Case Note & Summary
The appellants, original plaintiffs, filed R.C.S. No. 31 of 1985 against the respondents for recovery of an encroached portion of land and mesne profits. The land in question was Survey No. 55 admeasuring 15 acres and 31 Gunthas, originally owned by Gangaram, who was the father of plaintiff No.1 and grandfather of plaintiffs No.2 and 3. The defendants were the father and sons of the defendant family. The plaintiffs alleged that the defendants had encroached upon a portion of their land. On 27th January 1976, the plaintiffs got the land measured from the D.I.L.R. authority, which found that the respondents had encroached. The trial court dismissed the suit. The plaintiffs appealed to the District Court, which also dismissed the appeal. The present appeal from order was filed before the High Court. The High Court observed that the lower appellate court had not properly appreciated the evidence, particularly the measurement report from DILR, and had not adequately considered the claim for mesne profits. The High Court set aside the judgment of the lower appellate court and remanded the matter for fresh consideration, directing the appellate court to decide the appeal afresh after giving opportunity to both parties to lead evidence, if necessary, and to consider the measurement report and other evidence properly. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Appeal from Order - Remand - The High Court set aside the lower appellate court's judgment and remanded the matter for fresh consideration, as the appellate court failed to properly appreciate the evidence, including the DILR measurement report, and did not adequately consider the claim for mesne profits. (Paras 1-10) B) Property Law - Encroachment - Mesne Profits - The plaintiffs claimed recovery of encroached portion of land and mesne profits; the trial court dismissed the suit, but the High Court found that the appellate court had not properly evaluated the evidence, particularly the measurement report showing encroachment. (Paras 1-10) C) Evidence - Measurement Report - DILR - The measurement report from the DILR authority was a crucial piece of evidence indicating encroachment, and the lower appellate court's failure to consider it properly warranted remand. (Paras 1-10)
Issue of Consideration
Whether the trial court erred in dismissing the suit for recovery of encroached land and mesne profits, and whether the appellate court should have considered the measurement report and other evidence properly.
Final Decision
Appeal allowed. The judgment of the lower appellate court is set aside. The matter is remanded to the lower appellate court for fresh consideration of the appeal, with opportunity to both parties to lead evidence if necessary, and to decide the appeal afresh in accordance with law. No order as to costs.
Law Points
- Mesne profits
- burden of proof
- encroachment
- measurement by DILR
- remand for fresh consideration
