LILA BAI AND OTHERS Vs. CHANDRABHAN AND OTHERS

JUDGEMENT

(1.) This is an appeal under Order 43 rule 1 of CPC, 1908 against the judgment and decree passed in Civil Appeal No.62- A/09 dated 9.3.2010 whereby the judgment and decree passed in Civil Suit No.105-A/08 dated 30.6.2009 is set aside and matter is remitted back by the appellate court with certain directions.

(2.) Learned counsel for the appellants submits that the respondents/ plaintiffs filed a civil suit for permanent injunction which was registered as C.S.No.105-A/08. The trial court by judgment dated 30.6.2009 directed that the plaintiff is entitled to get a decree against the defendants to the extent of 6 feet shown in red colour in Ex.P/12 and said place may be used for movement of the plaintiffs and other residents of the colony. The defendants may raise construction after leaving said 6 feet. The said construction can be raised by the defendants in their own land. The plaintiffs filed Civil Appeal No.62-/09 which was decided by the impugned judgment.

(3.) Shri Ashok Tiwari submits that plaintiffs filed relevant document, map before the trial court. In addition, plaintiffs witnesses entered the witness box and deposed their statement. All the issues framed by the trial court were decided on merits. The plaintiffs did not file any application under Order 26 rule 9 CPC either before the trial court or before the appellate court. Nobody raised any objection before both the courts regarding non-joinder/ mis-joinder of parties yet, for no justifiable reasons, the appellate court remitted the matter back to the trial court for inspection and demarcation of land with further direction to implead the Gram Panchayat. He further submits that the judgment impugned is bad in law because it is not supported by any enabling provision under Order 41 rule 23, 23-A and 25 of CPC. It is argued that in a dispute relating to some portion of land, the Gram Panchayat is not a necessary party. Reference is made to (Shri Deo Raghunathji Bada Mandir Vs. Prahlad Singh, 2004 1 MPHT 97) to bolster the submission that where all evidence has been duly recorded before the trial court and it has decided the suit on merits on several issues which were framed, the appellate court has no power to remand. Such order of remand retards the progress of the case and puts it in reverse gear.