NAND LAL Vs. HARBANS LAL

JUDGEMENT

(1.) This is a Defendant's appeal arising out of a suit for possession.

(2.) The Plaintiff alleged that the Defendants had encroached upon a portion of the land belonging to him situated in Khasra No. 1445, and therefore, prayed for possession. The Defendants contested the suit on the allegation that the land in dispute belonged to them and their house had stood on it for over 40 years and they had also planted trees there. It was also pleaded that the suit was barred by time. During the proceedings before the trial Court, it was found necessary to appoint a local Commissioner in order to ascertain whether, and if so to what extent, they had encroached upon the land belonging to the Plaintiff. The trial court appointed an Advocate as local Commissioner. The local Commissioner submitted a report in which he expressed the view that a small portion of the land belonging to the Plaintiff had been encroached upon by the Defendants. The trial Court considered the report but did not accept it and held that the Defendants had not encroached upon any land of the Plaintiff. Accordingly, it dismissed the suit. The Plaintiff appealed, and the appeal has been allowed by the learned District Judge, Kangra and the case remanded to the trial Court for a fresh trial. The Defendants have now come in appeal to this Court.

(3.) At the outset, learned Counsel for the Plaintiff -Respondent has raised a preliminary objection that the appeal does not lie. He points out that the learned District Judge has specifically remanded the case under Sec. 151 of the Code of Civil Procedure, and no appeal lies against an order of remand under that provision. It seems to me that the order of remand is properly attributable to Order 41 Rule 23A of the Code. Order 41 Rule 23 covers cases where the appeal is disposed of on a preliminary point and the decree is reversed in appeal, and the appellate court remands the case. Order 41 Rule 23A was enacted by the Punjab High Court and provides: