LAWS(BOM)-1978-4-7

BALKRISHNA BHANUDAS CHILLAL Vs. NARAYANIBAI RAMKRISHNA KUKAL

Decided On April 27, 1978
BALKRISHNA BHANUDAS CHILLAL Appellant
V/S
NARAYANIBAI RAMKRISHNA KUKAL Respondents

JUDGEMENT

(1.) The parties own adjoining plots of land situate in the village of Soregaon in District Sholapur, the Petitioner being the owner of the plot bearing survey No. 175 and the Respondent being the owner of the plot bearing survey No. 174. Each party alleged that the other had encroached upon his plot of land. This led to disputes between the parties, and ultimately a joint application was made by them to the office of the Cadastral Surveyor to ascertain the boundaries of their respective lands. The survey was carried out by the Survey Officer and a plan was prepared which showed that the Respondent had encroached upon the Petitioner's land to the extent of five ares of land. Thereafter on the application of the Respondent a fresh survey was carried out in 1970 and a new plan was drawn which showed that the Petitioner had encroached upon the land of the Respondent to the extent of sixteen ares of land. According to the Petitioner, while the first survey was carried out after due notice to both the parties, the second survey was carried out without notice to the Petitioner. On the strength of the map prepared in the second survey the Respondent filed a suit in the Court of the Civil Judge, Junior Division, Akkalkot, on deputation at Sholapur, being Regular Civil Suit No. 403 of 1971, praying for possession of the portion which according to the map prepared in the said second survey was encreached upon by the Petitioner. At the trial of the said suit the Respondent produced a certified copy of the map prepared at the time of the second survey. The original of the said map was called for from the Settlement Department and the signature of the Survey Officer and of the District Inspector of Land Records who had verified the said map were got proved by the Respondent by examining another surveyor from the said department. Relying upon the said map the Respondent's suit was decreed. Against this decree the Petitioner filed an appeal, being Civil Appeal No. 114 of 1974, in the District Court, Sholapur. The said appeal was heard by the II Extra Assistant Judge, Sholapur. At the hearing of the said appeal it was contended on behalf of the Petitioner that the said map upon which the trial Court had based its finding had not been properly proved in evidence. Upon this two applications were filed on behalf of the Respondent requesting the lower Appellate Court to remand the case to the trial Court in case the Court came to the conclusion that the said map had not been proved by proper evidence. The lower Appellate Court pointed out that for what had happened the parties could not be entirely blamed and that had the trial Court refused to admit the certified copy of the map in evidence without the original being properly proved by calling in evidence the survey officer who had prepared it and the District Inspector of Land Records who had verified it, the Respondent would have led the necessary evidence. Accordingly the lower Appellate Court allowed the Petitioner's appeal, set aside the decree appealed against and remanded the suit to the trial Court for further hearing and disposal according to law. The lower appellate Court further directed the trial Court to give to the Respondent an opportunity to call and examine the Cadastral Surveyor and the District Inspector of Land Records to prove the said map or to get the boundary of her land and that of the Petitioner's adjacent land determined by the competent revenue authority by making a proper reference to the said authority. The lower appellate Court further directed that the Petitioner should also be permitted to lead additional evidence only with respect to the dispute relating to the boundary if he so desired and that the trial Court should take a fresh decision in the light of additional evidence that might be brought on the record by both the parties. It is the legality of this decision which is being challenged in this Revision Application by the Petitioner.

(2.) In Mr. Rege's submission, prior to the coming into force of the Civil P. C. (Amendement) Act, 1976, the only power of remand which a Court of Appeal possessed was under Order XLI, Rule 23 of the Code. Under the said R. 23 where a Court from whose decree an appeal is preferred had disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court could, if it thought fit, by order remand the case, and could further direct what issue or issues shall be tried in the case so remanded. Mr. Rege submitted that in a case where the trial Court had disposed of the suit not upon a preliminary point but upon merits and on all points raised before it, the Code did not envisage a remand by an appellate Court to the trial Court if it found that some evi- dence which ought to have been led was not brought on the record. In Mr. Rege's submission, in such an event the proper procedure for the appellate Court to have followed was the one under Order XLI, Rule 27 of the Code. Under that rule, as emended by this High Court, the parties to an appeal are not entitled to produce additional evidence, whether oral or documentary, in the appellate Court, but if the Court from whose decree the appeal was preferred bad refused to admit evidence which ought to have been admitted, or if the party seeking to produce additional evidence satisfied the appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by Mm at the time when the decree under appeal was passed or made, or if the appellate Court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the appellate Court may allow such evidence to be produced or witness to be examined.

(3.) Relying upon the provisions of the rules above referred to, Mr. Rege, learned advocate for the Petitioner, contended that the lower appellate Court was in error in setting aside the decree passed against the Petitioner. In his submission, the proper procedure for the lower appellate Court to have followed was to have taken additional evidence itself or to have directed the trial Court to take such evidence, but it was not open to it to set aside the decree and remand the suit for a fresh hearing. In support of this submission Mr. Rege relied upon three decisions of this High Court The first was the decision of a Division Bench of this Court in Annaji Ramchandra v. Thakubai Dattatraya Deshpande, 31 Bom. LR 208: (AIR 1929 Bom 175). In that case the Division Bench held that where a District Court was of opinion that certain findings of fact were necessary for the proper disposal of an appeal and that evidence should be led on those points, the correct procedure for ft was to frame issues and refer them for trial to the trial Court, and the trial Court should then return its findings to the District Court which must rehear the appeal so far as was necessary and dispose it of under Order XLI, Rule 25 of the Civil P. C. The Division Bench further held that in such a case it was not competent to the District Court to reverse the decree and remand the case for dis- posal under Order XLI, Rule 23 of the Code which only applied to a case where a suit had been decided upon a preliminary point. The other two decisions relied upon by Mr. Rege were of single Judges of this High Court. In Purushottam Dattatraya Shetye v. Yeshvadabai Jayadev Shetye. 37 Bom LR 203: (AIR 1935 Bom 216) Broomfield J., held that though the Court had no doubt an inherent power to remand a case even where Order XLI, Rule 23 of the Code did not apply, provided that the interests of justice required it, the Court had no inherent power to disregard a method of procedure enjoined or provided by the Code and adopt a different one unless it really was necessary in the interests of justice. Broomfield, J., further held that the High Court had power to interfere under its revisional jurisdiction with an order of remand passed by a lower appellate Court which purported to have been made under its inherent jurisdiction but which contravened the express provision of Rule 23 of Order XLI of the Code. The same view was taken by Rangnekar, J., in Motibhai Jesingbhai Patel v. Ranchhodbhai Shambhubhai Patel, 37 Bom LR 241: (AIR 1935 Bom 222).