IN THE HON'BLE HIGH COURT OF CHHATnSGARH AT BILASPUR (C.G.) MISCELLANEOUS APPEAL N0. 4 © s 72010 APPELLANT/ bEFENbANT N0.2 ^""" ^^<<tf" <^ ^\ (^^ ^ ^fl^ ..o Usmaniya Anjuman yatimkhana, bhamtari, Through : its Secretary, Mohd. Ajlam Khan, aged about 40 years, Son of Nayaz Neer Khan, Amapara, Dhamtari, District Dhamtan (C.G.), VERSUS 1. Smt. Laxmin Bai, aged about 55 yrs., wife of late Shiv Prasad Dhimar, 2. Satyanarayan, aged about 35 years, Son of Lote Shiv Prasad Dhimar, 3. Virendra Kumar, aged about 40 years, Son of late Shiv Prasad Dhimar, All R/o. Baniyapara, Ward Dhamtari, bistrict bhamtari (C.6.), ^^3 'lCaJ APPEAL UNDER ORDER'4^RULE.a^OF CIVIL PROCEbURE CObE RESPONbENTS : (Plaintiffs) OF AT M.A.Na 40 012010 YatlmRhaiia, Versus LaxiYiiR Bai anct ORDER Postforl^ -07-2010. Sd/- Prashant Kumar Mishra Judge v^-07-^310 (S HSGH COURT OF CHHATTISGARH AT BILASPUR SiRcsle Berscl?: Hon'ble Stiri Justice Prashant Kwnar M.A. N0.40.^ 2010 APPELLANT RESPONDENTS Versus Usmanlya Anjumsn Yatlmkhana, Dhamtari Smt. Laxmln Bai and Shrl Vishnu counsel for Shri N.S. Dhurandhar, counset for the respondents. APPEAL ORDER4$_BUi.E1Cy) OF C.P.C, Q_RDER (2) (3) I J<3 .07.2010) Heard. This Is an by the in the suit, the of remand passed by the first Court. The ptaintlffe/respondents a sutt for the in to 1.56 No. 182 at Lai Dhamtari. to the plajntlffe the Sand to Dhlmar however the ha®got Its in the sult property as Khasra NQS.182/1 and 182/2, any right, t'stle or sn Its favour. The the sult on the that the sult purchased by tate Usman from Nakchheda cn 14-07-1931 and the prcperty to the It was ateo that the a sult which dismissed In the sult js barred by and Is by -2.- (4) During pendency of the sult the pialntiffe an appllcatlon uncter Order 6 Rute 17 of C.P.C. for dedaration of tltte, demQlltion of constructlon and Thls applicatlon was rejected by the trial Court on 16-03-^)04 Annexure A/4. (5) The trial Court vlde Its judgment and 19-12-^X)8 dismissed the sult after that the for of permanent Injunctlon ths Counclt, Dhamtarl, who Inltiatiy as defendant No.1, the sald defendant No.1 the of partles, therefore the for of injunction to ths for the bullding by the originat No.2/ no longer remalns any St that the Councll has already the It by the tnal court .the sy'rt, in Its form, Is not malntalnabie the defendant No.2/appeltant. (6) The first Gourt, by the Impugned order has the matter for fresh trial after recording a finding that the the is of titte and on triai Court has not any The Court has the trlal Court to frame additlonaS and a (7) From the copy ot' the A/1) It Is that the only rellef clalmed by the plalntiffe to the effect that the No.1 Counclt, Dhamtari be > / the buttdlng plan submitted by the cSefendant No,2. NG other (8) -^- cialmed In the sust. Plalntlffe' prayer for amendment of the sult rejected by the triaS Court cn 16-03-^)04 and the Court havlng not Interfered the Interlm order of the trial Gourt the plalntlffs' prayer for and relief for declaratson of tltle and the the questton has fsnal In the yp to the of the flrst appetlate Court. As recorded by the trssl Court the MunlclpaS Gouncit, Dhamtari the of during pendency of the sust The fsrst Court has not the and has not the on and has the by observlng that the trial Court regarding tltte and (9) On of the documents It Is that the not clalmed any retlef for and Prayer for amendlng the has already been rejected and has flnat. The flrst Court has an error of iaw and tias gone contrar/ to saylng that the ts t'rtle. tn the oplnion of this Court when no Is in the pla'snt for dectaration of tltle and the trlai Court jystlfled In not framing v/ith to the of tltie and possesslon. (10) Power of remand on the Court 41 Rule 23 A can be only the Court has reversed the decree sn and a Is >^ however the fsrst Court, In the present has not --4- reversed the decree on merlts and yet It has a and that too on the polnt of which not by the m the suit. The order of remand is thys the conferred on the Gourt under Order 41 23 A of C.P.C. (11) The Impugned order is thus It to be and is SJ^A^- hereby quash@d. Slnce it has besn that the fsrst Court has not with the on mertts, the matter Is remanded to the flrst Gourt for the on merits. (12) No order as to coste. Sd/- Prashant Kumar Mishra Judge 1<^