KALYAN Vs. JEEVANLAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment & decree dated 21.2.2006 passed by the second additional district judge (F.T.C.), Mungeli, in civil appeal no. 10-A/2005, whereby the learned second additional district judge has set aside the judgment & decree dated 4.3.2005 passed by the civil judge class-I, Mungeli, in Civil suit no. 30A/96 and remitted the case for fresh trail after affording an opportunity of hearing to the parties for local inspection by appointing commissioner. Judgment & decree is challenged on the ground that the appellate court was required to decide the appeal on the basis of fact and material available on record and was required to decide the appeal on all the grounds raised by the parties. Remand of the case is an exception and the court below has illegally remitted the case. I have Shri K.S. Kurre with Shri G.P. Kurre, counsel for the appellant, Shri Ravidra Agrawal, counsel for respondent No. 1 and Shri Sameer behar, Panel lawyer for the state/respondent no. 1 and perused the judgment & decree impugned and judgment & decree of the trial court.

(2.) SUIT for declaration and possession of khasra No. 116/2 area 0.02. acre situated at Mungeli was filed by present respondent No. 1 against the present appellant on the ground that the present appellant has dispossessed respondent No. 1 from his land. After affording an opportunity of hearing to the parties, learned civil judge class-I, Mungeli has dismissed the suit which was challenged by respondent No. 1 in civil appeal vide impugned judgment & decree. Case was remitted for affording an opportunity for local inspection by appointing a commissioner for measurement of the land. In this case, undisputed facts reveal that khasra No. 1126/2 was originally owned by late Anup Das. The present appellant has purchased 0.09 acre of the land of khasra No. 1126/2 from Anup Das in the year 1976 by registered sale deed and has also purchased part of the land i.e., 0.58 acre from Parvati Bai and he is in possession of the entire land. According to case of respondent No. 1 rest land i.e., 0.02 acre was purchased by the present respondent No. 1 from the legal representative of Anup Das namely, Chadraprakash and Chandresh. The present appellant has alleged that he has purchased 0.11 acre of the land in the year 1976 but erroneously and wrongly area was mentioned in the sale deed as 0.09 acre, but the appellant was in possession over 0.11 acre of the land since 1976. After remand of the case, learned civil judge class-I has decided the suit which is under challenged in appeal before competent forum.

(3.) PLEADINGS of the parties reveal that originally sale deed of 0.09 acre of the land was executed in favor of the appellant by Anup Das and subsequently sale deed of 0.58 acre of the land was executed by one Parvati Bai in favour of the present appellant. Accordingly vide two sale deeds, total 0.67 acre of the land was sold to the appellant though the appellant has specifically pleaded and deposed that instead of mentioning are 0.11 acre in the sale deed executed by Anup Das in the year 1976, erroneously the area was mentioned as 0.09 acre but he is in possession of 0.11 acre of the land since 1976. The present dispute is relating to only 0.02 acre of the land which does not appear in both the sale deeds executed in favour of the present appellant. The present appellant has not filed any suit for rectification of sale deed executed in the year 1976 or has tried to correct the area by filing suitable correction deed before registration authority. Both the parties have led their evidence before the trail court but they had not adduced any evidence to the effect that which part of khasra No. 1126/2 of the land was " land in dispute".