SAO No. 47 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH SAO No. 47 of 2010 Date of decision : July 12, 2011 Gurcharan Singh and another ....Appellants versus Inder Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amarjit Markan, Advocate, for the appellants Mr. Parveen Kataria, Advocate, for respondent nos. 1 and 2 L.N. Mittal, J. (Oral) This is second appeal from order filed by plaintiffs no. 2 and 3 impleading plaintiff no. 1 as proforma respondent no. 3. Appellants and proforma respondent no. 3 filed suit against respondents no. 1 and 2/defendants claiming the disputed passage shown in red colour in the site plan attached to the plaint for their land measuing 1 kanal 2 marlas comprised of khasra no. 28//11/5. The defendants, however, alleged that there is no such disputed passage and in fact defendants are owners in possession of land measuring 19 marlas of khasra no. 28//11/6 through which the plaintiffs want to claim the passage. SAO No. 47 of 2010 -2- Learned trial court vide judgment and decree dated 13.10.2006 decreed the plaintiffs' suit. However, learned first appellate court vide impugned judgment dated 15.9.2010 passed in first appeal preferred by defendants has remanded the suit to trial court for fresh decision. Feeling aggrieved, plaintiffs no. 2 and 3 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Trial court initially framed following issues in the suit on 19.7.2002:- “ 1. Whether the plaintiffs are owners in possession of the suit property and are entitled for permanent injunction as prayed for? OPP 2. Whether the present suit is not properly filed, assessed, verified and signed by the plaintiffs as required under the provisions? OPD 3. Whether the plaintiffs have locus standi to file the suit?OPP 4. Relief.” However, learned trial court reframed issues on 22.8.2002 as under :- “ 1. Whether the property shown as red in the site plan is passage and the plaintiff is entitled for permanent injunction as prayed for? OPP 2. Whether the plaintiffs have locus standi to file the present suit? OPP 3. Relief.” Instead of deciding the reframed issues as above, learned trial court while deciding the suit mentioned the issues initially framed in the suit SAO No. 47 of 2010 -3- and gave findings thereon and did not mention the reframed issues in the judgment nor recorded findings thereon. Learned lower appellate court has observed in the impugned judgment that the trial court should have framed the following issues :- “Whether there is any passage existing in khasra no. 28//11/6 leading to the land of respondents measuring 1K-2M as described and detailed in the head note of the plaint and secondly whether the appellants are owners in possession of the land measuring khasra no. 28/11/6 measuring 0K-19M which has been alleged as passage by respondents”. Accordingly, learned lower appellate court remanded the suit to the trial court for reframing the issues and then to decide the suit afresh. Learned counsel for the appellants contended that the trial court had already reframed the issues as required and therefore, lower appellate court should have decided the reframed issues or at best should have called for report on these issues from the trial court and should not have remanded the suit. On the other hand, learned counsel for respondents no. 1 and 2/defendants contended that issue regarding ownership of defendants over land of khasra no. 28//11/6 is also required to be framed and decided and the lower appellate court has rightly remanded the suit to the trial court for fresh decision. I have carefully considered the rival contentions. Issue regarding ownership and possession of defendants over khasra no. 28//11/6 is not required to be framed and decided to adjudicate upon the suit filed by SAO No. 47 of 2010 -4- the plaintiffs because the only dispute is regarding the disputed passage claimed by the plaintiffs. Even without deciding whether the said passage is part of khasra no. 28/11/6 or not and whether defendants are owners in possession thereof, the plaintiffs' suit can be decided on the basis of issues reframed by the trial court on 22.8.2002 as mentioned hereinbefore. Consequently, the said issues are required to be decided. The lower appellate court could either decide the said issues itself on the basis of evidence on record or could have sought report from the trial court regarding findings on the said issues and the suit was not required to be remanded for this purpose. The instant case is not covered by Rule 23 or Rule 23A of Order 41 of Code of Civil Procedure making provision for remand of the suit by the appellate court. For the reasons aforesaid, it is manifest that impugned judgment of the lower appellate court is illegal and unsustainable. Accordingly, the instant second appeal from order is allowed and impugned judgment dated 15.9.2010 passed by the lower appellate court remanding suit to the trial court is set aside. Lower appellate court is directed to decide the first appeal in accordance with law keeping in view the observations made hereinabove. Parties are directed to appear before the lower appellate court on 18.8.2011. ( L.N. Mittal ) July 12, 2011 Judge 'dalbir'