IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO.No. 293 of 2009. Reserved on: 10.5.2011. Date of Decision: 23rd May, 2011. ____________________________________________ Parmod Kalta. ….Appellant. Versus. Kanshi Ram. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant: :Mr.Janesh Gupta, Advocate. For Respondent: : Mr. G.D.Verma, Sr. Advocate with Mr.B.C.Verma, Advocate, for respondent. Dev Darshan Sud, J. This appeal has been preferred by the plaintiff-appellant herein challenging the order passed by the learned Additional District Judge, Shimla, Camp at Rohru directing that the plaintiff-appellant herein who was the respondent before the learned trial Court will apply to the Court for appointment of a Local Commissioner afresh, demarcation shall be conducted on the basis of the old record and then the suit decided by the Court on the basis of such report. Third direction issued is that in case appellant fails to apply to the Court for appointment of Local Commissioner within the time allowed by the Court which will not be less then 30 days, the suit of the plaintiff will be deemed to be dismissed. Parties were directed to appear before the Court on 16.4.2008. Whether reporters of the Local papers are allowed to see the judgment.yes. 2 2. The brief facts noticed by the learned trial Court were that the appellant herein instituted a suit for possession of land bearing Khasra Nos. 68/1 and 69/1 measuring 0-19-50 hectares and 0-19-31 hectares situated in Chak Bosari, Tehsil Chirgaon which suit was decreed. The defendant-respondent appealed against this decree and also instituted an application under Order 41 Rule 27 C.P.C. for additional evidence. While dealing with these aspects, the learned Court holds that the documents sought to be tendered in evidence are, in fact, not required. On the order passed by the learned Additional Sessions Judge, Fast Track Court, the learned Court holds that the documents do not touch anything so far as the demarcation is concerned. The orders passed by the Collector, Divisional Commissioner and Financial Commissioner which were also sought to be placed on the record, which only show that the demarcation report for the year 2000 was accepted by the plaintiff and he could not obtain fresh demarcation. 3. The Court then notes that at the time of demarcation, Kanungo did not prepare any tatima. The case of the plaintiff was that the encroached portion had been shown to be in his possession and the defendant had agreed to surrender its possession. However, possession was actually not surrendered. The documents were considered in detail and the application was rejected. 4. The main stay of the case of the plaintiff which was the demarcation report Ext.PW3/B, the Court held that this report could not be relied upon for the reason as considered in the appeal. It is thereafter that the order in appeal was disposed of with the following directions: 3 “17. In view of my findings on point No.1 above, the appeal is accepted. The judgment and decree passed by the Court below are set aside. The matter is remanded to the court below for fresh decision with the following directions:- (i) The plaintiff shall apply to the court for appointment of local Commissioner. (ii) The demarcation shall be done on the basis of old record and the matter shall then be decided by the court below on the basis of such report. (iii) If the plaintiff fails to apply to the court for appointment of local commissioner within time allowed by the court, which shall not be less than 30 days, the suit of the plaintiff shall be deemed to have been dismissed.” 5. It is this order which has been challenged in this appeal. Learned counsel appearing for the petitioner submits that the appeal should and ought to have been decided on all the points as urged before the learned court including the pending miscellaneous applications. In case the submissions made on behalf of the respondents were accepted the result would be obvious and in case they were not, the appeal had to be dismissed. The court could not resort to whole sale remand with direction for obtaining fresh demarcation etc. 6. This contention is opposed by the learned counsel for the respondent who submits that after the passing of the decree, the appellant has complied with the directions as issued. The Commissioner, in fact, has been appointed. The petitioner not having challenged the order prior to such Commissioner being appointed, the appellant now cannot be allowed to turn around and challenge the order. It is submitted that after the decision dated 18.3.2009 an application under Order 26 Rule 9 C.P.C. was filed by the appellant herein before the learned trial Court praying that the Naib Tehsildar, 4 Chirgaon be appointed as Local Commissioner to demarcate the suit land. Thereafter, the case was taken up by the Court on 17.4.2009, 18.4.2009, 20.4.2009 and 19.5.2009. Not only this, another application was filed before the learned Additional District Judge to pass appropriate orders as the old record regarding the suit land was not available with the revenue agencies and a prayer was made for amendment/variation of the order dated 11.5.2009. In these circumstances, it is urged by the learned counsel appearing for the respondent that in view of the decision of the Supreme Court in Rekha Mukherjee Vs. Ashis Kumar Das and others, 2005 (3) Civil Court Cases, 337, no appeal is maintainable. 7. I do find it strange that the learned appellate Court should have remanded the case for demarcation afresh. Of course, if the learned Court had come to the conclusion that the report could not be relied upon, the consequences were evident and do not require any elaboration. It was then for the parties to have taken appropriate action in accordance with law to protect their interest. The order has now resulted in a spate of application praying for variation/modification of the order of remand on the ground that even the revenue authorities cannot comply with it for non- availability of the record etc. 8. Learned counsel appearing for the appellant places reliance on Prem Kumar and others Vs. Parkash Chand and others, 2002(1) Cur.L.J.(H.P), 142, Hiru (Shri) and others Vs. Mansa Ram and others, 2003(1) Cur.L.J.(H.P), 133 and Bimla Kumari and others Vs. Ved Parkash and others, 2005 (2) Cur.L.J.(H.P), 61, to urge that this is not a case where remand can be resorted to. 5 9. Taking into consideration the totality of the facts and circumstances of the case, I cannot up hold the order of whole sale remand, which can only be resorted to in certain situation as contemplated by law and more especially Order 41 Rule 23 to 25 C.P.C., which is accordingly set aside. So far as the submission made on behalf of the respondent is concerned that the appellant herein is estopped from challenging the order in appeal as he has already submitted to the order, the proposition as urged in such a wide manner cannot be accepted. On a close reading of the judgment what I find is that both the parties are intent upon litigating taking advantage of the availability/non-availability of the record. However, that should be no bar for the appellate Court to adjudicate the case. 10. In these circumstances, I hold that the order passed by the appellate Court was illegal and whole sale remand could not be resorted to. The judgment passed by the appellate Court is set aside and the case is remanded to the appellate Court for decision afresh in accordance with law. A direction is issued to the learned appellate Court to re-admit the case on its record and to dispose of the same within a period of six months from the date when the parties first put appearance before the learned Court. 11. Parties are directed to appear before the learned trial Court on 27th June, 2011. Let the record of the courts below be sent back forthwith. (Dev Darshan Sud), Judge. May 23, 2011(R) 6