Case Note & Summary
The case involves a second appeal arising from a dispute over alleged encroachment on Survey No. 6/1 belonging to the plaintiff. The trial court had decreed the suit, but the lower appellate court found defects in the map prepared by the Cadastral Surveyor, including that the Tipan extract was prepared by the surveyor himself, the superimposed Tipan extract on tracing paper was not produced, and sub-divisions were not shown. The lower appellate court remanded the matter to the trial court for fresh measurement after removing these defects. The appellant challenged this remand order in the second appeal. The High Court framed a substantial question of law regarding the propriety of the remand. After hearing both sides, the High Court held that the remand order was proper as the lower appellate court had pointed out specific defects that needed rectification for a fair adjudication. The High Court dismissed the second appeal, upholding the remand order.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A CPC - Lower appellate court can remand for fresh measurement by court commissioner when defects in map preparation are pointed out - The lower appellate court found deficiencies in the Tipan extract and absence of superimposed Tipan extract, which were material for deciding encroachment - Held that the remand order was proper to enable proper adjudication (Paras 1-3).
Issue of Consideration
Whether the lower appellate Court could have remanded the matter back to the trial Court for carrying out measurement by the Court Commissioner after removing the defects pointed out by the lower appellate Court?
Final Decision
The High Court dismissed the second appeal, upholding the remand order of the lower appellate court. The Cadastral Surveyor is required to carry out measurement by observing the procedure deposed by him, and the accurate map prepared can help the Court to adjudicate on existence of any encroachment.
Law Points
- Remand order by lower appellate court for fresh measurement by court commissioner is permissible when defects in map preparation are pointed out
- Civil Procedure Code
- 1908 (CPC) Order 41 Rule 23A
- Second Appeal under Section 100 CPC
