RAMNARAYAN RAMNATHJI MANTRI Vs. BHERULAL BANECHAND

JUDGEMENT

(1.) THE appellant, who is original plaintiff has filed this appeal against the judgment and decree passed by the Assistant Judge, Amraoti in Reg. C. A. No. 127 of 1974, confirming judgment and decree passed by Joint C. J. J. D. , Amraoti in Reg. C. S. No. 89 of 1970 to the extent of dismissal of instant suit asking for mandatory injunction against respondents original defendants regarding removal of wooden rafters and bamboos and tiles of the chhapri resting on the suit wall of the basis that the suit wall belongs to the plaintiff.

(2.) PLAINTIFFS original case was that this suit wall which was shown by letters " " in the Commissioners map Exh. 66 exclusively belongs to him and defendant has no right whatsoever to the said wall. This claim of the plaintiff that he is the exclusive owner has been negatived by the courts below. However, at the earlier stage when this appeal was heard by me on 21-6-1991, a grievance was made by Shri Mohta learned Counsel for appellant that the courts below had not framed specific issue on the plaintiffs alternative plea that even if the plaintiff was not the exclusive owner of this wall, he had constructed this wall away from the foundation of old wall within his own property purchased by him and consequently it was necessary that an issue should be framed and a finding recorded thereon. In the circumstances, by my order of the same date, I remitted an issue, "whether the plaintiff proves in the alternative that the portion of the wall shown by letters " " in the Commissioners map Exh. 66 was constructed by him away from the foundation of old wall, which belongs to the defendants and within his own property purchased by him" to the trial Court to record a finding after giving opportunity to both parties to lead evidence if they so choose and certify the said finding through the District Court. It appears that the learned trial Judge after giving opportunity to both parties to lead evidence has recorded a finding against the plaintiff. On the previous occasion, the learned trial Judge submitted said finding directly to this Court and therefore, papers were again sent back with a specific direction that the finding should be certified through the District Court. Accordingly, it seems that the papers alongwith finding were submitted by the Joint Civil Judge, Jr. Dn. , Amraoti to the District Judge, Amraoti for certifying the finding.

(3.) IT appears from the proceedings before the learned District Judge that although plaintiff specifically filed his objection to the finding recorded by the trial Court and asked for a hearing before the District Judge, the learned District Judge has rejected the said prayer and has merely forwarded the finding of the trial Court by saying that he certifies it as directed by the Honble High Court. In following this procedure either the learned District Judge has displayed his own ignorance or perhaps he was misled by the counsel for defendants, who objected to the hearing before the District Judge on the specious plea that there is no direction from the High Court to the District Court to give its own finding on the finding submitted by the trial Court to the District Judge. As things would have it, the position is that the learned District Judge did not give any opportunity to the parties to challenge or support the finding recorded by the trial Court on the issue remitted by this Court. Had the learned District Judge taken pains to go through the relevant provisions of Order 41 of C. P. C. , he would have immediately found that when a finding is remitted to the trial Court by the High Court with a direction to certify it through District Court, the District Court is duty bound to give hearing to the parties and hear whatever their objections are to the finding recorded by the trial Court and then submit his own finding with his own reason in support thereof. I hope in future correct procedure will be followed by the Appellate Courts in the Districts, whenever an issue is remitted to the trial Court for recording a finding and certifying the same through the District Court.