IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (Ord.) No.243 of 2003. Judgment reserved on: 12.11.2008 Date of decision: 5.12.2008 Durga Ram and another …….Appellants Vs. Sanjiv Kumar and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. K.D. Sood, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. Romesh Verma, Advocate. Kuldip Singh, Judge. CMP No.345 of 2007 1. Allowed. Name of Smt. Chinti Devi respondent No.6 is deleted from the array of parties, respondents No.3 to 5 legal representatives of Smt. Chinti Devi are already on record. RSA No.243 of 2003 2. The appellants, who were defendants No.1,2, have filed this appeal against judgment dated 3.5.2003 passed by learned District Judge, Bilaspur in Civil Appeal No.64 of 1995, Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… remanding the case No.10-1 of 1995/87 decided on 27.3.1995 by learned Sub Judge Ist Class, Ghumarwin. 3. The facts in brief are that respondents No.1,2 had filed a suit for declaration and permanent prohibitory injunction that they are owners in possession of land measuring 10-2 bighas comprised in khewat No.52 min, khatoni No.75, khasra No.87,154, 155 min, situated in village Luharwin, Pargana Tiun, Tehsil Ghumarwin, Distt Bilaspur on the grounds that Parsinu had limited interest in the suit land as per judgment dated 30.8.1951 of Sub Judge, Bilaspur. She never inducted Bardu father of appellants as tenant, who had also died, she had no right to create tenancy. Parsinu had executed a Will on 25.7.1987 in favour of respondents No.1,2. The entries in the revenue record showing Bardu as tenant are wrong and do not affect the right of respondents No.1,2, on the suit land. 4. The suit was contested by the appellants by claiming themselves to be owners in possession of the suit land. They pleaded that Parsinu was the owner of the suit land till her death and she inducted Bardu father of appellants as non-occupancy tenant on the suit land and he became owner in possession of the suit land in view of H.P. Tenancy and Land Reforms Act, he died on 2.9.1986 and thereafter appellants became owners in possession of the suit land. Parsinu had died on 5.8.1987. They denied that Parsinu had executed any Will in favour of respondents No.1,2. …3… 5. The appellants had filed counter claim that they are owners in possession of the suit land by operation of H.P. Tenancy and Land Reforms Act. They pleaded for restoration of possession, in case respondents No.1,2 would dispossess them. The respondents No.3,4 filed separate written statement and admitted the claim of respondents No.1,2,. In answer to the counter claim, respondents No.1,2 filed replication, re-asserted their case and denied the counter claim. 6. The learned Sub Judge dismissed the suit on 27.3.1995 of respondents No.1,2, without referring to the counter claim in the operative part of the judgment, but in paragraph 15 of the judgment held that the defendants fully deserve right of declaration prayed for by way of counter claim. The decision dated 27.3.1995 was assailed by respondent No.1 in appeal and on 3.5.2003 learned District Judge accepted the appeal and remanded the suit, hence this appeal. 7. I have heard Mr. K.D. Sood, learned counsel for the appellants and Mr. G.D. Verma, Sr. Advocate assisted by Mr. Romesh Verma, learned counsel for the respondents. Mr. K.D. Sood, learned counsel for the appellants has submitted that learned District Judge has committed error of law in remanding the suit. He has submitted that learned District Judge has neither framed any additional issue nor directed the trial Court to conduct further enquiry. On the basis of material on record, learned District Judge himself should have decided the first appeal without resorting to remand. The suit has been remanded …4… on wholly insufficient grounds. The learned counsel for the respondents has submitted that the trial Court had not granted any relief to the appellants in the counter claim and while remanding the suit, the learned District Judge has committed no error, the judgment of remand is just and equitable to both the parties. 8. The learned District Judge has remanded the suit on the ground that the trial Court had not passed any order on the counter claim of appellants. The determination of the suit was integrally tagged with the counter claim. The other ground of remand is that the trial Court had not rightly taken into consideration the documents produced by respondents No.1,2, more particularly judgment dated 30.8.1951. On both the grounds, the learned District Judge has erred in remanding the suit. The respondents No.1,2 had filed the suit and appellants counter claim. If no relief was granted to the appellants in the counter claim, it is no ground for remanding the suit, when appellants were satisfied with the decree dated 27.3.1995 passed by the trial Court. The learned District Judge should have decided the appeal himself without bothering that the trial Court had not passed any order on the counter claim. The second ground of remand taken by the learned District Judge is more flimsy. In case the trial Court had not rightly taken into consideration the evidence on record then it was the duty of the Ist Appellate Court to consider and appreciate the evidence rightly, properly and undo the error committed by the trial Court. …5… The appellate Court is meant for this purpose, otherwise in every appeal where the evidence is not properly appreciated by the trial Court, the mater will go back if the reasoning given by the learned District Judge is accepted. The entire matter was before learned district Judge, he should have decided the matter himself instead of sending the case back to the trial Court for afresh decision. The impugned judgment is not sustainable and is liable to the set aside. 9. No other point was urged. 10. The result of above discussion, the appeal is allowed. Judgment dated 3.5.2003 passed by learned District Judge, Bilaspur in Civil Appeal No.64 of 1995 is set aside, the case is remanded to learned District Judge with a direction to restore the appeal to its original number, the matter is quite old and therefore, to decide the appeal within six months from the date of receipt of the record. The parties through their counsel are directed to appear before the learned District Judge, Bilaspur on 30.12.2008. The Registry is directed to send the records of the case of Courts below so as to reach there before the date fixed. ( Kuldip Singh ) Judge. December 5 ,2008 (sks)