9911796707
TMI Blog2013 (9) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower appellate court, was the lower appellate court justified in remanding the case to the trial court to enable the plaintiff to amend the plaint and seek a declaration of title and recovery of possession? 2) When even the plaintiff did not file any application for amendment of the plaint, was the lower appellate court right in setting aside judgment and decree passed by the trial court and remanding the case to the trial court to enable the plaintiff convert the suit into one for declaration of title, recovery of possession etc.? 3) When there has already been a trial on evidence before the court of first instance, was the appellate court right in exercising its power under Order XLI Rule 23of the Code of Civil Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o got the said property as per a gift deed No. 1208 of 1957 executed by predecessor-in-interest of the respondent. He denied the allegation of demolition of eastern boundary of the suit property. 4. The trial court appointed an Advocate Commissioner to measure property of the appellant and the respondent. Exts. C1 and C1(a) are the report and plan obtained after measurement as per the documents of title while Exts. C2 and C2(a) are those obtained after measurement based on re-survey records. The trial court preferred Exts. C2 and C2(a) to Exts. C1 and C1(a) and passed a decree for fixation of boundary. Aggrieved, the respondent preferred A.S. No. 297 of 2007. Learned Additional District Judge noticed that the respondent had, during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent has contended that the trial court was bound to dispose of I.A. No. 855 of 2006 before disposing of the suit. It is pointed out that in the application for appointment of the Advocate Commissioner, request was to measure the properties with reference to the document of title and survey records, meaning thereby the old survey records. According to the learned counsel, the changes if any, brought about in the re-survey cannot confer title to the property. 7. Because there is changes in the extent of the property in the re-survey, that by itself would not confer title. Even beyond the period of one year after finalisation of resurvey, a suit on title disputing the re-survey is maintainable. The suit in this case is originally filed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document of title and resurvey. 10. It is to be noticed that even as per Exts. C2 and C2(a), extent of land in the possession of the appellant is found to be 10.7936 cents (as against 10 cents covered by Ext. B1) while, so far as property in the possession of the respondent is concerned, as against 30.7936 cents referred to in Ext. A1, it is 27.150 cents. Of course, the appellant has a contention that the deficit in extent of property belonging to and in the possession of the respondent occurred on account of certain extent being in the possession of third parties towards the northern portion of the property on the immediate north of property of the appellant. These are the matters which the trial court has to decide after recording ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or amendment of the plaint to what is stated in I.A. No. 855 of 2006. I also make it clear that it is open to the parties or any of them to request the trial court to get the properties measured as per the old survey also if such a course if possible. It is open to the parties to file their objection to Exts. C1 to C2(a) or the report and plan that may be obtained based on the measurement of the properties as per the old survey. I make it clear that I have not expressed any opinion regarding the merit of the contentions the parties have raised and that the observations made by me based on Ext. C2(a) is no indication as to the mind of this court regarding the Correctness of the contentions the parties have raised. The substantial questions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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