SMT. VANDANA CHANSAURIA Vs. GIRDHARI @ HALKA KACHI

JUDGEMENT

(1.) Being aggrieved by judgment of remand dated 17.9.2009 passed by District Judge, Chhatarpur in F.A. No. 40-A/2007 preferred by respondent No. 1/plaintiff and allowing the same, this appeal has been preferred by appellants/defendant Nos. 3 and 4.

(2.) A perusal of the record indicates that the plaintiff filed a suit seeking declaration and permanent injunction with respect to agricultural land. The said suit was defended by defendant Nos. 3 and 4 inter alia contending that they are the owners of the suit land. The State Government was joined as party to the proceedings but written statement was not filed by them. In any case, trial Court after recording the evidence of plaintiff as well as defendant Nos. 3 and 4 dismissed the suit. On filing the appeal by plaintiff, the appellate Court called the original record of the land in question and after perusal certain findings against defendant Nos. 3 and 4 were recorded and also considering the fact that the State Government has not been given an opportunity to file written statement and to lead the evidence, therefore, set aside the impugned judgment and decree and directed to decide the suit afresh.

(3.) Learned counsel appearing for appellants/defendant Nos. 3 and 4 referring various paragraphs of the impugned judgment contends that the appellate Court has made various observations, which are contrary to the pleadings and evidence brought on record by both the parties. It is also contended that power has been exercised suo motu by the appellate Court to call for the record from the office of the Collector and referring only Khasra entries without going through Misal Bandobast, recorded the finding against the defendants. Even if the remand is directed however the findings recorded by the appellate Court would prejudice the right of the defendants/appellants. In addition to the aforesaid, the appellate Court has not recorded the finding, in what circumstances retrial is considered necessary and judgment of remand has been passed. In absence thereto, the appellate Court has committed error to pass impugned judgment.