RSA No.2750 of 1987 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2750 of 1987 Date of decision: 5.4.2010 Municipal Committee, Rewari ............Appellant Versus Mata Din and another .......... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Mukesh Kumar Verma, Advocate for the appellant. Mr. C.B. Goel, Advocate with Mr. Nitin Jain, Advocate for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ALOK SINGH, J. (ORAL) 1. The defendant/appellant has impugned the judgment dated 4.4.1987 passed by the first Appellate Court/District Judge, Narnaul by way of filing present second appeal under Section 100 C.P.C. RSA No.2750 of 1987 -2- 2. The brief facts of the present case are that plaintiffs/respondents filed suit for permanent prohibitory injunction to the effect that defendants be restrained from raising any construction over the suit property fully described in the plaint. Allegations made in the plaint inter-alia are plaintiffs are the owners in possession of the property in dispute; Property in dispute is the ancestral property in the hands of plaintiff No.1; Both the plaintiffs raised construction in part of the property and vacant piece of land (Sahan)/disputed property is under the joint ownership and possession of the plaintiffs; Plaintiff No.1 has one door, five water out-lets, four windows and chhappar since 1948; plaintiff No.2 has constructed five holes and one door ever since 1960, facing towards the said Sahan/property in dispute; Municipality is threatening to raise construction thereon without any authority; Hence the suit. 3. Defendant/Municipality refuted the contents of the plaint by way of filing written statement. Municipality challenged the maintainability of the suit; Municipality pleaded that suit land belongs to Municipality and plaintiffs have never been in possession of the property. 4. Learned trial Court has framed following issues:- “1. Whether the disputed site shown red with letters ABCD in the site plan is joint sahan of the plaintiffs?OPP. 2. Whether the plaintiffs have acquired only right of easement in the disputed property as alleged?OPP. 3. Whether the suit is bad for want of notice u/s 52 of the Haryana Municipal RSA No.2750 of 1987 -3- Act?OPD. 4. Relief.” 5. Learned trial Court dismissed the suit of the plaintiffs vide judgment and decree dated 5.6.1985. Learned trial Court has recorded that plaintiffs could not prove their title and right over the property in dispute. 6. In the first appeal, first Appellate Court although recorded arguments of both the Counsel on the point of title but did not decide the issue of title either in favour of the plaintiffs or in favour of the defendants. However, learned first Appellate Court vide impugned judgment allowed the first appeal. 7. I have heard learned Counsel for the parties and perused the record. 8. With the consent of learned Counsel for the parties substantial question of law is being formulated as under:- As to whether appeal deserves to be remanded under Order 41 Rule 23-A C.P.C. in view of no finding recorded by the first Appellate Court on the question of title either in favour of the plaintiffs or in favour of the defendant? 9. Impugned judgment passed by the first Appellate Court reveals that first Appellate Court has recorded arguments of both the sides on the question of title but did not return any finding on the question of title either in favour of the plaintiffs or in favour of the defendant. Learned first Appellate Court has allowed the appeal only on the ground that since plaintiffs are using property in dispute for RSA No.2750 of 1987 -4- more than 20 years, hence, Municipality has no right to make construction thereon. This finding is also not supported by any evidence or law. Judgment seems to be vague and without any specific finding. 10. Order 41 Rule 23-A C.P.C. reads as under:- “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-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.” 11. Rule 23-A of Order 41 gives power to the Appellate Court to set aside the decree and to remand the matter for retrial or rehearing if Appellate Court finds that judgment impugned before the Appellate Court cannot be sustained in the eye of law. 12. In view of the observation made above, I have no other alternative except to set aside the judgment passed by the first Appellate Court. The matter deserves to be remanded to the first Appellate Court to record the clear cut findings on the question of ownership as per pleadings and evidence and material available on record and thereafter to decide the appeal in accordance with law. 13. Consequently, appeal is allowed. Impugned judgment dated 4.4.1987 is set aside. Appeal is remanded to the first Appellate Court to decide it afresh in the light of observations made hereinabove. 14. Parties are directed to appear before the first Appellate RSA No.2750 of 1987 -5- Court i.e. District Judge, Rewari on 04.05.2010. Learned District Judge shall hear the appeal either himself or shall transfer it to any other competent authority having jurisdiction over the first appeal. ( ALOK SINGH ) 05th April, 2010 JUDGE ashish