only a matter of irregularity and could have only resulted in discarding of such a report and requiring a fresh report but any such flaw, by itself, could have neither resulted in nullifying the order requiring appointment of Local Commissioner and for recording a finding after taking his report nor in dismissal of the suit. Hence, we are unable to approve the approach of High Court, where after rejecting the Commissioner’s report, the High

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Court straightway proceeded to dismiss the suit. The plaintiffs have been asserting encroachment by the defendants on their land and have also adduced oral and documentary evidence in that regard. As noticed, the First Appellate Court had allowed the appeal and decreed the suit filed by the plaintiff not only with reference to the Commissioner’s report but also with reference to the other evidence of the parties. Unfortunately, the High Court appears to have overlooked the other evidence on record.

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20. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.”

¶28

On the other hand, learned counsel for the respondents supports the impugned judgment.

¶29

Admittedly, the main dispute between the parties relates to identity of the land. The title of the plaintiff has also not been disputed at all by appellant/defendant No.1. The trial Court in its judgment after considering issues No.2 to 4 reached to the conclusion at Para 16 that no proper demarcation has been carried out and he has failed to prove his case in respect of proper demarcation, and thereby, not granted relief of possession to the plaintiff. Thereafter, the plaintiff has preferred an appeal wherein the first appellate Court after considering all the aspects reached to the conclusion that the real issue between the parties has not been decided by the trial Court, which appears to be just and proper.

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¶31

Further, from the law laid down in Ram Lal (Supra), it is apparent that even if the Local Commissioner’s report suffers from non-compliance with applicable instructions of court regarding demarcation of land, in such circumstances, the proper course is to issue fresh Commission for demarcation or to remand the matter for fresh adjudication.

¶32

For the foregoing and in light of the principles laid down in Ram Lal (Supra) , this Court is of the view that the first appellate Court was justified in remanding the civil suit to the trial Court for reconsideration.

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The substantial question of law is answered accordingly.

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In the result, the appeal fails and is hereby dismissed .

¶35

However, this Court hopes and trusts that the concerned trial Court shall make earnest endeavor to decide the main civil suit in expeditious manner.

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Sd/-

¶37

(Deepak Kumar Tiwari) Judge

¶38

Ajay

Smt. Shaila Devi Mishra v. Nemichand Bakliwal

Case brief

What is this about?

What did the court decide?

Smt. Shaila Devi Mishra v. Nemichand Bakliwal

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

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