2013 (9) TMI 1288 - HC - Indian Laws

Summary

Issues involved:
The issues involved in this case are:
1. Lower appellate court's decision to remand the case for amendment of plaint and seeking declaration of title and recovery of possession.
2. Lower appellate court setting aside judgment and decree passed by the trial court and remanding the case for conversion of the suit into one for declaration of title and recovery of possession.
3. Appellate court's exercise of power under Order XLI Rule 23 of the Code of Civil Procedure based on the evidence presented.

Issue 1: Lower Appellate Court's Decision to Remand the Case
The respondent/plaintiff sued for fixation of the eastern boundary of the suit property and for a prohibitory injunction, claiming ownership and possession as per a settlement deed. The trial court appointed an Advocate Commissioner to measure the properties, and based on the measurements, passed a decree for fixation of boundary. The lower appellate court set aside the judgment and decree, remanding the case for fresh decision with an opportunity for the respondent to amend the plaint. The appellant argued against the remand, stating that there was no scope for it and that Ext. C2(a) should be preferred over Ext. C1(a). The respondent's counsel contended that the trial court should have disposed of the application for amendment of the plaint before the suit's disposal.

Issue 2: Conversion of the Suit for Declaration of Title and Recovery of Possession
The lower appellate court's decision to set aside the judgment and decree passed by the trial court and remand the case for the conversion of the suit into one for declaration of title and recovery of possession was also challenged. The appellant claimed ownership of a portion of the property based on a settlement deed, denying the allegations of demolishing the eastern boundary. The respondent sought to incorporate a prayer for mandatory injunction in the plaint, which the trial court had not addressed before the suit's disposal. The court noted that the respondent had filed an application for amendment of the plaint towards the end of the suit, raising questions about the sufficiency of the allegations made in the affidavit supporting the application.

Issue 3: Exercise of Power under Order XLI Rule 23 of the Code of Civil Procedure
The appellate court's exercise of power under Order XLI Rule 23 of the Code of Civil Procedure was questioned, particularly regarding the measurement of properties based on re-survey records. The court observed discrepancies in the extent of land possessed by both parties as per different documents. The court emphasized the need for appropriate evidence to resolve these discrepancies and highlighted the importance of considering requests for amendment of the plaint. The court justified the remand of the case, allowing parties to amend their pleadings and request measurements based on old survey records.

In conclusion, the High Court dismissed the appeal, upholding the lower appellate court's decision to remand the case for further proceedings, emphasizing the importance of considering requests for amendment of the plaint and the need for appropriate evidence to resolve property disputes effectively.