DEVESH Vs. RATIBAI

JUDGEMENT

(1.) This misc. appeal has been preferred by the appellant/defendant 1 challenging the judgment of remand dtd. 8/6/2022 passed by Additional Judge to the Court of first Additional District Judge, Betul in regular civil appeal no.400038/2016 reversing the judgment and decree dtd. 3/3/2016 passed by 3rd Additional Civil Judge to the Court of 1st Civil Judge Class-II, Betul in civil suit no.17-A/15 whereby, learned trial Court dismissed the suit, which in appeal has been remanded to trial Court for decision of civil suit afresh, after calling the demarcation report in respect of the land in question.

(2.) Learned counsel for the appellant concedes and submits that there is no dispute of title over the land in question but the appellant was given possession in pursuance of the order passed by Tahsildar under Sec. 250 of the M.P. Land Revenue Code, 1959 (in short 'the Code') and although the plaintiffs have challenged the proceeding of Sec. 250 of the Code in the civil suit but have not sought any declaration in respect of their title of land in question, therefore, civil suit itself is not maintainable and this question was raised before the first appellate Court but it has not considered the same and the matter has been remanded to trial Court as a whole with the direction of getting the disputed land demarcated owned by the plaintiffs as well as by the defendant 1. He further submits that if the first appellate Court was of the opinion that the demarcation is necessary, then also first appellate Court itself should have decided the appeal after issuing a commission for local inspection of the land in dispute but for that purpose remand was not permissible. With the aforesaid submissions, he prays for allowing the misc. appeal.

(3.) Learned counsel for the respondents 1-6/plaintiffs supports the impugned judgment of remand and submits that there is no illegality in the judgment of remand whereby considering the requirement of settled law, the matter has been remanded to trial Court for decision of suit afresh, after calling the demarcation report, however, he submits that he has no objection in deciding the appeal by first appellate Court itself after getting the land in question demarcated through some revenue officer.