AppQMn? Defewan‘r No.1 Rasmnden?s Plainfiff MANGAHg 9f £006 Kalyan Singh Kurm 3m of Em! Prasad Kure, aged abou? $4 vem-s, Residanf of Mungeii Ta'nsii Mungeii', D5s+ric~‘r Biiaspur (C.E:.). Versus Jeavlanla! $0?! of Hagmia! 5a+nami, aged-thou? 57 years, Residem' 0f Daupam Munge?i,. Tahsii Mungeii, ’Diyricf Biiaspur (C.6.) 551mm of Chhcm'isggrh Through; The CoHem‘or, Ei'iaspur {5.6.} ‘01 (MI5CELLANEQU5 APPEAL UNDER ORDER 43 {1) {u} OF THE CODE OF CIVIL PQOCEBURE, i908) {5.3, :Hen'ble 5hri Jgstige T.Pa5harma) Pmsem’: Shri K.S‘Kurre with Shri &.P.Kurre, ceunse! for 141a appellant. Shri Ravindm Aqmwai. counsei for respondent No.1. 5hri Sameer §ehar, Panei iawyer for fhe STai'efr-espondeni' No.2. This appgal is directed againsf The gudgmenjr é, decree dafed 212.20% gassad by fhe. .Sacond Addifimal Distric‘r Judge (Fla), Mungeli, in 5M! Appeal No.10-A/2005e whereby the learned Second ’Add§?ional Disi‘ric’r Judge has sei aside i’he judgmanf & decree da‘red 4.3.2005 passed by fhe Cfivii Judge (Jags-I, Mungali, in CM! Sui? No.3OAJ96 and remitrfed me mag for fresh mg? affar affwding‘ an appariuniw 9f hearing ‘to the parties for loccd Enspaciim’! by agpoiming’ Cammissioner: ORDER (Delivergd on gh Juiy, 20w) HIGH CQURT OF CHHATTI$6ARH AT QILA$PLIR. ® 2. Judgmem $4 decree is challengad an fhe graund That The appaiia‘re Cnur‘r was requirad T9 decide fha appeal on the bc5is ef fac? and maferial available an record and was required To decide 'tha appeal on LII! Th2 gmunds raised by fhe parfies. Remand of the ease is an exceptian and The €0ur’r behw has i§!ega!ly remitted fhe case. 3. I have Shri K.5.Kur'r-e wi'fh Shri E'P‘Kurre, cnunse! fur the aFrnelian‘ri 5hri Ravindm Agrawai, caunse! for respendenf No.1 and 5hr: Sameer Behar, Panel lawyer fer the 5Tafe/resimndem' N92 and perused The judgment a decree impugned and judgmen‘l‘ {Ki decree 9f The trial Caur‘t A 4. Sui? for declaration and aossession of khasra No.112é/2 area (102 acre sima‘ted a? Mungeii was filed by presen‘r respendem‘ No.1 against fhe presen‘r appelianf an the ground tha‘!’ the present appellam has dispassessed respondent Nal from his land. Affer affarding an opaortuni‘ty of hearing fa the parties, iearned Civil Judge Class-I. Mungeli has dismissed the suit which. was ahailenged by respondent No.1 in Civil Appeal vide impugned judgment d decree. Case was remitted far » affording an appartunity for lacai inspectian by appointing a dammissiener for measurement of the land, In this case, undisputed facts reveal that khasra No.1126/2 was originally ewned by late Anup Das‘ The present appeliant has purchased 0.09 aere 9f the land at khasra No.112é/2 fram Anup Das in the year 197.6 by registered sale deed and has aieo purchased part of the land i.e., 0.58 acre from Parvati Bai and he is in passessian of the entire land. 6. According ta ease of respandent No.1, rest land i.e., 0.02 acre was purchased by the faresent respondent Na.1 from the legal representatives of Anup Dds namely, Chandraprakash and Chandresh. The present aepellant has alleged that he has purchased 0.11 acre of the land in the year 1976 but erraneously and wrongly area was mentioned in \ 5. Tha sa!e deed as 0.09 acre, bu? The appeHan‘r was in possassien over 0.11 acre of The hnd since. 19.76, ‘ I After remand of The. case, learéed Civil Judge Class-I has decided fhe suif which is under- chaiianged in appeal befwe compg'rem farumi. 8. Lgnmad cnunse! appmring f9” +ha appellanf urgJed That aver» 1 aFTar dtncismn nf +he surr nffew remandma fhe. cage, The present appeal as mammimbie. Learned counsei P iacad raiiance in The maffers of §aisnab Padhan {defgndam’ 1) vs‘ Parma Padhm‘n (Plaintlf‘F) and anc‘l'her (defendan? 2) , Haridas and ano+he. v.) Bmshzdha. arid gn31+ia ard Chanan Pam v; khan Szragh arc m wnich '+ ins bean heid by fhe High Couri‘ of Orwso, High four'f 9f RaJosfhan mid High Cow‘? of PnnJah Thai awn af‘i'zr civcmm n'F rwil my? cvF'few remand The appeal, Judgmer}? 64 dacrae ramanding the sui‘l’ i< mainminoble Leamad counsel further plavd mhanC? in The mafia!" 9* 5himmani 5urdwar‘a Parbandhok Cemml'Heo Amr'ri'sar and other: vs Ram $hiv Roma Dev gang!“ and efhers .n whiyh sf hasbeen held by the Apex Csur? fha? decree of trial Courf Qf'rpr remamd by Hioh Cour-1’ pnaced b9hwen date nf apnlicahon for ieave +0 anpeal and dafe of gram- cif 'H'ie appmnl by the Apox ('oimi' wonid he «uh Ierf +n +he resLH' of ‘rhe appeal. Learned counsel aiso pieced reiiance in 1+e ma++er cf .‘Aai’iimm vs. Eheruiaig’ in which ‘+ W has been held bv The Hicnh Caur‘r of Mrdhya Pradesi’ Thm' in case cf sufficieni' descripfion .of fhe dispufed pmper‘w suffkrienf To identify if, remand for fumher descripfion is rib? proper. Learned counsel also pieced reiiance in fhe maffer} sf Harisharikar vsi shriiai‘ in which i? has been held by The High Courf of Madhye Pradesh ‘rhnf remand is cm " excePTim: and The Caurfs are re§mired i +0 see ‘tha‘r if fhe . arP n eai _ curing? be decided an ‘rhe basis of evidence, Then Cour? may remand The case far ‘AIQ 1964 Orissa 156 We 1%? RaJasihon 57 AJR 19Ja PuriJab a \QAIR 1955 sc 576 ‘* \ 5M P w N ma (2) Note 170 ‘M P 'V'i/ N 159a (a) Nofe 144 {\ > 4f eggoinfmem of Commissioner‘ L_-med ccunsei also placed rglinnce in the ma‘her of Diaeshchandra vs. Kamicba? in which if has been he!d by me High Cour-1' of Madhya Pradesh The? remand order cannot? be passed in fill up thg lacuna of :rhe par-fies. Learned counse! alsc placed re!iance in +"'e mefkr sf Heeram ‘5. Thakur 3556 En which i? has bzeh he!d by The High Ccur? of Mudhya Pradash Thaw in case par-Ties are unabiz To decida how mush land is in possession of par'ries, such disputa can be decidzd by The eppcimmenf 9f a Cnmmissioner. Learned caunsal also placed relishes in the mcm‘er- of Ashwmkumsr K‘ Pate! v54 Upendm J. Pafe! and ofhers’ §n which h' has bash hald by “rhs Apex Ccur? Thu? powers f0 remand The msa should n9? ordinarily be exercised merely because in its view reasaniag of lower Cour-1' in some aspec‘l’s was wrong. Learned counsel also placed reliance in ‘rhe matter of Raylncler Kaur vs. Ashck Kumar and answer-1° in which if has been heid by fhe Apex Cour? fhal' if is not The normal practice of The superior sour? to give a conclusive finding in mailers which it remands for furiher consideration because affer a conclusive finding There is nothing To be decided by the couri “lo which fhe mati'er is remanded. 9. On fhe oiher hand; learned counsel appearing for fhe respondents suppor'l'ed The judgmeni’ a decree impugned and argued Thai the presen'l appellanl’ has claimed possession and iifle over 0.Q2 acre of the land on tihe basis of wrong possession and erroneous description of the sale deed but respondent Nod has claimed title and right of possession on the basis of sale deed. -ww 10f According to the case of both the parties, the present appellant is in possession of 0.67 acre of the land but he is not in a position to show that which one comprising area Q92 acre of the land is disputed land or‘ respondent Noll is not able to show the identity of the land. 7M.P.W.N 1997 (3) Note 78 32003 (3) MP,H,T.347 we 1999 3c n25 moors) a scc 289 R K 11. In ‘l'he presgnf case afmr remanding me case, 1’he trial Caurf has decided the case finallv but in the Haht 9f the afaresaid decision The judgment é decree passed By We Wm! (‘cew'l' af'i'zv remandmn +hp awe wuuld ha sub‘geM To fhe dacisian 9f the present apgeai. 12. Headings of the par‘ries raved that priginally sale dzéd of Q09 acre of The land was executed in favour of 1h§appaHant by Anup Das cmd subsequen'riy sale deed of 0,55 acre cf fhg land was axzcufed by one Par-va’ri Bai in favour nf The present appellant Acccrdlngly vide Two sale deeds, mml 0.67 acre of flue land was sold To The appellanT Though The appellen‘!’ has specifically pleaded and deposed ThaT fnsTead of menTluning area 0.11. acre in The sale deed execuTed by Anup Das in The year 19.76, erraneausly The area was menTianed as 0.09 acre buT he is in passessian , af (3.11 acre of The land since 1976. The presenT dispuTe is relaTing Ta only 0.02 acre of The land which does mt appean in boTh The sale deeds exeeuTed in fallow of The wesenT appellant The presen‘!’ agpellan‘r has no“? filed any sulT for recTiflcaTlan af sale deed execuTed in The year 197$ or has Tried To earrecT The area by filing suitable correction deed before regisTraTion auTl'mriTy. BaTh The parTies have led Their evidence befare The Trial CoLirT buT They had naT adduced any evidence To The effecT ThaT which parT of Khasra No.1126IZ of The land was “land in dispaTe“. 13 Tn The preeenT ca--, The dispuTed land was noT shown by meTes and beunds. The land in dispuTe is noT surrounded by The walls, no specificaTion is shown by The parTies Ta i‘denTify The land. In The absence 9f such idenTifiaaTiani The learned firsT appellaTe CourT has remiTTed The case far areyiding an apparTuniTy of local inspecTion _, appoInTmo Cammissioner for idenTificaTion of The land. 14. Thaugh The apheilaTe CourT should naT remand The ease in rauTine and remand of The case is an excenTion no+ eneral rule, The annellaTe CourT has required To deelde The rase on all issLes and grounds raised bv ’\\ \ ‘rhe par'ties‘ The case should no? be remandgd m fii! up the lacuna of the par-Tias‘ 15. In the present case in The absence of any idenfifica‘ricxn or demarcation of the land an effzciive decree in favour Qf any of fine gar‘ties was no? pos5ible and after considering the eferesaid graund, The learned firsf Appellate Cour? has remanded fhe cese for affording an opportunity of inspecfian by appointing’Commissioner ta idenfify the land. In the aforesaid circumstances af the case, na optian exceat ta remand the case was left to the appellate Court to cause substantial justice. The appellate Court has not committed any illegality 1.6. Fer the faregoing reasans, the appeal has no farce, same is liable to be dismissed and it is hereby dismissedfParties shall bear their awn casts. Advocate fee as per- schedule. //' ‘ Sd/- T.P. Shanna , Jud