Case Note & Summary
The appellant, Balkrishna Padmakar Joshi, filed a Regular Civil Suit No.377 of 2005 seeking declaration of ownership and injunction in respect of a residential block consisting of two rooms with toilet and bathroom situated near the Chandikadevi Temple at Patnadevi, an ancient monument protected under the Ancient Monument and Archaeological Sites and Remains Act, 1958. The appellant claimed that the suit house was in existence since the 19th century and that his forefathers received it by way of Sanad issued by the Collector, Khandesh in 1861. The appellant performs Archana and services to the deity and receives yearly allowances. The respondents, the Archaeological Survey of India and the Union of India, contended that the suit property is situated within the protected zone of the monument and issued a notification under Section 3 of the Act. The trial court dismissed the suit. The appellant appealed to the District Court, which by judgment dated 25.02.2021 in Regular Civil Appeal No.143 of 2015, remanded the suit to the trial court for fresh decision under Order 41 Rule 23A of the Code of Civil Procedure, 1908. Aggrieved by the remand order, the appellant filed the present appeal before the High Court. The High Court, after hearing both sides, set aside the remand order, holding that the District Judge ought to have decided the appeal on merits instead of remanding the suit. The High Court observed that the observations made in the remand order would prejudice the trial court and directed the trial court to decide the suit afresh without being influenced by any observations made in the remand order. The appeal was allowed, and the civil application was disposed of.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A CPC - Propriety of Remand - The appellate court set aside the remand order passed by the District Judge under Order 41 Rule 23A CPC, holding that the District Judge ought to have decided the appeal on merits instead of remanding the suit. The High Court observed that the observations made in the remand order would prejudice the trial court and directed the trial court to decide the suit afresh without being influenced by any observations. (Paras 1-14) B) Ancient Monuments - Protected Zone - Section 3 of the Ancient Monument and Archaeological Sites and Remains Act, 1958 - Notification - The suit property is situated within the protected zone of the Chandikadevi Temple, an ancient monument. The Archaeological Survey of India issued a notification under Section 3 of the Act. The appellant claims ownership based on a Sanad issued in 1861. (Paras 2-4) C) Property Law - Ownership - Sanad - Right to Property - The appellant claimed that the suit house was in existence since the 19th century and that his forefathers received it by way of Sanad from the Collector in 1861. The appellant performs Archana and services to the deity and receives yearly allowances. The court did not decide the merits of ownership but directed the trial court to decide the suit afresh. (Paras 3, 14)
Issue of Consideration
Whether the learned District Judge was justified in remanding the suit to the trial court for fresh decision without deciding the appeal on merits, and whether the observations made in the remand order would prejudice the trial court.
Final Decision
The appeal is allowed. The impugned judgment and decree dated 25.02.2021 passed by the learned District Judge-5, Jalgaon in Regular Civil Appeal No.143 of 2015 is set aside. The Regular Civil Suit No.377 of 2005 is restored to the file of the trial court for fresh decision in accordance with law, without being influenced by any observations made in the impugned judgment. The trial court shall decide the suit expeditiously. Civil Application No.5707 of 2021 is disposed of.
Law Points
- Remand order
- Final disposal at admission stage
- Ancient Monument and Archaeological Sites and Remains Act 1958
- Section 3
- Civil Procedure Code Order 41 Rule 23A
- Jurisdiction of appellate court
- Right to property
- Protected zone
