MAQBOOL AHMAD Vs. MUNAWWAR KHAN & OTHERS

JUDGEMENT

(1.) This is defendant's appeal against the order of remand, The suit had been filed by the plaintiff for issue of injunction restraining the defendant from interfering in his possession over the land in question which is alleged to have been purchased by him under a deed dated 2-11-1940. The aforesaid document shows that one Abdulla was the owner of plot No. 3038 and he had granted certain rights to the plaintiff. In respect thereof, according to the case of the defendant the owner of the property was one Natthu about which the plaintiff's contention was that Natthu was the owner of plot No 3036 and not 3038 which was being claimed by him.

(2.) The trial court after appraising the evidence on record came to the conclusion that the plaintiff had failed to establish the title of his predecesor in interest in respect of plot No 3038 and accordingly the suit was dismissed. On appeal the lower appellate court has reversed the findings and has come to the conclusion that the learned Munsif had not considered some documentary evidence which was on the record and has also observed that the documentary evidence filed by the parties indicated that Abdulla was the owner of plot No. 3038. Despite this the court remanded the suit only on the ground that it was necessary to have plot No. 3038 and 3036 surveyed in order to find out whether rains which were conveyed under the deed dated 22-11-1940 existed in plot No. 3038 or 3036.

(3.) Having heard learned counsel for the parties find that the reason for ordering remand of the suit was not in accordance with law. As a matter of fact the entire evidence was before the appellate court and it could come to a different finding on the facts proved. For this purpose it was not necessary for the court to send down the suit for retrial. Even the question of survey could have been looked into by the appellate court itself or an issue could have been framed and remitted to the trial court for recording its findings thereon Remand of the suit unnecessarily causes delay in the trial of the suit involving loss of time and money. It is only as last resort that the remand should be ordered.