Appeal dismissed against First Appellate Court order remanding civil suit concerning property possession and ownership disputes, noting lacunas in trial regarding locus standi and evidence opportunity.
Appeal dismissed; remand order of First Appellate Court upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MA No.87 of 2019
Pushpraj Sadhu S/o Late Sushil Kumar Sadhu Aged About 60 Years R/o Motimpur, Tahsil Mungeli, District Mungeli, Chhattisgarh. (Defendant No. 1), District : Mungeli, Chhattisgarh
---- Appellant
Versus
1. (Deleted) India Church Council Of The Disciples Of Christ, Nill 1.1 - The Indian Church Council Of The Disciples Of Christ, Through Its Executive Secretary A.D. James, R/o Rajeev Gandhi Chowk, Jarhabhata, District Bilaspur Chhattisgarh. 1.2 - Rev. A. Nathaniel S/o Rev. Samuiel Nathaniel, Aged About 59 Years Pastor Of Disciples Of Christ Church, Civil Lines, Infront Of Police Ground, District Bilaspur Chhattisgarh.
2. State Of Chhattisgarh Through District Magistrate, Bilaspur, Chhattisgarh. (Defendant No. 2), District : Bilaspur, Chhattisgarh
3. United Church Northern India Trust Association (A Registered Trust Under Bombay Public Trust Act, 1950), Office At Omega Building, 19, August Krishi Marg, Mumbai. (Defendant No. 3)
---- Respondents
(Cause-title taken from Case Information System)
| For Appellant/Defendant No.1 | : Mr. Ashish Surana, Advocate |
|---|---|
| For Respondent No.1/plaintiff | : Mr. Ravindra Sharma, Advocate |
| For State | : Mr. R.M. Solapurkar, G.A. |
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
08.01.2024
Heard.
1. The defendant No.1/appellant has filed this appeal under Order 43 Rule 1(u) of the CPC challenging therein the judgment passed by the learned District Judge Mungeli, District Mungeli (C.G.) in Civil Suit No.40-A/2018 dated 17.06.2019 whereby the judgment and decree passed by the learned Trial Court in Civil Suit No.97-A/2014 dated 08.08.2018 has been reversed/set aside
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and the matter has been remanded back to decide the civil suit afresh without being influenced by the earlier judgment and decree.
2. The facts of the present case are that a civil suit was filed by the plaintiff/a Society registered under the Chhattisgarh Society Registration Act through its Pastor Mr. N.L. Soni (now late) representing himself as an Executive Secretary of the Society for permanent injunction and possession, if possession is not found. It is further pleaded that a counter claim was filed by defendant No.3 claiming right over the suit property. It is further pleaded that the plaintiff is the owner of the suit property situated at Village Motimpur, TehsilMungeli ad-measuring 17.12 hectares and the same was given to Sushil Kumar Sadhu, who is the father of defendant No.1 for agriculture purposes. After the death of Sushil Kumar Sadhu in the year 1995, the defendants came into possession though they had no right. It is further pleaded that the defendants are trying to dispossess the plaintiff.
3. The defendants filed their written statements and denied the plaint averments. Defendants No.1 & 2 specifically stated that defendant No. 3 is the holder and owner of the suit property and the plaintiff has no right. It is also stated that defendant No.1 has been in possession of the suit property for 40 years.
4. Learned Trial Court by its judgment and decree dated 08.08.2018 dismissed the civil suit as well as the counter claim. Learned Trial Court specifically held that the plaintiff could not prove his title and right over the suit property. The plaintiff filed an appeal against the judgment and decree dated 08.08.2018 on various grounds i.e., (i) Mr. M.L. Soni who instituted a civil suit as the plaintiff had no locus standi; (ii) the suit property was mutated by the
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Tahsildar, Jarhagaon pursuant to the judgment and decree dated 22.11.2005 passed by the learned Xth Additional District Judge, Bilaspur but the same was not taken into consideration; (iii) the appeal preferred by defendant No.3 against the order of mutation was dismissed by the Sub-Divisional Officer (Revenue) Mungeli but the same was also not taken into consideration by the trial Court; and (iv) the plaintiff/Society is a registered society and the immovable property remains with the society itself.
5. Learned First Appellate Court came to the conclusion that no transfer deed was executed by defendant No.3 to transfer the suit property in favour of the plaintiff; defendant No.1 had no right to retain the possession of the suit property; defendant No. 3 was not afforded an opportunity to adduce the evidence as on 13.07.2018 the case was set for examination of the remaining defendants’ witnesses but after examination of Pushparaj Sadhu (DW-4), the defendant’s evidence was closed; and defendant No.1 could not produce any document to show his right or title over the suit property. It was also observed by the learned First Appellate Court that N. L. Soni had no authority to institute a civil suit on behalf of the plaintiff, which has not been answered by the learned trial Court and therefore, the learned First Appellate Court remanded the matter to the learned Trial Court to decide it afresh after affording proper opportunity of hearing to the parties. The judgment and decree passed by the learned Trial Court on 08.08.2018 was also reversed/set aside.
6. Learned counsel appearing for the appellant would submit that there was sufficient material available on record to decide the appeal on the merits and thus, the learned First Appellate Court committed an error of law in remanding the matter. He would further argue that the learned First Appellate Court committed an error of law in directing defendant No.1 to deposit the
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income from the suit property in the nationalized bank. He would further argue that such an order passed by the learned First Appellate Court was unwarranted and uncalled for. He would also argue that when it is held that defendant No.1 was in possession of the suit property then there was no need to hold that defendant No.1 was unauthorizedly carrying out agricultural activity. He would pray to set aside the order of remand passed by the learned First Appellate Court.
7. On the other hand, learned counsel appearing for the respondents would oppose the submissions made by Mr. Surana.
8. Mr. Solapurkar, Government Advocate appearing for the State would support the judgment passed by the learned First Appellate Court.
9. Mr. Ravindra Sharma, appearing for the respondent No.1/plaintiff would submit that many issues were not decided by the learned Trial Court therefore, the case was rightly remanded by the learned First Appellate Court.
10. I have heard learned counsel for the parties and perused the documents placed on record.
11. Order 41 Rule 23-A of the CPC is reproduced herein below for ready reference:-
“23-A. Remand in other cases – where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trail is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.”
12. From a perusal of the documents, it appears that the learned Trial Court
dismissed the suit filed by the plaintiff on the ground that the plaintiff could not prove his ownership over the suit property and therefore, he is also not entitled to possession of the suit property. The question of locus standi of the plaintiff
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was also raised. According to by-laws, the age of the retirement of Secretary would be 65 years whereas the age of Mr. N.L. Soni, who instituted the suit on behalf of the plaintiff at the relevant time, was 75 years old, therefore, he had no right to institute the suit on behalf of the plaintiff. There was one more issue concerning the authorization of Mr. N.L. Soni and the same was not considered by the learned Trial Court. On 13.07.2018, the case was set for evidence of the remaining defendants’ witnesses but the only opportunity was afforded to Pushpraj Sadhu (DW-4) thereafter the defendants’ evidence was closed and thus, defendant No. 3 was not afforded any opportunity to adduce the evidence which is one of the lacunas in the trial.
13. Concerning the right over the suit property, as per the findings recorded by the learned Trial Court, neither the plaintiff nor the defendants could prove their right and possession over the suit property, therefore, the learned First Appellate Court rightly observed that the income from agricultural activity shall be deposited in the nationalized bank and the State would take care of the suit property. In that view of the matter, I do not find any irregularity or illegality in such findings.
14. In the opinion of this Court, the learned First Appellate Court has not committed any error of law in remanding the case to the learned trial Court. Consequently, this appeal fails and is hereby dismissed .
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(Rakesh Mohan Pandey) Judge
Rekha
2 issues framed by the court
Whether the learned First Appellate Court committed an error of law in remanding the civil suit for retrial without deciding it on merits.
Whether the order directing the defendant to deposit income from the suit property was lawful and warranted.
2 provisions across 1 enactments
Pushpraj Sadhu
India Church Council Of The Disciples Of Christ
State Of Chhattisgarh
United Church Northern India Trust Association
Rakesh Mohan Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
