^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M-A-Na—H/2008 S^I. C^. ! APPELLANTS/ PLAIWTIFFS ^^ s^ 'v-0^' d. RESPONDENTS/ tilEFENDANTS 1. Sunil Pathak, S/o. Late Shri Mukut ^ Narayan Pathak, aged about 54 years 2^ Anil Pathak, S/o. Late Shri Mukut ^. '•''•^J^Narayan Pathak, aged about 54 years, Both R/o. Khalsi Raja Talab Road, Civil Lines, Raipur, Beside Tawari Nursing Home Raja Talab, Raipur (C.G.) VERSUS State of Madhya Pradesh (at present State of C.G.) Through: District Collector, Raipur, District- Raipur (M.P.) 2,. Nazul Officer, Raipur Through: District Collector, Raipur District- Raipur (M.P.) Naib Tahsildar, Nazul Branch, Through: District Collector, Raipur (C.G.) MISCELLANEOUS APPEAL UNDER ORDER 43 RULE l(uf OF CrviL PROCEDURE CODE HIGH COURT OF CHHATTJSGARH AT^ILASPUR Singl^Bench: Hon'ble Shri Justice Prashant Kumar Mishra IVIiscellaneous Appeal No.107 of 2008 Sunil Pathak and another versus State of Madhya Pradesh (at present State of C.G.) and others ORDER Postfor 7-1-2011 Sd/- Prashant Kumar Mishra Judge i.' \ ^-^./ ^fy HIGH COURT OF CHHATTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous AppeaLNo.107 of 2008 Appellants Respondents versus Sunil Pathak and another State of Madhya Pradesh (at present State of C.G.) and others Present: Shri Sanjay K. Agrawal with Shri Sushobhit Singh, counsel for the appellants. Shri G.D.Vaswani, Government Advocate forthe State/respondents. Mjscellaneous Appeal under Order 43 Rule 1(u) ofthe Code of Civil Procedure. 1908 ORDER (Passed on _0]^January, 2011) This appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (henceforth 'the Code') has been preferred by the plaintiffs challenging the order of remand passed by the first appellate Court remanding the matter for fresh trial. 2. The facts of the case, in brief, are that the original plaintiff Mukut Narayan, father of the plaintiffs/appellants herein, preferred the suit for a declaration that he has perfected his title by adverse possession on Government Nazul Plot No.3/11 area 4500 Sq.Ft. situated at Civil Station, Civil Lines, Raipur. 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'pUE] |nZBN IU9LUUJ8A09 9qt z Chhattisgarh Land Revenue Code, 1959 (henceforth 'the Revenue Code'), a civil suit is not maintainable. Pleaof adverse possession was also denied and it was stated that the Government suit land being available to members of public for their Nistari/easementary rights, plea of adverse possession is not at all available in favour of the plaintiffs. The suit was filed in the month of January, 1986 and the written statement was filed on 13-3-1986. 4. The trial Court rejected the plaintiffs' prayer for grant of temporary injunction on 7-11-1987 after finding that the plaintiffs having prayed for a decree with respect to Government Nazul land/suit land which is recorded as public road and proceeding for removal of encroachment has also been initiated, no prima facie case or balance of convenience exists in favour of the plaintiffs. 5. From the order-sheets of the trial Court, it would appear that the State counsel was regularly appearing before the trial Court. The order-sheet of 15-10-1992 records that the case is fixed for the plaintiffs' evidence on 7-12-1992 and the plaintiffs may either produce their witnesses of their own or pay process fee for summoning the witnesses. When the matter was, thus, fixed on 7- 12-1992 for recording statement of the plaintiffs' witnesses, the plaintiffs, on the said date, instead of examining their witnesses, moved an application under Order 16 Rule 1(3) and Order 26 ofthe Code and the matter was fixed at 4:45 P.M. The order-sheet of the said date records that counsel for the State was not available in the Bar-Room, therefore, the Court proceeded ex parte and allowed the application under Order 26 of the Code. A Commissioner was /.' ^- \ ti' -^1;-::—. % li, v-£^1 Y ^-^/ appointed for recording statement of the plaintiffs on commission. It is to be noted that when the case was fixed for recorded of evidence of the plaintiffs and instead of examining the witnesses, an application for issuance of commission to examine the plaintiffs was moved, it was necessary for the trial Court to have issued notice of this application to the defendants/State, however, the application, which was presented on the same day, was allowed without hearing the State counsel or without issuing notice and the Commissioner was appointed. It was not mentioned in the order-sheet that the Commissioner would record the ex parte evidence of the plaintiffs. It is also not recorded in the order-sheet that the Commissioner has issued notice of the date of examination of the plaintiffs or the place where the witnesses were to be examined, to the counsel for the defendants/State or the defendants/State itself. The Commissioner examined the witnesses and returned the report of commission on 22-12-1992 and the case was fixed for recording the statement of remaining witnesses of the plaintiffs on 5-1-1993 and on the said date the plaintiffs closed their evidence after examining another witness, namely, Mehtab Singh and final arguments were heard and thereafter the judgment and decree was passed on 18-1-1993. 6. Though the suit was for declaration of title by perfection of adverse possession, the plaintiffs moved an application for execution and for delivery of possession of the suit land. When this notice for execution was served on the defendants/State, an appeal under Section 96 of the Code was filed on 6-9-1 997. The ordgr- sheet ofthe first appellate Court recorded on 17-9-1997 records that ..'s'1" ^'-^ ^ /•^' """• 1^l t ^ > ' " .,_.,.,.....,....—-,.^ ';'i »^..^'^ "v^sy on perusal of the execution application filed by the plaintiffs for recovery of possession, it phma facie appears that the trial Court has executed a decree for declaration and injunction, therefore, the appeal deserves to be admitted for hearing. The appeal was barred by limitation. It appears that the appellants moved the High Court against the appellate Court's order admitting the appeal without condoning the delay and the High Couri: directed the first appellate Court to hear the application for condonation of delay. Thus, after condoning the delay, both the parties were heard finally and the impugned order of remand has been passed by the first appellate Court. 7. Shri Sanjay K. Agrawal with Shri Sushobhit Singh, learned counsel for the appellants has argued that the impugned order is wholly illegal inasmuch as the power under Order 41 Rule 23A of the Code has wrongly been exercised and the matter has wrongly been remanded for fresh trial. He would submit that the first appellate Court has passed an order of remand without setting aside the decree on merits and thus, the order of remand is contrary to the provisions contained under Order41 Rule 23A of the Code. He has relied on Municipal Corporation, Hyderabad vs. Sunder Singh, JT 2008 (7) SC 247 and Ashwinkumar K. Patel vs. Upendra J. Patel and others, AIR 1999 SC 1125. 8. Shri G.D.Vaswani, learned Government Advocate for the State/respondents has argued that the learned appellate Court has considered the entire aspect of the matter in detail and has recorded its satisfaction in paragraphs 14 to 17 of the order giving well founded reasons as to why the decree passed by the trial Court is unsustainable on merits and the matter deserves to be remanded for fresh trial. He would submit that the power of remand available to the appellate Court has been exercised perfectly in accordance with the provisions contained under Order 41 Rule 23A of the Code and no interference is called for. He would also submit that the trial Court ignored the crucial aspect of the matter that the plaintiffs have sought adverse possession on Government land recorded as public road, therefore, for this reason also, no case for interference is made out. 9. This Court has gone through the record of the trial Court as well as the first appellate Court and in view of the entirety of the pleadings and material available on record, this Court is satisfied that the order passed by the first appellate Court needs no interference. The appellate Court has observed in detail that the defendants/State was not granted proper opportunity to submit its case at the time of recording evidence and a party to the litigation should not be penalized for the mistake of the counsel. It has also been observed that the trial Court has not even mentioned in its judgment that the subject land is recorded as public road and a decree for perfection of title by adverse possession could not have been granted nor the trial Court has dealt with the principles of law governing grant of a decree for declaration of title with respect to Government land recorded as public road. It has also been observed that the trial Court has not recorded a categorical finding \ that the plaintiffs were in open, hostile and peaceful possession for 7 more than 30 years. Thus, in view of these observations, it cannot be said that the first appellate Court has not set aside the decree passed by the trial Court on merits. In the opinion of this Court, the first appellate Court has exercised jurisdiction under Order 41 Rule 23A of the Code in accordance with law. 10. From the order-sheet of the trial Court, it would further appear that the matter was posted for recording plaintiffs' evidence on 7-12- 1992, however, when the plaintiffs did not produce their witnesses on the said date and instead moved an application under Order 26 of the Code to examine the plaintiffs on commission, the trial Court should have issued notices to the defendants on this application, and while posting the case for recording the statement of plaintiffs on commission, again no notice was sent to the defendants nor their counsel was informed. Therefore, the order proceeding ex parte against the defendants on 7-12-1992 and allowing the application under Order 26 of the Code without issuing notice and without hearing the defendants itself was an illegal order. In view of this, the learned first appellate Court has rightly remanded the case for fresh trial. 11. In Remco Industrial Workers House Building Cooperative Society vs. Lakshmeesha M. and others, (2003) 11 SCC 666, the Hon'ble Supreme Court has held in paragraph 18 ofthe report thus: "18. From the above resume of facts and the nature of \ orders of grants of occupancy rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28-5-1965 (Ext. D-3) in favour of the tenant \ Muniyappa on the subsequent grant dated 9-12-1969 ..^, I Y~^^ D (Ext.P-1) in favour of the plaintiff-respondent was neither addressed to by any of the courts below nor has a decision been rendered on the same. The issue of effect of Ext. D-3 on Ext. P-1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of the Code of Civil Procedure empowers the appellate court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial court and whichappears to the appellate court essential to the right decision of the case. Rule23-A Order 41 introduced by CPC Amendment Act 104 of 1976 w.e.f. 1-2-1977 confers powers on the appellate court to remand the whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 41 Rule 25 read with Rule 23-A CPC." 12. Applying the ratio in the present case, it would appear, as has rightly been observed by the first appellate Court, that the trial Court has ignored the basic issue and the principle regarding grant of declaration of title on the basis of adverse possession on a public road. This Court has also found that the order proceeding ex parte and allowing the plaintiffs' application under Order 26 of the Code on 7-12-1992 was itself an illegal order. Thus, relying on the judgment of Hon'ble the Supreme Court in Remco Industrial Workers House Building Cooperative Society vs. Lakshmeesha M. and others (supra), this Court is of the considered opinion that the order of remand is fully justified and is in accordance with law. 13. The case law relied by the appellants in Municipal Corporation, Hyderabad vs. Sunder Singh (supra) and \ y,•^ R^ Ashwinkumar K. Patel vs. Upendra J. Patel and others (supra) are distinguishable in facts inasmuch as in the present case there were glaring illegalities and infirmities in the proceeding as well as in the judgment and decree passed by the trial Court and the decree has been set aside by the first appellate Court on merits. 14. In view of the above, the present appeal fails and is hereby dismissed. There shall be no order as to costs. Sd/- prashantK""lar judge Mistea Gopal