IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A. r^ /09 SW (;. \^t- APPELLANT Plaintiff ^- »t 3-°^^ <^^^» -^..-" RESPONDENTS Defendant no Ito 6 »N8^ Ramvishal Jangre S/o Bisoha Prasad Caste Satnami Village Dodekala Tah. Dharsiwa Distt. Raipur [ C.G.] VERSUS ^ 1. Bisoha Ram Sahu S/o Guhan Sahu Aged about 60 years ^ 2. Sharda Sahu S/o Bisoha Aged about 27 years, ^ 3. Punitram S/o Bisoha Aged about 29 years ^ 4. Annu S/o Bisoha Aged about23 years ^ 5. Smt. Ratna W/o Sharda Sahu Aged about 23 years ^ 6. Smt Rambha W/o Punit aged about 25 years AU are by caste Teli R/o Vffl. Dodekala, Tah. Sarsiva Distt Raipur [ C.G.] The Suit valued in sum of Rs. j^t^J" ^ The appeal valued inSumofRs. ^SS?.)- i;i APPEAL U/0 43 Rule 1 ful OF THE CODE OF CIVIL PROCEDURE HIGH COURT OF CHHATTISGARH AT BILASPUR ^ j APPELLANT PLAINTIFF Misc. Appeal No. 78/2009 : Ramvishal Jangre RESPONDENTS Defendants No.l to6 Versus Bisoha Ram Sahu and others APPEAL U/0 43 RULE 1 (u) OF THE CODE OF CIVIL PROCEDURE SB:- HON. SHRI N.K. AGARWAL, J. PRESENT:- Shri Neelkanth Malviya, counsel for the appellant. Ms. Morisha Chhatri, counsel for the respondents. QRALQRDER (12.10.2011) Appellant/plaintiff - Rainvishal Jangre instituted a suit bearing Civil Suit No. 295A/2006 against the respondents claiming relief of permanent injunction before the 6th Civil Judge, Class-I, Raipur. During the pendency of suit, plaint was amended and relief of possession was also claimed. The respondents/defendants denied the plaint averments. 2. The trial Court framed three issues as under: '5TR"^;T °t o^. ^. ^TT <=)|t;ii^i 'spfM" TR yRlcii^iui ^- •^a[ ^T^ ^^- ^ tl^r ^rr ^RKTT t? ^TT^t ^ '31^T';WT^^ ST^T ^tl^n-t ? ^W^\ ^ ^K 'oW? 3. The trial Court, on a close scrutiny of the evidence led, videjudgment and decree dated 21.07.2008 granted decree of possession of suit property in favour of plaintiff finding inter ! ^ sy:^ k B 'iS^Jl | "^ i ^Si^^ .^ ,,^^ ^ h^' alia: respondent/defendants have constructed three room house over the suit land during pendency of the suit. 4. Respondents have preferred a first appeal thereagainst. 5. The learned first Appellate Court vide its judgment and decree dated 23.04.2009 in Civil Appeal No. 6A/2009 allowed respondents' appeal setting aside the judgment and decree of the trial Court and remanded the matter for deciding the plaintiffs suit afresh after framing appropriate issues regarding identity and possession of the suit land and after hearing the parties on the question of court fees and valuation of the suit. 6. Feeling aggrieved and dissatisfied with the judgment and decree passed by the first Appellate Court, the instant miscellaneous appeal under Order 43 Rule 1 (u) of the C.P.C. has been preferred by the appellant/plaintiff. 7. Shri Neelkanth Malviya, learned counsel appearing for the appellant would submit: although the specific issue regarding possession of the suit land has not been framed by the trial Court but both the parties have led evidence and the trial Court, after appreciating the entire evidence available on record, has granted decree of possession in plaintiffs favour and if at all there is any infirmity in the judgment and decree of the trial Court, the same could have been resolved by the first Appellate Court itself under Order 41 Rule 24 of the C.P.C. and the first Appellate Court acted contrary to law in remanding the matter under Order 41 Rule 23A of the C.P.C., and therefore, remand order passed by the first Appellate Court deserves to be set aside and matter may be remanded to the first Appellate Court to decide the appeal on its own merits under Order 41 Rule 24 ofthe C.P.C. •^. < 8. On the other hand, Ms. Morisha Chhatri, learned counsel appearing for the respondents supported the judgment inipugned and submitted, the first Appellate Court, after entering into merits of the matter, having found: without getting the suit land demarcated, it cannot be said, defendants' possession is over the suit land; proper issue regarding possession and identity of the property in dispute has not been framed; retrial of the case is necessary, has set aside the judgment and decree of the trial Court and remanded the matter for its retrial. The above judgment does not suffer from any illegality and deserves to be upheld. 9. I have heard learned counsel for the parties and perused the judgment and decree impugned. 10. Indisputably, there is a dispute regarding identity of the suit property inasmuch as the plaintiff is owner of the land bearing Kh.No.210/38 whereas the defendants are the owners of land bearing Kh.No.210/26 i.e. part of same Khasra Number. It is settled law, the dispute as to the identity of the suit property cannot be resolved without getting it demarcated by appointing the revenue authority as commissioner, which has not been done in the instant case. Further, apparently, the suit has not been valued by the plaintiff for the purpose of relief of possession claimed by him. 11. Considering the overall facts and circumstances of the case, the issue, which is essential for the purpose of decision of the case is "whether respondents have encroached upon land bearing Kh.No.210/38 area 0.053 hectares by constructing three room house over it? 12. To decide the above issue, it was necessary to get the suit land deniarcated by appointing revenue authority as Comniissioner. For this, no evidence is available on the record. The first Appellate Court, having found retrial necessary, has remanded the matter to the trial Court for its decision afresh. 13. In view of above, since it is not a case in which the first Appellate Court can decide the appeal under Order 41 Rule 24 of the C.P.C., I do not find any infirmity in the remand order passed by the first Appellate Court warranting interference of this Court. 14. In view of foregoing, the appeal being devoid of merit, is liable to be and is hereby dismissed. Sd/- N. K. Agarwal Judge