IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.320 of 2008 DILIP KUMAR, s/o. Sita Ram Kahar @ Chulhai Rai, r/o. Khiruchowk, Bhatta, P.S. K. Hat, P.O. + District – Purnea. ---- Appellant. Versus 1. SMT. SABITRI DEVI, w/o. Ram Sogarat Poddar, 2. Smt. Chandrakala Devi, w/o. Bhado Ram, Both r/o. Khiruchowk, Bhatta, P.S. K. Hat, P.O. & Distt. Purnea. ----- Respondents. Counsel for the appellant: Mr. Kumar Uday Singh, --- Advocate. Counsel for the Respondents: Mr. K.N. Choubey, --- Advocate. Mr. Ambuj Nayan Choubey,--- Advocate. 9 04.12.2008 This appeal is against the order dated 26.03.2008 of the Addl. District Judge-I, Purnia passed in Title Appeal No.84 of 2001, whereby the title appeal has been remanded to the court-below for a fresh decision on the grounds that the plaintiff had never contended that the defendants were in possession over land in excess of their purchased land but the court-below had given direction to one of the defendants to vacate portion of land and give it to the plaintiffs. The next ground for the remand was that survey authorities were directed to amend the survey records according to the declaration of title to the party as declared by the Court but the survey authority had not been made party in the suit. The third ground for the remand was that the plaintiff had never filed any petition before the trial court contending that he had been 2 dispossessed by the defendants. Learned counsel for the appellant submitted that the plaintiff’s claim in the plaint was that his father had 5 kathas 15 dhurs of land settled to him by ex-landlord, which was also mutated in his name. That on 9.06.1964 his father sold 2 katha towards West of the plot to defendant No.1 Savitri Devi. Again on 29.01.1969, the father sold 1 katha 5 dhurs of land towards East to defendant No.2 Chandrakala Devi. Thus, in the middle 2 katha 10 dhurs of land remained with the plaintiff’s father plaintiffs. The further case of the plaintiff was that municipal survey was done in 1976 in Purnea Town and the survey map published after completion of it showed the land of defendant No.1 as survey plot No.104 and defendant No.2’s land was shown as plot No.102 and plaintiff’s plot was shown as plot No.103. The map of defendant No.1 plot No.104 showed an area of 2 katha 5 dhurs, thus, it showed 5 dhurs excess land. Defendant No.2’s plot No.102 showed 1 katha 8 dhurs and thus it showed 3 dhurs extra land. Plaintiff’s plot No.103 in the survey map showed 2 katha 2 dhurs only. Thus, it showed 3 8 Dhurs less land. The plaintiff filed suit for declaration of his title over 3 dhurs land in plot No.102 and further for declaration of title for 5 dhrus of land in plot No.104. As seen from Clause-(b) to the relief portion of the plaint is that the plaintiff prayed for a decree for recovery of possession over the lands if defendants are found in possession in excess land. Learned counsel for the appellant submitted that during the trial of the suit, a survey knowing pleader commissioner was appointed for measuring the land of the plaintiff, defendant Nos.1 & 2 under plot Nos.103,102 & 104 and that the survey knowing pleader commissioner submitted its report to the effect that the defendant No.2 was in possession of land, according to his deed of purchase, defendant No.1 was in possession of 3.5 dhurs of land in excess of the deed of his purchase. Further submission is that on the basis of the evidence recorded as well as the report of the survey knowing pleader commissioner, which was confirmed by the trial court, the decree was passed directing the defendant No.1 to give possession of 3.5 dhurs of land to the plaintiff. 4 Learned counsel also submitted that the defendant’s in para-8 of their W.S. had specifically stated that they are in possession of land according to their deed of purchase. Thus, on these grounds the trial court passed the decree which was the subject to appeal, in which the impugned order was passed. Learned counsel further submitted that the plaintiff had not made any prayer for amendment in the survey maps and his simple prayer was for restoring possession of the lands which the defendants had possessed in excess of their purchased deed. Further submission was that since there was no prayer for amendment in the survey map, impleading the survey authorities was not required at all. Learned counsel continued to submit that the trial court ordered for correction in the municipal survey plots according to its declaration. It was also submitted that whatever the trial court directed in this regard, was an order of consequential nature which required some correction in the survey maps which the municipal authorities had to do in their official course and the correction had nothing to affect the right, title or interest of anybody, other than the parties before 5 the Court and the survey authorities were not to be affected in their own interest in the matter at all. Thus hearing, I find that the direction of correction in the survey map, as was passed by the trial court, would have been made without the impleadment of the survey authorities and hence, there was no justification for the learned lower appellate court for remanding the appeal on this count. The learned lower appellate court has taken ground that the plaintiff has not contended that the defendants are in possession of land in excess of their purchased land. No doubt, the plaintiff did not say in the plaint that the defendants are in possession of excess land but in view of the relief as sought in Clause- (b) to the plaint that the plaintiff sought recovery of lands from the defendants if the plaintiff is found to have been dispossessed. There facts are clearly indicative of the facts that the plaintiff wanted possession of lands which were in possession of the defendants in excess of their purchase deed. In such view of the matters, the trial court was right in pursuing with the trial for the purpose of deciding 6 the relief of the claim by the plaintiff on the basis of the materials before it. So far the third ground as taken by the learned appellate court-below for remanding the appeal that the plaintiff had never filed any petition that he had been dispossessed, I find that in view of the reliefs as sought by the plaintiff such petition was not necessarily required. Thus on the grounds as discussed above, I find that the grounds as taken by the lower appellate court for remanding the appeal were not just and proper. The learned lower appellate court should have decided the appeal on merit. Therefore, the impugned order remanding the suit to the trial court is hereby set aside. The learned lower appellate will proceed with the hearing of the appeal and decide the same in accordance with law. Accordingly, the appeal is allowed. Mkr. (C.M. Prasad, J.)