LAXMI MAHTO Vs. LEELA DEVI @ BINDE SHWARI DEVI

JUDGEMENT

(1.) Heard learned counsel representing the parties. With consent of learned counsel the matter is being disposed of finally at this stage. This is an appeal preferred against judgment of remand delivered in Title Appeal No. 52/2006 by learned 4th Additional District Judge, F.T.C.-IV, Samastipur.

(2.) Admittedly, plaintiff respondent preferred Title Suit No. 43/1995 for declaration of Title and recovery of possession over the suit land as mentioned in detail in the plaint with a relief of mesne profit of injunction etc. On consideration of the materials available suit was dismissed on 28.4.2006 giving rise to the appeal, where the appellate court arrived at the conclusion to remand the case with a direction to the trial court to take steps for appointment of fresh Survey Knowing Pleader Commissioner for getting scientific measurement report on the point which is as such:--

(3.) It is undisputed fact that initially a Survey Knowing Pleader Commissioner was appointed as early as on 20th December, 1995, but somehow or the other his appointment was recalled on 28th February, 2002 and next date fixed i.e. 13.3.2002, petition was filed before the trial court for appointment of another Survey Knowing Pleader Commissioner, but since petition was not pressed it appears dismissed on 26.4.2002, and also as is evident from the order of appellate court that earlier appointed Survey Knowing Pleader Commissioner, as submitted, his report and it was argued on behalf of the plaintiff respondent (appellant there) that such report could have been considered by the trial court which he did not and this appears prompted, the appellate court, who on finding that such report could not have been considered remand the matter for taking fresh step as stated above.