Case Note & Summary
The case involves a land dispute between the appellants (plaintiffs) and respondents (defendants) over Khasra No. 146. The plaintiffs alleged that the defendants encroached upon their land and sought a prohibitory injunction or, alternatively, recovery of possession. The Trial Court dismissed the suit, but the First Appellate Court remitted additional issues for determination by the Trial Court after appointing a Local Commissioner. The Trial Court returned findings in favour of the plaintiffs, and the First Appellate Court decreed the suit. The High Court, in second appeal, set aside the decree on the ground that the Local Commissioner's demarcation report was not in accordance with applicable instructions, as it did not fix three permanent points or refer to Musabi or Momi. The High Court held that the report was not a legal piece of evidence and that there was no other evidence of encroachment, thus dismissing the suit. The Supreme Court, however, found that the High Court erred in dismissing the suit without remanding the matter for fresh consideration. The Supreme Court noted that the First Appellate Court had relied not only on the Commissioner's report but also on oral and documentary evidence. The Supreme Court held that the High Court should have remanded the case to the Trial Court for fresh demarcation or for consideration of other evidence. The Supreme Court set aside the High Court's judgment and remanded the matter to the Trial Court for a fresh decision, allowing both parties to lead additional evidence if necessary.
Headnote
A) Civil Procedure - Remand - Power of Appellate Court - Section 107 CPC - The First Appellate Court remitted additional issues for determination by the Trial Court after appointing a Local Commissioner. The Trial Court returned findings in favour of the plaintiffs. The First Appellate Court, after considering the Commissioner's report and other evidence, decreed the suit. The High Court, in second appeal, set aside the decree solely on the ground that the demarcation was not carried out as per instructions. The Supreme Court held that the High Court ought not to have dismissed the suit without remanding the matter for fresh consideration, as the report was only one piece of evidence and the First Appellate Court had relied on other evidence as well. (Paras 12-18) B) Evidence - Local Commissioner's Report - Demarcation - Validity - The High Court found that the Local Commissioner did not fix three permanent points and did not refer to Musabi or Momi, rendering the report unreliable. However, the Supreme Court noted that the First Appellate Court had also considered oral and documentary evidence. The Supreme Court held that the High Court should have remanded the matter to the Trial Court for fresh demarcation or for consideration of other evidence, rather than dismissing the suit. (Paras 13-18) C) Civil Procedure - Second Appeal - Interference with Findings of Fact - Section 100 CPC - The High Court, while exercising jurisdiction under Section 100 CPC, set aside the concurrent findings of the lower courts on the ground of procedural irregularity in the Commissioner's report. The Supreme Court held that the High Court ought to have remanded the matter for fresh consideration instead of dismissing the suit, as the report was not the sole evidence and the First Appellate Court had relied on other evidence. (Paras 12-18)
Issue of Consideration
Whether the High Court was justified in setting aside the decree of the First Appellate Court on the ground that the Local Commissioner had not carried out demarcation in accordance with the applicable instructions?
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court, and remanded the matter to the Trial Court for a fresh decision. The Trial Court is directed to decide the suit afresh after giving opportunity to both parties to lead additional evidence, if any, and after considering the report of the Local Commissioner along with other evidence. The appeal is allowed with no order as to costs.
Law Points
- Appellate court's power to remand
- Validity of Local Commissioner's report
- Demarcation procedure
- Interference with findings of fact in second appeal
