TIAGA SINGH Vs. RAJ BALI SINGH

JUDGEMENT

(1.) Heard Sri Ravindra Rai learned Counsel for the defendant-appellant. Although the list of final hearing cases has been revised none appears on behalf of the plaintiff respondent. This is a defendants First Appeal From Order under Order XLIII, Rule 1(L), C.P.C. against the judgment and order dated 19.1.1984 passed in Civil Appeal No. 6 of 1984 by the VIth Additional District Judge, Mirzapur whereby he has allowed the appeal and remanded the matter to the Trial Court to decide the suit afresh. Learned Counsel for the appellant has submitted that the impugned judgment of the first. Appellate Court is patently illegal inasmuch as by the order dated 12.2.1984 the Trial Court had decided the Suit? No. 13 of 1984, Rajbali Singh v. Mitai Singh and others, on the basis that the parties had orally agreed to the modification of the Commissioners map and on the basis of the spot inspection done by the Court itself and therefore when the parties on the spot had orally agreed for modification of the Commissioners map there was nothing more that could be decided since the dispute was settled by them during the course of spot inspection. He submits that first Appellate Court has illegally remanded back the matter to the Trial Court to decide the case on merits inasmuch as in view of the order passed by the Trial Court there was no dispute left between the parties.

(2.) A perusal of the order dated 12.1.1984 passed by the Trial Court indicates that the Trial Court itself went to the spot for inspection and found that the Commissioners report and map had omitted to mention the correct position of the site. During the inspection the plaintiff and the defendant were present and they pointed out their dispute which according to the Trial Court was settled on the spot by demarcating the area meant for the plaintiff and the area meant for the defendant. The Trial Court by the order dated 12.1.1984 therefore modified the Commissioners map 16 ga-2 and made it a part of his own inspection report.

(3.) On the very same day i.e., 12.1.1984 the Trial Court proceeded to pass final order whereby he has recorded that since the necessary correction has been made in the Commissioners map on the pointing out of the plaintiff and defendant during the spot inspection there appears to be now no dispute between the parties and therefore has decreed the suit partly and made the Commissioners report and map a part of the decree.