Kuldip Chand Sood, J.@mdashThis appeal arises from the orders of remand made by learned Additional District Judge, Solan vide his judgment dated November 21, 2001.
2. It appears, Inderjit Chohdha filed a suit against the defendants Gian Chand Khatana, Harish Khatana and Ramesh Khatana for Permanent Prohibitory Injunction seeking to restrain the defendants from interfering in the land of the plaintiff comprised in Khasra numbers 831/558, 834/ 565 and 562 situate in mauza Kather, Tehsil and District Solan and cutting of two khadak trees on the said land.
3. The case of the plaintiff was that the suit land measuring 179 sq. mtrs. have two khadak trees standing on it. Plaintiff with an intention to develop the same for the construction of the house, wanted to cut these trees and for that purpose, he applied to the Municipal Committee, Solan. The permission was granted to cut these two trees on June 19. 1991. The plaintiff employed his labour to fell the trees but they were resisted by the defendants. Defendants threatened the labour with dire consequences if they felled the trees. It is in this background that plaintiff filed the suit.
4. Defendants resisted the suit. Allegations were controverted. It was admitted that Khasra Number 831/558 is owned and possessed by the plaintiff. The case of the defendants was that two trees in question are located in the adjoining land comprised in Khasra Number 832/558. which is owned by the defendant No.1 that measures 177 sq. mtr. and this land is in possession of the defendants. It was pleaded that the entire land was measured and there was a dispute regarding the boundaries of Khasra Numbers 558/5 and 558/6. The demarcation was carried by the Assistant Collector, 1st Grade. Solan on December 10, 1988, and it was found that the tatima of these two khasra numbers overlap and does not match with the area on the spot as the area on the spot was factually less by 42 sq. mtrs. The Assistant Collector 2nd Grade. Solan had advised that this loss of 42 sq. mtrs. of land should be shared equally by the owners of these two khasra numbers, i.e. 21 sq. mtrs. each. It was pleaded that the trees are located in the area in possession of the defendant since 1972, whereas, the plaintiff purchased his land in the year 1981 from one Om Prakash who was never in possession of this particular land.
5. On the pleadings of the parties, several issues were framed. This suit has a chequered history. By a judgment dated March 14, 1996, the learned trial Court dismissed the suit of the plaintiff holding that the evidence led by the plaintiff did not prove that the trees in question were located in the land purchased and possessed by him. On the contrary, held the learned trial Judge, these trees were found to be located in the land In possession of the defendant Gian Chand Khatana. Learned trial Judge concluded that the trees were located in khasra number 831/558, in possession of the defendants and definitely not on the land of the plaintiff. He relied upon the report of the Local Commissioner for this purpose.
6. Aggrieved, plaintiff filed an appeal before the learned District Judge, which was accepted by the learned Additional District Judge on September 6. 1996. Learned Additional District Judge concluded that the demarcation on which the learned trial Judge relied upon was not given in accordance with the procedure prescribed under the H.P. Land Records Manual and, therefore, remanded the case to the trial Court with the directions to appoint a Local Commissioner afresh "to demarcate khasra number 558 (original number 2099) out of which the parties and other persons have purchased the land through tatima sale" and thereafter to decide the case afresh in accordance with law. After the remand of the case, on December 9, 1996, District Revenue Officer. Solan was appointed as Local Commissioner to undertake the demarcation. Local Commissioner''s fee was not deposited. However, the commission was ultimately issued on May 20, 1997. Local Commissioner wrote to the learned trial Judge that necessary documents were not attached with the letter of commission. The case was adjourned from time to time for the receipt of the report of Local Commissioner. Ultimately, Commission was received back unexecuted on December 29, 1997. On April 1, 1998. learned trial Judge recorded that the case was pending for the report of the Local Commissioner for several months and he therefore, appointed Shri Madan Saroop, retired Sub-Divisional Magistrate, as the Local Commissioner. Mr. Madan Saroop expressed his inability to execute the Commission. Therefore, once again. Tehsildar Solan was appointed as Local Commissioner by the trial Court on May 26. 1998. Again the report was not received. Reminders were issued. On February 17, 1999, learned trial Judge decided to issue notice to the Commission to explain why the Commission was not executed inspite of repeated reminders. On March 15, 1999, Tehsildar Solan appeared in the court and sought certain clarifications. Learned trial Judge directed necessary clarifications to be issued. It was directed that khasra number 558/5 and 558/ 6. part of khasra number 558 be demarcated, their boundaries be fixed. Encroachment, if any was to be ascertained as also the exacl location of disputed khadak trees. The report of the Local Commissioner was received and the case was directed to be listed for arguments. However, learned trial Judge called the Local Commissioner for his statement regarding his report. An application was filed later on slating that the report of the Local Commissioner was not in accordance with the remand order passed by the learned Additional District Judge, Solan. On July 8. 1999. the learned trial Judge after considering the objections and hearing the parties, held that the report was illegal and cannot be looked into and fresh report was called for in accordance with the remand orders of learned Additional District Judge. He proceeded to appoint Mr. L. R. Chauhan. Additional District Magistrate, Solan as Commissioner to demarcate the land in question. The A. D, M. Solan expressed his inability to undertake the demarcation. Therefore, both the parties on August 4, 1999 agreed that Tehsildar Kandaghat be appointed as Local Commissioner. His report was received in March, 2000. The plaintiff filed objections, which were dismissed. Thereafter, the plaintiff again moved an application under Order 26 Rule 9. C.P.C. Learned trial Judge on October 24, 2000 decided this application and observed that though two local Commissioners were appointed on two different occasions after the remand of the case but the report failed to conclusively identify the land where the trees were located. The counsel for the defendants, during the course of arguments, suggested for appointment of another Local Commissioner to which counsel for the plaintiff agreed. Accordingly, Mr. Subhash Saklani, Tehsildar Solan was appointed Local Commissioner. He submitted his report. Defendants filed objections to the report of the Commissioner. The objections were upheld. The report of the Commissioner was set aside and suit was dismissed on the basis of the evidence on record.
7. In appeal, learned Additional District Judge by his impugned Judgment took a view that the Judgment of the trial Court was illegal as the learned trial Court set aside the report of the Local Commissioner (Ext. CW1/A) without appointing another Local Commissioner to demarcate the suit land or did not remit back the report to the same Local Commissioner with further directions. According to the learned first Appellate Court, as the Local Commissioner was appointed by the court in the present case, therefore, it was necessary for the trial Court to remit the "demarcation report to the Local Commissioner with a direction to file a fresh report or to appoint a fresh Local Commissioner." The learned First Appellate Court held that the judgment of the trial Court was not based on any oral or documentary evidence and was not in consonance with law and accordingly, accepted the appeal and remitted the case back to the learned trial Court with directions to send back the report to the Local Commissioner Subhash Saklani to file fresh report as per the directions of the Court or to appoint another Local Commissioner and thereafter decide the case afresh.
8. Aggrieved, the defendants are in appeal.
9. We have heard Mr. Aneesh Garg, learned counsel for the appellants and Mr. Neera J Gupta, learned counsel for the respondent.
10. It is noticed that in this particular case, several Commissions were issued by the learned trial Court but no report was found to be satisfactory. The plaintiffs suit was dismissed on March 14, 1996 as the learned trial Judge found that the trees were located in the land possessed by defendant Gian Chand Khatrana. In appeal, learned Additional District Judge remitted back the case to the trial Court with directions to appoint a Local Commissioner afresh. Again all the attempts of the learned trial Court to have a satisfactory report failed.
11. Learned trial Judge in his judgment categorically held that the report of the Local Commissioner was bad as it was based on the premise that the land, which was found short on the spot, must be in possession of the defendants. This, according to learned trial Judge, was contrary to the facts as the deficient land in possession of the plaintiff, compared to the revenue record could riot be attributed to the defendants without taking into consideration all the sale deeds regarding the sale of the various parcels of the land, including that of the plaintiff. He accordingly set aside the report, of the Local Commissioner and proceeded to decide the case on the basis of other evidence on record.
12. Learned First Appellate Court, in our view, was not right in remanding the case in its entirety, for fresh trial. More so when he gave his own findings on several other issues raised before him including that the findings given by the learned trial Court on issues No. 1, 2, 6 and 7 were not separate findings though the trial Court was "under legal obligation to give findings on each issue separately under Order 20, Rule 5, CPC".
13. Under Rule 23 of Order 41 an appellate Court is empowered to remand the case to the trial Court if the trial Court had disposed of a suit upon a preliminary point and decree is reversed in appeal. However, under Rule 23-A of Order 41. if the case is disposed of otherwise than on preliminary point and the decree is reversed, the case can be remanded back to the trial Court provided retrial is necessary. Rule 24 con templates a situation where the evidence on record is sufficient to enable the appellate Court to determine the suit. In such a situation, it is not open to the Appellate Court to remand the case to the trial Court. The appellate Court may, if necessary reset the issues and finally determine the suit even on the grounds different from that on which the lower Court proceeded. Rule 25 of Order 41 provides for the situation where the evidence on record is not sufficient to en able the appellate Court to decide the controversy in appeal but where the trial Court has failed to frame or try any issue to deter mine any question of fact, which in the opinion of the Appellate Court, was necessary for the right decision of the suit on merits. In such an eventually, the appellate Court may, if necessary, settle issues and remit the case to the trial Court for determination of these issues. The trial Court after deciding such issues, is to return the evidence to the Appellate Court together with its find ing and reasons for such findings within time as may be fixed by the Appellate Court or extended from time to time by the Appellate Court. In other words, the appellate Court cannot resort to wholesale remand of the case.
14. In the present case, the reasons which weighed with the learned Additional District Judge to remand the case in its entirety was that in his opinion, the trial Court ought to have appointed another Local Commissioner, after rejecting the report in question of the Local Commissioner or to have sent back the report to the Local Commissioner with the direction to file fresh report. The approach of the learned first Appellate Court in our view, was untenable and not in accordance with the well settled position of law.
15. Rule 9 of Order 26 provides for the appointment of Local Commissioners for the purpose of the local investigation or for elucidating any matter in dispute or for other allied purposes. The object of the local investigation is not to collect evidence, which can best be taken in the Court, but to obtain evidence, which from its very nature can only be gathered on the spot. The local investigation by a Commissioner is, in our opinion, merely to assist the Court and such report is not binding on the Court, which can arrive at its own conclusion on the basis of the evidence on record in variation to such a report. As held by this Court in Gulaba v. Hari Ram. 1982 Sim LC 85. the report of the Commissioner has a limited purpose to serve, that it, to appreciate the evidence on record with reference to the report of the Commissioner which he saw or investigated on the spot while inspecting the land. Rule 10(2) of Order 26 contemplates that the report of the Commissioner shall be part of the evidence in a suit and shall form part of the record. Evidentiary weight of a report will depend on the facts and circumstances of the case and the evidence adduced by the parties on record. Under sub-rule (3) of Rule 10 if the Court is dissatisfied with the proceedings of the Commissioner or report of the Commissioner, it can direct for further inquiry to be made as the Court may think fit. The Court thus, has a discretion to order a fresh commission or not. He is not bound to do so in every case where the report of the Local Commissioner is found to be unsatisfactory. The Court can decide the case on the evidence on record after setting aside the report of the Commissioner.
16. In the present case, the trial Court, in our view, did not commit any illegality in deciding the suit, after setting aside the report of the Local Commissioner, on the basis of the evidence on record when he felt dissatisfied with the report of the Commissioner.
17. If the appellate Court was of the opinion that the case could not be decided without the report of the Commissioner regarding the boundaries of the disputed land, then he himself could have appointed a commission or remitted the case back to the Commissioner with suitable directions for demarcation as contemplated by Rule 25 of Order 41 of the Code. u/s 107 of the Code, an appellate Court has the necessary power in this aspect. Sub-section (2) of Section 107 provides that appellate Court will have the same powers and shall perform as nearly as the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Therefore, learned first Appellate Court was not bereft of the powers to either send for fresh report from the Local Commissioner or appoint another Local Commissioner, if he felt that such a report was necessary for the decision of the case.
18. In our view, it was not one of those cases where retrial of the entire case was necessary. An order of remand under Rule 23A of Order 41 of the Code, as noticed earlier, operates as an open remand under which the whole case is remitted to the trial Court for retrial subject to no restrictions. The only purpose of the remand was to obtain either another report from the Local Commissioner already appointed or appointment of fresh local commissioner. The wholesale remand of the case was contrary to the provisions of Rule 23 and 23A of Order 41. which contemplates the remand of the case in its entirety.
19. We draw support for the view we have taken, from the ratio in
(a) the trial Court disposed, of the case otherwise than on preliminary point; and
(b) the decree is reversed in appeal, and a retrial is necessary.
20. It is only if these conditions are satisfied that the appellate Court can exercise the power of open remand under Rule 23-A as it is under Rule 23. Their Lordships ob-served (Para 10 of AIR) :
"The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the CPC by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a Court of appeal in Order 41, CPC. Rule 23 applies when the trial Court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate Court notices an omission on the part of the trial Court to frame or try any issue or to determine any question of fact, which in the opinion of the appellate Court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the Subordinate Court can try only such issues as are referred to it for trial and having done so the evidenee recorded, together with findings and reasons therefore of the trial Court, are required to be returned to the appellate Court. However, still it was a settled position of law before the 1976 amendment that the Court, in an appropriate case would exercise Us inherent jurisdiction u/s 151, C.P.C. to order a remand if such remand was considered preeminently necessary ex debito justitiae though not covered by any specific provision of Order 41. C.P.C, In eases where additional evidenee Is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate Court itself or by directing any Court subordinate to the appellate Court to receive such evidence and send it to the appellate Court. In 1976. Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate Court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied the appellate Court can, exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand, because as held in
21. All the cases of remand In its entirety are covered under Rule 23 and 23-A of Order 41 as observed by the Apex Court. Therefore, the first Appellate Court had no jurisdiction to remand the case in its entirety to the trial Court, only for the reason that the report of a Local Commissioner was necessary for the adjudication of the case,
22. As noticed by us the report of the Local Commissioner was only a piece of evidence to be weighed In context with the other evidence on record. It is open to the Court to decide a case on the basis of other evidence on record even if the report of the Local Commissioner is not satisfactory. It will not be appropriate for us to enter into the merits of this case at this stage. We however, are of the view that where a report of the Commissioner is absolutely necessary and the trial Court found the report of a Commissioner unsatisfactory or untenable, then proper course for the appellate Court is to direct appointment of another Commissioner for a fresh local investigation or to direct the trial Court to appoint another Local Commissioner or to call for the fresh report of the Local Commissioner already appointed by the trial Court.
23. In the facts and circumstances of this case, the first Appellate Court, in our view, had no jurisdiction to remand the case in its entirety to the trial Court for decision afresh on all the issues even if the report of the Local Commissioner was necessary, in the opinion of the learned Additional District Judge for the adjudication of the case.
24. To conclude, the orders of the first Appellate Court directing wholesale remand of the case is illegal and is unsustainable. We set aside the same. The appeal shall go back to the learned Additional District Judge who, after hearing the counsel for the parties, shall decide the appeal afresh taking into consideration the observations made therein above. The parties shall appear before the learned first Appellate Court on June 28, 2002.
CMP No. 83 of 2002.
25. No order in view of the disposal of the appeal.
