# Jamuna Prasad @ Yamuna Prasad v. Harilal

- **Citation:** (2024) 9 ILRA 638
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-24
- **Case number:** First Appeal From Order No. 244 of 2022
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamuna-prasad-yamuna-prasad-v-harilal-52413
- **Pages:** 11

## Headnote

A. Civil Law - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 9 - Code
of Civil Procedure, 1908 - Rules 23, 23A,
24 & 25 - Appeal was filed on ground that
trial court has passed judgment and
decree without considering pleadings,
evidence, material on record, commission
report etc - Admittedly all the material for
deciding suit was before trial court and no
evidence was required to be placed on
record for passing judgment and decree in
suit. (Para 11)

B. Regarding first and second point of
determination,
first
appellate
court
concluded that trial court should have
passed order but trial court has not done
so and passed order in a cursory manner -
The view expressed by trial court does not
seem in accordance with law - In such
situation, first appellate court found that
case was liable to be remanded to trial
court for passing fresh order in view of
observations made by first appellate
court. (Para 18)

C.
While
considering
third
point
of
determination, first appellate court found
that appellant succeeded in proving that
land in dispute was his sehan land, of
which he was owner and in possession
since time of his ancestors - His trees and
tap are situated on said land - Thus,
appellant was entitled to permanent
injunction. (Para 19)

Held, appellate court has not found that
evidence on record was not sufficient to
dispose of case finally, not recorded any
finding that any issue has not been
framed, which was required to be framed
and evidence on same was required to be
adduced
by
parties
-
In
such
circumstances,
appellate
court
itself
should
have
determined
suit
finally
instead of remanding matter to trial court
- Impugned order set aside, directions
accordingly. (Para 20)

Appeal allowed. (E-13)

List of Cases cited:

## Text

638 INDIAN LAW REPORTS ALLAHABAD SERIES
unless a survey of the contiguous Khasra
Nos. 5751/1, 5751/2, 5751/3, 5751/4,
5751/6, 5751/7, 5751/8, 5751/9, 5751/10,
5751/11, 5751/12 on one hand, and Khasra
No.5751/5 on the other, is duly carried out
according to the fixed point method. If that
survey is not possible, the location of the
suit property in the precise Khasra numbers
has to be determined through the total
station method.

39. In this view of the aforesaid
conclusions, Substantial Question of Law
No. (iii) is answered in the affirmative.

40. In view of the answer to
Substantial Question of Law No. (iii), the
unnumbered one framed at the time of
admission of the appeal as well as
Substantial Question of Law No.2, need not
be answered as the judgment of the Lower
Appellate Court would have to be set aside
with a remit of the matter to that Court with
a direction to hear and decide the appeal
afresh, after causing a fixed points survey
of the suit property with regard to its
location in one set of plot numbers or the
other, or failing a fixed point survey taking
resort to the total station method.

41. The result would be that the decree
passed by the Lower Appellate Court
would have to be set aside with a remit of
the matter to that Court with the direction
that the location of the suit property in one
Khasra
number
or
the
other,
and,
particularly, if it is located in Khasra
No.5751/5 or in the contiguous Khasra
Nos. 5751/1, 5751/2, 5751/3, 5751/4,
5751/6, 5751/7, 5751/8, 5751/9, 5751/10,
5751/11, 5751/12, shall be determined
through
the
agency
of
a
Survey
Commission, who would undertake it
following the three fixed points method. If
the Survey Commission fails for the nonavailability of three fixed points, a fresh
commission shall be issued to a trained
agency to determine the location of the suit
property as aforesaid following the total
station method. Upon submission of a
report by the Survey Commissioner,
following the fixed point method, or the
total station method, as the case may be,
the parties would have a right to object and
lead necessary evidence. The Lower
Appellate Court will then re-hear and
decide the appeal afresh, all to be done
within a period of six months from the date
of receipt of a copy of this judgment and
order.

42. In the result, this appeal succeeds
and is allowed in part. The impugned
decree passed by the Lower Appellate
Court is set aside with an order of remand
in above terms.

43. The costs of this appeal shall abide
by the event in the appeal before the Lower
Appellate Court.

44. Let the lower court's records be
sent down at once.
----------
(2024) 9 ILRA 638
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

First Appeal From Order No. 244 of 2022

Jamuna Prasad @ Yamuna Prasad
 ...Appellant
Versus
Harilal ...Respondent

Counsel for the Appellant:
Sri Rajesh Kumar
9 All. Jamuna Prasad @ Yamuna Prasad Vs. Harilal
639
Counsel for the Respondent:
Sri Kaushal Tiwari

A. Civil Law - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Section 9 - Code
of Civil Procedure, 1908 - Rules 23, 23A,
24 & 25 - Appeal was filed on ground that
trial court has passed judgment and
decree without considering pleadings,
evidence, material on record, commission
report etc - Admittedly all the material for
deciding suit was before trial court and no
evidence was required to be placed on
record for passing judgment and decree in
suit. (Para 11)

B. Regarding first and second point of
determination,
first
appellate
court
concluded that trial court should have
passed order but trial court has not done
so and passed order in a cursory manner -
The view expressed by trial court does not
seem in accordance with law - In such
situation, first appellate court found that
case was liable to be remanded to trial
court for passing fresh order in view of
observations made by first appellate
court. (Para 18)

C.
While
considering
third
point
of
determination, first appellate court found
that appellant succeeded in proving that
land in dispute was his sehan land, of
which he was owner and in possession
since time of his ancestors - His trees and
tap are situated on said land - Thus,
appellant was entitled to permanent
injunction. (Para 19)

Held, appellate court has not found that
evidence on record was not sufficient to
dispose of case finally, not recorded any
finding that any issue has not been
framed, which was required to be framed
and evidence on same was required to be
adduced
by
parties
-
In
such
circumstances,
appellate
court
itself
should
have
determined
suit
finally
instead of remanding matter to trial court
- Impugned order set aside, directions
accordingly. (Para 20)

Appeal allowed. (E-13)

List of Cases cited:

1. Shivakumar & ors. Vs Sharanbasappa & ors.;
2020 AIR(SC) 3102/2020 LawSuit(SC) 345,
(Para 25)

2. J. Balaji Singh Vs Diwakar Cole & ors.; (2017)
14 SCC 207, (Para 13, 14, 18, 19)

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Shri Rajesh Kumar, learned
counsel for the defendant/appellant and
Shri Kaushal Tiwari, learned counsel for
the plaintiff/respondent.

2. This first appeal from order has
been preferred under Order XLI Rule 1(u)
of Civil Procedure Code, 1908 (hereinafter
referred to as "C.P.C.") against the
judgment and order dated 10.02.2022
passed in Civil Appeal No. 11 of 2021;
Harilal vs. Jamuna Prasad by District
Judge, Ambedkar Nagar, by means of
which
the
appeal
filed
by
the
plaintiff/respondent has been allowed and
judgment and order dated 05.12.2019
passed in Regular Suit No. 476 of 1997;
Harilal vs. Jamuna Prasad by Civil Judge,
Junior Division, Ambedkar Nagar has been
set aside and the case has been remanded to
the trial court to decide afresh in
accordance with law and the observations
made in the same.

3. Learned counsel for the
appellant submits that the first appellate
court has wrongly and illegally allowed and
remanded the matter for deciding afresh,
whereas all the pleadings, evidence and
material on record were before the first
appellate court and the first appellate court
has recorded findings on the basis of
material on record and remanded the matter
640 INDIAN LAW REPORTS ALLAHABAD SERIES
only on the ground that the evidence has
properly not been appreciated, while the
first appellate court has to decide the appeal
considering the pleadings, evidence and
material on record as trial court and it could
have decided the case finally instead of
reminding the matter. Thus, Learned
counsel for the appellant submits that the
impugned judgment and order is not
sustainable in the eyes of law and is liable
to be set aside and the matter may be
remanded to the first appellate court to
decide the appeal on merit in accordance
with law. He relies on Shivakumar and
others vs. Sharanbasappa and others;
2020 AIR(SC) 3102/2020 LawSuit(SC)
345.

4. Per contra, learned counsel for
the respondent submits that learned first
appellate court has rightly remanded the
case in accordance with law to decide the
suit afresh because the learned trial court
has failed to properly appreciate the
pleadings, evidence and material on record
and the law laid down by the Hon'ble Apex
Court and this Court. He further submits
that the learned trial court has also failed to
consider the report of the commissioner
and the site plan prepared, which were on
record, therefore, there is no error or
illegality in the impugned judgment and
order. However, he could not dispute that
all the pleadings, evidence and commission
report etc. were on record and the first
appellate court could have passed the final
order after considering the same.

5.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

6. The plaintiff/respondent filed
suit for permanent injunction on the ground
that the land in dispute shown in the site
plan annexed with the plaint is old abadi
and sehan land and his house is adjacent to
the land in dispute on the western side. The
sehan darwaja opens in the land in dispute,
which is being used by his family members
for
sitting,
sukhvan
and
for
other
agricultural and household purposes since
prior to abolition of zamindari. There are
two thala Kothi Bans, one tree of Gular,
hand pipe, haudi and khoota in the land in
dispute, as such, he is owner of the land in
dispute under Section 9 of U.P. Zamindari
Abolition and Land Reforms Act. The
defendant/appellant has no concern with
the land in dispute. The defendant/appellant
is a muscle man and on the basis of his
muscle power, he is threatening to open
door in the land in dispute on the
instigation
of
local
police
and
administration since the last week of June,
1997. The sehan of the defendant/appellant
is on the east side of his house. The
defendant/appellant, after hearing about the
suit, with the help of the local police and
some enemies of the plaintiff/respondent
has constructed a wall of bricks forcefully
before commission, which has been shown
in the site plan. Thus, the suit for
permanent injunction and for demolition of
wall constructed by the defendant/appellant
and handing over possession back to the
plaintiff/respondent.

7.

The
defendant/appellant
contested the suit by filing written
statements denying the averments made in
the plaint and alleging that the wrong site
plan has been filed alongwith the suit. It
has further been stated that the wall
existing on the western hata of his house on
the western side, which was of mud had
shortened, therefore, he had planned to
construct a wall of bricks, which was
opposed
by
the
plaintiff/respondent,
therefore, he gave an application to the
9 All. Jamuna Prasad @ Yamuna Prasad Vs. Harilal
641
Pargana Adhikari, Jalalpur for protection
from
the
plaintiff/respondent
for
reconstruction of the wall. It was further
alleged that after inquiry in the complaint
made by the defendant/appellant and with
the intervention of the previous and the
present Gram Pradhan, it was decided, on
the basis of compromise, that a wall will be
constructed
leaving
four
hand
land.
Accordingly, the wall of 22 Radda was
constructed. It was further alleged that in
the east side of the boundary, his two
thatches and the trees of Mango, Badhal,
Goolar, Lahchaura and Kothi bans planted
by
his
father
are
existing.
The
plaintiff/respondent has wrongly shown his
pipe in the land in dispute, whereas the
same is existing beyond his boundary wall
at a distance on the western side and on the
southern side of the house of the
plaintiff/respondent and the main sehan of
the plaintiff/ respondent is also situated on
the eastern side, accordingly, his sariya is
also adjacent to his house. The house of the
plaintiff/respondent had never been on the
eastern side of the A.C. Line and he has no
right to use the said land. The possession of
the plaintiff/respondent had never been on
the land in dispute, therefore, the suit may
be
dismissed.
An
additional
written
statement was also filed, before the trial
court, denying the averments made in the
plaint.

8. On the basis of the pleadings of
the parties, six issues were framed by the
trial court. Thereafter, evidence of P.W. 1Harilal, P.W. 2-Ambeylal and P.W. 3Haridarshan
was
recorded,
but
no
documentary evidence was filed on behalf
of the plaintiff/respondent. On behalf of the
defendant/appellant, the evidence of D.W.
1-Jamuna, D.W. 2-Ram Deen and D.W. 3Hari Prasad was recorded. On his behalf,
copy of the Nakal Report Chalani, Police
Station Malipur dated 22.07.2010 and case
State vs. Jamuna Prasad under Section
18/116 IPC, court of Up Zila Magistrate,
Jalalpur and Nakal Report Chalani, Police
Station Malipur dated 10.07.2010, case
State vs. Jamuna Prasad etc. Case No. 1490
of 2010, under Section 18/116 IPC court of
Up Zila Magistrate Jalalpur were filed as
Paper Nos. 41ga and 42ga alongwith the
list 40ga in documentary evidence. The
learned trial court, after considering the
pleadings of the parties, evidence and
material on record and hearing, dismissed
the suit. Being aggrieved, the Civil Appeal
was filed by the plaintiff/respondent before
the court below.

9. The court below recorded that
the main objection against the judgment
and decree passed by the trial court is that
the learned trial court has passed the
impugned
order
without
perusing
appropriately pleadings of both the parties,
facts and evidence available on record and
circumstances of the case. The learned trial
court has also ignored the guidelines
determined by Hon'ble Supreme Court and
this
High
Court
while
passing
the
impugned order. The learned trial court has
also not considered the commission report
and site plan, therefore, the impugned order
is not sustainable, therefore, the appropriate
order may be passed setting aside the
impugned order. The relevant Paragraph 9
of the impugned order is extracted
hereinbelow:-

 "9. अपीलार्थी/वादी द्वािा भवद्वान अवि न्यायालय
द्वािा पारित आक्षेभपत भनणटय एवं आदेश के भवरूद्ध मुख्य रूप से यह
आपभि की गयी है भक भवद्वान अवि न्यायालय ने उिय पक्ष के
अभिकर्थनों तर्था पत्रावली पि उपलब्ध तथ्य साक्ष्य एवं परिभस्र्थभतयों
का सम्यक् ढंग से परिशीलन भकये भबना आक्षेभपत आदेश पारित
भकया है। भवद्वान अवि न्यायालय ने माननीय उच्च न्यायालय व
माननीय उच्चतम न्यायालय द्वािा भनधाटरित गाइड लाइन की अनदेखी
किके आक्षेभपत आदेश पारित भकया है। भवद्वान अवि न्यायालय ने
642 INDIAN LAW REPORTS ALLAHABAD SERIES
अमीन आयुक्त द्वािा प्रस्तुत आख्या व मानभचत्र को नर्िन्दार् किते
हुए आक्षेभपत आदेश पारित भकया है, र्ो अभस्तत्व में िहने योग्य नहीं
है। अतः उसे अपास्त किते हुए यर्थोभचत आदेश पारित भकया र्ाय।"

10.

The
defendant/appellant
opposed the submissions of learned counsel
for the plaintiff/respondent and stated that
the learned trial court has passed the
judgment and decree after considering the
facts and evidence available on record and
circumstances of the case, in which there is
no error, therefore, the appeal is liable to be
dismissed. The relevant paragraph 10 of the
impugned order is extracted hereinbelow:-

 "प्रत्यथी / प्रसति दी के सिद्व न असििि द्व र
अपील थी के उपरोि तकों ि तथ्यों क खण्डन सकय गय और यह
कथन सकय गय सक सिद्व न अिर न्य य लय ने पत् िली पर
उपलब्ि तथ्य, क्ष्य एििं पररसस्थसतयों को दृसिगत रखते हुए
आिेसपत आदेि प ररत सकय है, सज में कोई त्ुसट नहीं है। अतः
अपील थी की अपील सनरस्त सकये ज ने योग्य है।"

11. In view of above, it is apparent
that the appeal was filed only on the ground
that the trial court has passed the judgment
and decree without considering pleadings,
evidence, material on record, commission
report and the facts and circumstances of
the case, therefore, admittedly all the
material for deciding the suit was before
the trial court and no evidence or material
was required to be placed on record for
passing the judgment and decree in the suit.

12. The provision of remand has
been made in Rule 23, 23A and 25 of Order
XLI C.P.C. Rule 24 of Order XLI C.P.C.
provides that where the evidence upon the
record is sufficient to enable the appellate
court to pronounce judgment, the appellate
court may, after resettling the issues, if
necessary, may determine the suit finally,
which is extracted herein-below"-

 "24. Where the evidence upon the
record is sufficient to enable the Appellate
Court
to
pronounce
judgment,
the
Appellate Court may, after resettling the
issues, if necessary, finally determine the
suit, notwithstanding that the judgment of
the Court from whose decree the appeal is
preferred has proceeded wholly upon some
ground other than that on which Appellate
Court proceeds."

13. In view of Rule 24, quoted
above, the appellate court is to pronounce
the judgment and determine the suit finally,
where the evidence upon the record is
sufficient to enable it to pronounce the
judgment, which may be pronounced after
resettling
the
issues,
if
necessary,
notwithstanding that the judgment of the
court from whose decree the appeal is
preferred has proceeded wholly upon some
ground other than that on which the
appellate court proceeds, therefore, even if
the appellate court is of the view that the
trial court has passed an erroneous and
illegal order taking a view, which is not
sustainable on the basis of material before
the trial court, it can pass order taking a
different
view
after
considering
the
pleadings, evidence and material on record.
Thus, if no issue arises, which is required
to be framed or which is required to be
considered on the basis of pleadings of the
parties and if required to be framed but no
additional evidence is required, the first
appellate court may decide the appeal as a
trial court after resettling issues and it
cannot invoke provisions of Rule 23, 23-A
or 25 of Order XLI C.P.C. for remanding
the matter. Consequence thereof is that the
first appellate court has to finally determine
the suit after considering the pleadings,
evidence and material on record as a trial
court considers the same.
9 All. Jamuna Prasad @ Yamuna Prasad Vs. Harilal
643
14. The aforesaid view taken by
this court is covered by the judgment of
Hon'ble Supreme Court, in the case of
Shivakumar and others vs. Sharanbasappa
and others (Supra). The Hon'ble Supreme
Court, in the said case, considered the
procedure relating to appeals from original
decrees provided under Order XLI C.P.C.
and noted in para 25 (25.1 to 25.6). The
Hon'ble Supreme Court held in para 25.3
and 25.4 that a comprehension of the
scheme of the provisions for remand as
contained in Rules 23 and 23A of Order
XLI is not complete without reference to
the provision contained in Rule 24 of Order
XLI . It has further held that a conjoint
reading of the Rule 23, 23A and 24 of
Order XLI brings forth the scope as also
contours of the powers of the remand that
when the available evidence is sufficient to
dispose of the matter, the proper course for
an appellate court is to follow the mandate
of Rule 24 of Order XLI C.P.C. and to
determine the suit finally and it is only in
such cases where the decree in challenge is
reversed in appeal and a re-trial is
considered necessary, the appellate court
shall adopt the course of remanding the
case. It remains trite that order of remand is
not to be passed in a routine manner
because an unwarranted order of remand
merely elongates the life of the litigation
without serving the cause of justice. The
para 25 (25.1 to 25.6) is extracted herein
below:-

 "[25] Taking up the other point
for determination the submission of learned
counsel for the appellants that the High
Court ought to have considered remanding
the case by taking recourse to the provision
contained in Order XLI Rule 23A CPC, in
our
view,
remains
totally
bereft
of
substance this submission has only been
noted
to
be
rejected.
25.1. The procedure relating to appeals
from original decrees (usually referred to
as 'regular first appeal') is provided in
Order XLI of the Code of Civil Procedure,
1908 and therein, various provisions
relating to hearing of an appeal, remand of
case,
remitting
of
issues
for
trial,
production of additional evidence in
Appellate Court etc. are contained in Rules
16 to 29 under the sub-heading Procedure
on hearing. For their relevance, we may
take note of the provisions contained in
Rules 23. 23A. 24 and 25 of Order XLI
CPC as follows:-

 "23. Remand of case by Appellate
Court.- Where the Court from whose
decree an appeal is preferred has disposed
of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate
Court may, if it thinks fit, by order remand
the case, and may further direct what issue
or issues shall be tried in the case so
remanded, and shall send a copy of its
judgment and order to the Court from
whose decree the appeal is preferred, with
directions to re-admit the suit under its
original number in the register of civil
suits, and proceed to determine the suit,
and the evidence (if any) recorded during
the original trial shall, subject to all just
exceptions, be evidence during the trial
after remand.

 23A. Remand in other cases.
Where the Court from whose decree an
appeal is preferred has disposed of the case
otherwise than on a preliminary point, and
the decree is reversed in appeal and a retrial is considered necessary, the Appellate
Court shall have the same powers as it has
under rule 23.

 24. Where evidence on record
sufficient. Appellate Court may determine
644 INDIAN LAW REPORTS ALLAHABAD SERIES
case finally.- Where the evidence upon the
record is sufficient to enable the Appellate
Court
to
pronounce
judgment,
the
Appellate Court may. after resettling the
issues, if necessary, finally determine the
suit notwithstanding that the judgment of
the Court from whose decree the appeal is
preferred has proceeded wholly upon some
ground other than that on which the
Appellate Court proceeds.

 25. Where Appellate Court may
frame issues and refer them for trial to
Court whose decree appealed from Where
the Court from whose decree the appeal is
preferred has omitted to frame or try any
issue, or to determine any question of fact,
which appears to the Appellate Court
essential to the right decision of the suit
upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same
for trial to the Court from whose decree the
appeal is preferred. and in such case shall
direct such Court to take the additional
evidence required:

 and such Court shall proceed to
try such issues, and shall return the
evidence to the Appellate Court together
with its findings thereon and the reasons
therefor within such time as may be fixed
by the Appellate Court or extended by it
from time to time."

 25.2. Rulę 23A came to be
inserted in Order XLI CPC by way of the
Code of Civil Procedure (Amendment) Act.
1976. Prior to this amendment, it was
generally accepted by the Courts that
although under Rule 23. an order of
remand could be made only on reversal of
a decree disposing of suit on a preliminary
point but the Appellate Court has the
inherent power of remanding a case where
it was considered necessary to do so in the
interest of justice. Some of the High Courts
had made similar provisions by way of
their respective amendments. Insertion of
Rule 23A in Order XLI by the Amending
Act of 1976 makes it explicit that even
when the suit has been disposed of
otherwise than on a preliminary point and
the decree is reversed in appeal, the
Appellate Court shall have the power of
remand,
if
a
re-trial
is
considered
necessary.

 25.3. A comprehension of the
scheme of the provisions for remand as
contained in Rules 23 and 23A of Order
XLI is not complete without reference to
the provision contained in Rule 24 of
Order XLI that enables the Appellate
Court to dispose of a case finally without a
remand if the evidence on record is
sufficient;
notwithstanding
that
the
Appellate Court proceeds on a ground
entirely different from that on which the
Trial Court had proceeded.

 25.4. A conjoint reading of Rules
23. 23A and 24 of Order XLI brings forth
the scope as also contours of the powers of
remand that when the available evidence
is sufficient to dispose of the matter, the
proper course for an Appellate Court is to
follow the mandate of Rule 24 of Order
XLI CPC and to determine the suit finally.
It is only in such cases where the decree in
challenge is reversed in appeal and a retrial is considered necessary that the
Appellate Court shall adopt the course of
remanding the case. It remains trite that
order of remand is not to be passed in a
routine
mannefe
be
the
litigatiounwarranted order of remand
merely elongates the life of the litigation
without serving the cause of Justicerely
order of remand only on the ground that
the points touching An appreciation of
9 All. Jamuna Prasad @ Yamuna Prasad Vs. Harilal
645
evidence were not dealt with by the Trial
Court may not be considered proper in a
given case because the First Appellate
Court itself is possessed of jurisdiction to
enter into facts and appreciate the
evidence. There could, of course, be
several eventualities which may justify an
order of remand or where remand would
be rather necessary depending on the facts
and the given set of circumstances of a
case.

 25.4.1. The decision cited by the
learned Counsel for the appellants in the
case of Mohan Kumar (supra) is an apt
illustration as to when the Appellate Court
ought to exercise the power of remand. In
the said case. the appellant and his mother
had filed the civil suit against the
Government
and
local
body
seeking
declaration of title, perpetual injunction
and for recovery of possession in respect of
the land in question. The Trial Court partly
decreed the suit while holding that the
plaintiffs were the owners of the land in
dispute on which trespass was committed
by the respondents and they were entitled
to get the encroachment removed: and it
was also held that the Government should
acquire the land and pay the market value
of the land to the appellant. Such part of
the decree of the Trial Court was not
challenged by the defendants but as against
the part of the decision of the Trial Court
which resulted in rejection of the claim of
the appellant for allotment of an alternative
land, the appellant preferred an appeal
before the High Court. The High Court not
only dismissed the appeal so filed by the
appellant but proceeded to dismiss the
entire suit with the finding that the plaintiffappellant had failed to prove his ownership
over the suit land inasmuch as he did not
examine the vendor of his sale deed. In the
given circumstances, this Court observed
that when the High Court held that the
appellant was not able to prove his title to
the suit land due to non-examination of his
vendor, the proper course for the High
Court was to remand the case to the Trial
Court by affording an opportunity to the
appellant to prove his title by adducing
proper evidence in addition to what had
already been adduced. Obviously, this
Court found that for the conclusion
reached by the High Court, a case for retrial was made out particularly when the
Trial Court had otherwise held that the
appellant was owner of the land in dispute
and was entitled to get the encroachment
removed as also to get the market value of
the land. Such cases where re-trial is
considered necessary because of any
particular reason and more particularly for
the reason that adequate opportunity of
leading sufficient evidence to a party is
requisite,
stand
at
entirely
different
footings than the cases where evidence has
already been adduced and decision is to be
rendered on appreciation of evidence. It
also remains trite that an order of remand
is not to be passed merely for the purpose
of allowing a party to fillup the lacuna in
its case.

 25.5. It gets perforce reiterated
that the occasion for remand would arise
only when the factual findings of Trial
Court are reversed and a re-trial is
considered necessary by the Appellate
Court.

 25.6. The present case had
clearly been the one where the parties had
adduced all their evidence, whatever they
wished to; and it had not been the case of
the plaintiff-appellants that they were
denied any opportunity to produce any
particular evidence or if the trial was
vitiated because of any alike reason. As
646 INDIAN LAW REPORTS ALLAHABAD SERIES
noticed, there had been several suspicious
circumstances surrounding the Will in
question, some of which were noticed by
the Trial Court but were brushed aside by
it on untenable reasons. The High Court
has meticulously examined the same
evidence and the same circumstances and
has come to a different conclusion that
appears to be sound and plausible, and
does not appear suffering from any
infirmity. There was no reason or occasion
for the High Court to consider remanding
the case to the Trial Court. The contention
in this regard is required to be, and is,
rejected.

15. The Hon'ble Supreme Court
had also considered the aforesaid issue in
the case of J. Balaji Singh vs. Diwakar
Cole and others; (2017) 14 SCC 207 and
under what circumstances, remand could
have been made and the power of this
Court under Order 43 Rule 1(u) C.P.C on
being challenged in an order of remand.
The relevant paragraphs 13, 14, 18 and 19
are extracted hereinbelow:-

 "13) The main question, which
fell for consideration before the High
Court, was whether the first Appellate
Court was right in remanding the case to
the Trial Court for fresh trial on merits?

 14) There are three provisions in
the Code which deal with the power of the
Appellate Court to remand the case to the
Trial Court. These provisions are Order 41
Rules 23, 23-A, and 25.

 14.1) So far as Order 41 Rule 23 is
concerned, it enables the Appellate Court to
remand the case to the Trial Court when it
finds that the Trial Court has disposed of the
suit upon a preliminary point. The Appellate
Court in such cases is empowered to direct
the Trial Court to decide all the issues on
evidence on record.

 14.2) So far as Rule 23-A is
concerned, it enables the Appellate Court to
remand the case to the Trial Court when it
finds that though the Trial Court has
disposed of the suit on all the issues but on
reversal of the decree in appeal, a re-trial is
considered necessary by the Appellate Court.

 14.3) So far as Rule 25 is
concerned, it enables the Appellate Court to
frame or try the issue if it finds that it is
essential to the right decision of the suit and
was not framed by the Trial Court. The
Appellate
Court
in
such
case
may,
accordingly, frame the issues and refer the
same to the Trial Court to take the evidence
and record the findings on such issues and
return to the Appellate Court for deciding the
appeal. In such cases, the Appellate Court
retains the appeal to itself.

 18) The High Court failed to see
that when the first Appellate Court itself did
not decide the appeal on merits and
considered it proper to remand the case to
the Trial Court, a fortiori, the High Court
had no jurisdiction to decide the appeal on
merits. Moreover, Order 43 Rule 1(u) confers
limited power on the High Court to examine
only the legality and correctness of the
remand order of the first Appellate Court but
not beyond that. In other words, the High
Court should have seen that Order 43 Rule
1(u) gives a limited power to examine the
issue relating to legality of remand order, as
is clear from Order 43 Rule 1(u) which reads
thus:-

 "1(u) an order under rule 23 or
rule 23A of Order XLI remanding a case,
where an appeal would lie from the decree
of the Appellate Court"
9 All. Jamuna Prasad @ Yamuna Prasad Vs. Harilal
647
 19) It is well settled law that the
jurisdiction to decide the appeal on merits
can be exercised by the Appellate Court
only when the appeal is filed under Section
96 or 100 of the Code against the decree.
Such was not the case here."

16. In view of above, this Court in
an appeal under Order 43 Rule 1(u) has to
confine itself on such facts, conclusions
and decisions, which have a bearing on the
order of remand and the aforesaid rule
confers limited power on the High Court to
examine only the legality and correctness
of the remand order of the first appellate
court and not beyond that.

17. Adverting to the facts of the
present case, the first appellate court
framed three points for determination on
the basis of pleadings of the parties and the
grounds of challenge, which are extracted
hereinbelow:

 "1. क्या अपीलार्थी/वादी प्रश्नगत िूभम का स्वामी है
औि स्वामी स्वरूप उस पि अध्याभसत है?

 2. क्या प्रभतवादी द्वािा दौिान वाद भववाभदत स्र्थल पि
भनमाटण भकया गया है, यभद हााँ तो प्रिाव?

 3. क्या अपीलार्थी/वादी याभचत अनुतोष को प्राप्त
किने का हकदाि है?"

18. The first and second point of
determination have been considered and
decided together. After considering the
pleadings of the parties, evidence and
material on record, the first appellate court
came to the conclusion that the learned trial
court should have passed the required order
after
considering
deeply
the
points
discussed by the first appellate court but the
learned trial court has not done so and
passed impugned order in a cursory
manner. Thus, the view expressed by the
learned trial court on the said points does
not seem, prima facie, in accordance with
law. In such situation, the first appellate
court came to the conclusion that the case
is liable to be remanded to the learned trial
court for passing fresh legal order in view
of observations made by the first appellate
court after hearing.

19. While considering the third
point of determination, the first appellate
court came to the conclusion that the
appellant/plaintiff has succeeded in proving
from his all facts and evidence that the land
in dispute is his sehan land of which he is
the owner and in possession since the time
of his ancestors and since prior to the
abolition of zamindari. His trees and tap are
situated on the said land. In such situation,
the appellant/plaintiff is entitled for the
relief of permanent injunction.

20. In view of above, the first
appellate court on the basis of pleadings,
evidence and material on record has
recorded findings in regard to the first,
second and third point of determination.
The first appellate court has not found that
evidence on record is not sufficient to
dispose of the case finally. The first
appellate court has also not recorded any
finding that any issue has not been framed,
which is required to be framed and
evidence on the same is required to be
adduced
by
the
parties.
In
such
circumstances, the appellate court itself
should have determined the suit finally
instead of remanding the matter as it could
have been done in such circumstances.

21. In view of above and
considering
the
overall
facts
and
circumstances of the case, this Court is of
the view that the first appellate court has
648 INDIAN LAW REPORTS ALLAHABAD SERIES
passed the impugned judgment and order
and remanded the case to the learned trial
court for deciding afresh in violation of law
as discussed above because the appeal
could have been decided finally by the
appellate
court,
therefore,
it
is
not
sustainable in the eyes of law and liable to
be set aside by this Court with a direction
to the first appellate court to decide the
appeal in accordance with law.

22. The appeal is, accordingly,
allowed. The judgment and order dated
10.02.2022 passed in Civil Appeal No. 11 of
2021; Harilal vs. Jamuna Prasad by District
Judge, Ambedkar Nagar is hereby set aside.
The matter is remitted back to the first
appellate court with a direction to the first
appellate court to reconsider and pass a fresh
order, after affording opportunity of hearing
to the parties, in accordance with law and
observations made hereinabove in this order
expeditiously and preferably within a period
of three months, from the date of production
of certified copy of this order, without
granting unnecessary adjournment to either of
the parties as the proceedings are pending
since filing of the regular suit in the year
1997. No order as to costs.
----------
(2024) 9 ILRA 648
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 3089 of 2024

Arun Prakash Gupta ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Utsav Mishra, Gaurav Mehrotra

Counsel for the Respondents:
A.S.G.I., Anurag Srivastava, Raj Kumar
Singh

A. Administrative Law - Judicial review -
Scope of the proceedings before the
Tribunal - Administrative Tribunals Act,
1985: Section 22 - The Tribunal while
adjudicating
a
service
dispute
is
empowered to enter into questions of fact,
and
decide
factual
issues
based
on
evidence, as is done by the Civil Court,
even though not bound by the provisions
of Code of Civil Procedure, 1908. In fact,
the Tribunal is a substitute for the Civil Court.
Prior
to
constitution
of
the
Central
Administrative Tribunal (CAT) under the Act,
1985, the remedy was before the Civil Court,
and therefore, an alternative forum has been
provided u/Article 323-A of the Constitution of
India. It can take evidence, evaluate it and
record findings of fact.

B. The proceedings of the High Court
u/Article 226 are summary proceedings,
whereas the proceedings of the Tribunal,
even though they are required to be
completed expeditiously, are not the same
as the High Court in this sense. The Tribunal
has been vested with powers to examine
questions of fact, to take evidence and decide
factual issues based thereon, whereas, the
powers of the High Court u/Article 226 of the
Constitution, do not permit such an exercise.
The Tribunal acts as the only courts of first
instance in respect of the areas of law for
which they have been constituted. It will
not be open for litigants to directly
approach the High Courts even in cases
where they question the vires of statutory
legislations (except, where the legislation
which creates the particular Tribunal is
challenged)
by
overlooking
the
jurisdiction of the Tribunal concerned.
(Para 7)

In the present case, the Tribunal has declined to
enter into the factual issues on a misconception,
as if it was exercising powers of judicial review
as are exercised by the High Courts u/Article