KISHAN KUMAR GOYEL Vs. BHAGWATI CHAND AND ORS.

JUDGEMENT

(1.) This matter arises out of a judgment dated 30.3.2010 passed by the learned Additional District Judge, Sonepur in R.F.A. No.22 of 2004 thereby remitting the matter to the trial court to frame a specific issue on the point of adverse possession and, thereafter, shall answer issue Nos.2, 4, 5 and 6 in exercise of power under Order 41, Rule 25 of the Code of Civil Procedure and to send the L.C.R. back with its findings together with the evidence along with reasons for its findings on or before 31.10.2010.

(2.) Challenging the impugned order of remand, Sri N.C.Pati, learned Senior Counsel submitted that the impugned order is excessive and illegal for the reasons that there was sufficient material available with the lower appellate court to take a decision on the question of adverse possession and, therefore, there was no necessity of remitting the matter for trial court's finding on the question of adverse possession.

(3.) From perusal of the trial court judgment, it is found that the plaintiff - appellant has a clear pleading in his plaint to the effect that taking advantage of recording of certain portion of the disputed land in the name of the son of the original owner i.e. defendant no.3 in bata Plot No.110/1646 extending to Ac.0.035 decimals, the defendant nos.1 and 2 along with their follower with a view to grab the suit property wanted to oust the plaintiff from the suit land and with such motive the defendant nos. 1 and 2 with the collusion of defendant no.3 created registered sale deed in favour of the defendant no.1 and with the help of such sham document initiated a Criminal Misc. Case bearing No.56 of 2002 before the Executive Magistrate, Biramaharajpur. Suppressing the material facts of existence of different structures of the plaintiff over the suit land obtained an ex parte order under Section 144 of the Code of Criminal Procedure and utilizing the said order criminally trespassed over the suit land on 5.9.2002 with the help of their followers and damaged the pucca fence of the plaintiff, the latrine, bath room, latrine tanki and such other establishment of the plaintiff over the suit property. The plaintiff further asserted that he has perfected title over the suit land by adverse possession by remaining over the same in open, continuous and peaceful possession by making different establishment of permanent nature over the suit land to the knowledge of the original owner without any objection.