Case Note & Summary
The appellant, original defendant in a suit for removal of encroachment, challenged the order of the District Judge-3, Yavatmal, dated 05/07/2016 in RCA No.32/2007, whereby the first appellate court remanded the suit to the trial court for fresh measurement of the land by the Government Surveyor. The respondents/plaintiffs claimed ownership of Survey No.194/3 at village Ner, purchased from Ravindra Ganpat Raut on 06/05/1985, and alleged that the defendant had encroached upon their land. The trial court dismissed the suit, disbelieving the measurement evidence of the Government Surveyor (PW-1) as not correct and proper. In appeal, the first appellate court, without setting aside the trial court's findings on the evidence, remanded the suit for remeasurement by following proper procedure. The appellant contended that such remand was illegal as it allowed the plaintiffs to fill gaps in their evidence. The High Court examined the scope of Order 41 Rule 23 CPC and held that a remand is permissible only when the trial court disposes of the suit on a preliminary point or when the appellate court finds that the findings on all issues are necessary. Here, the trial court had decided the suit on merits after considering evidence, and the appellate court did not reverse any finding. The High Court allowed the appeal, set aside the remand order, and restored the appeal to the first appellate court for fresh disposal on merits in accordance with law.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - First appellate court cannot remand suit for fresh measurement without setting aside trial court's findings on evidence - The trial court had disbelieved the measurement evidence of the Government Surveyor; the appellate court, without reversing that finding, remanded the suit for remeasurement. Held that such remand is impermissible as it amounts to filling gaps in plaintiff's case (Paras 1, 6-8). B) Civil Procedure - Appellate Court's Powers - Order 41 Rule 23 CPC - Remand requires satisfaction that suit was disposed of on preliminary point or that findings on all issues are necessary - The appellate court must first set aside the decree and then remand; here, the appellate court did not set aside the trial court's findings but merely ordered remeasurement. Held that the order of remand was illegal and without jurisdiction (Paras 6-8).
Issue of Consideration
Whether in a suit for removal of encroachment, if the plaintiff's evidence of Government Surveyor is not relied upon by the trial court, the first appellate court can remand the matter for remeasurement by following proper procedure?
Final Decision
The appeal is allowed. The impugned judgment and order dated 05/07/2016 passed by District Judge-3, Yavatmal in RCA No.32/2007 is set aside. The appeal is restored to the file of the first appellate court for fresh disposal on merits in accordance with law. No order as to costs.
Law Points
- Remand under Order 41 Rule 23 CPC requires setting aside findings on issues
- Remand for fresh evidence not permissible without reversing trial court's appreciation of evidence
- First appellate court cannot order remeasurement without finding trial court's measurement evidence unreliable
