RAM SAGAR SINGH Vs. BALESHWAR SINGH

JUDGEMENT

(1.) THE appeal is directed against the order dated 11th of March, 2010 passed by the District Judge, Vaishali at Hajipur in Title Appeal No.23 of 2008, whereby the judgment and decree in Title Suit No.132 of 1997/251/2008 was set aside and the matter was remanded to the trial court for hearing and passing judgment afresh. The appellant herein-intervenor of the said title suit has preferred the present appeal.

(2.) MR Siddhartha Prasad, learned counsel appears for the appellant, Mr. Pankaj Kumar, learned Assistant Counsel to Government Advocate No.8 appears for the State and Mr Vijay Kumar, learned counsel appears for respondents no.6 to 9. However, no one appears on behalf of respondents no.1, 2 and 3.

(3.) LEARNED counsel appearing for the appellant contends that the appellate court has committed serious error in remanding the matter to the trial court primarily on the ground that the plaintiffs ought to have been given an opportunity for fresh appointment of Advocate Commissioner and to submit a report as to whether R.S.P. No.1351 and 1350 are carved out from old khesra No.725. It is submitted that as a matter of fact, the Advocate Commissioner was already appointed, who had given his report, vide Ext.6, stating therein that R.S. Plot no.1350 and 1351 were not carved out from old khesra no.725. Said Survey knowing Pleader Commissioner was examined as P.W.8. It is further contended that the plaintiffs after submission of the report of the Pleader Commissioner made attempt twice for appointment of fresh Advocate Commissioner, which was not allowed by the trial court, against which the plaintiffs preferred civil revision application, vide Civil Revision No.1519 of 2004, which was dismissed as withdrawn by order dated 11.11.2004 and later, for the same cause another civil revision application was filed vide Civil Revision No.1115 of 2004, which was dismissed by order dated 24.1.2005 and by dismissing the said civil revision application, this Court observed that the plaintiffs had already examined survey knowing Pleader Commissioner and, therefore, there is no necessity for the court to appoint another survey knowing Pleader Commissioner to repeat the evidence which was already available on record. Notwithstanding the above, it is further submitted that the evidence was already available before the appellate court and as such, the appeal ought to have been decided on merit instead of remand causing further delay in adjudicating the disputes between the parties.