# Mohd. Raseed Khan v. Nagar Palika Parishad, Jhansi & Anr

- **Citation:** (2024) 1 ILRA 1126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-28
- **Case number:** First Appeal From Order No. 1455 of 2008
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-raseed-khan-v-nagar-palika-parishad-jhansi-anr-50839
- **Pages:** 12

## Headnote

First Appeal From Order - Remand Order
Set Aside - The plaintiff challenged the Lower
Appellate Court's order dated 19.02.2008, which
set aside the Trial Court's decree and remanded
the suit for fresh trial on Issue No. 1 - Held, the
remand was unwarranted as both parties had
adduced all evidence consciously, and the Lower
Appellate Court was directed to decide the appeal
on merits within three months. (Paras 13, 30)

B. Incorrect Framing of Issue - No
Prejudice to Parties - The Trial Court framed
Issue No. 1 incorrectly as "Whether the
constructions are an encroachment on Nagar
Palika land?" placing the burden on the
defendants - Held, despite the misframing, both
parties led evidence fully aware of each other's
case, and the error did not prejudice the
defendants, rendering remand unnecessary.
(Paras 16, 17, 21)

C. Burden of Proof - Academic in Presence
of Full Evidence - The Lower Appellate Court
held that the burden to prove title and possession
should have been on the plaintiff - Held, as per
Bhairab Chandra Nandan Vs Ranadhir Chandra
Dutta and P. Purushottam Reddy Vs Pratap Steels
Ltd., incorrect burden placement does not vitiate
findings when parties consciously adduce all
evidence. (Paras 18, 19, 20)

D. Scope of Remand - Limited Under
Order XLI CPC - The Lower Appellate Court
remanded the suit under Order XLI Rule 23-A
CPC
-
Held,
as
per
Shivakumar
Vs
Sharanabasappa and Nadakerappa Vs Pillamma,
remand
is
inappropriate
when
sufficient
evidence exists to decide the case on merits,
and courts must avoid prolonging litigation.
(Paras 24, 26, 27)

E. Direction for Expeditious Disposal - The
Court set aside the remand order and restored
the appeal (Civil Appeal No. 67 of 2006) to the
Lower Appellate Court - Held, the appellate
court was directed to decide the appeal on a
day-to-day basis within three months to ensure
speedy justice. (Paras 30, 31)

Appeal Allowed.
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1127
List of Cases cited:

## Text

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1126 INDIAN LAW REPORTS ALLAHABAD SERIES
Tripathi (supra) and thus, it is not a
binding precedent on this Court.

28. It is also urged by the learned
counsel for the appellant that appellant has
proved that owner deliberately committed
breach of policy, this Court may note that
though, insurance company in paragraph 14
of the written statement has stated that
owner
deliberately
handed
over
the
offending vehicle to a driver who did not
have a valid driving licence, but the
insurance company did not get any issue
framed on the said point nor led any
evidence on record to prove the averments
made in paragraph 14 of the written
statement. Mere assertion is not sufficient
unless the assertions made in the written
statement are proved by leading cogent
evidence. In such view of the fact, the
aforesaid submission of learned counsel for
the appellant is also misconceived and is
hereby rejected.

29. Thus, for the reasons given above,
the appeal lacks merit and is hereby
dismissed with no order as to costs.
----------
(2024) 1 ILRA 1126
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 1455 of 2008

Mohd. Raseed Khan ...Appellant
Versus
Nagar Palika Parishad, Jhansi & Anr.
 ...Respondents

Counsel for the Appellant:
Sri B.N. Agarwal, Sri Sanjay Agrawal
Counsel for the Respondents:
Sri Pankaj Srivastava

First Appeal From Order - Remand Order
Set Aside - The plaintiff challenged the Lower
Appellate Court's order dated 19.02.2008, which
set aside the Trial Court's decree and remanded
the suit for fresh trial on Issue No. 1 - Held, the
remand was unwarranted as both parties had
adduced all evidence consciously, and the Lower
Appellate Court was directed to decide the appeal
on merits within three months. (Paras 13, 30)

B. Incorrect Framing of Issue - No
Prejudice to Parties - The Trial Court framed
Issue No. 1 incorrectly as "Whether the
constructions are an encroachment on Nagar
Palika land?" placing the burden on the
defendants - Held, despite the misframing, both
parties led evidence fully aware of each other's
case, and the error did not prejudice the
defendants, rendering remand unnecessary.
(Paras 16, 17, 21)

C. Burden of Proof - Academic in Presence
of Full Evidence - The Lower Appellate Court
held that the burden to prove title and possession
should have been on the plaintiff - Held, as per
Bhairab Chandra Nandan Vs Ranadhir Chandra
Dutta and P. Purushottam Reddy Vs Pratap Steels
Ltd., incorrect burden placement does not vitiate
findings when parties consciously adduce all
evidence. (Paras 18, 19, 20)

D. Scope of Remand - Limited Under
Order XLI CPC - The Lower Appellate Court
remanded the suit under Order XLI Rule 23-A
CPC
-
Held,
as
per
Shivakumar
Vs
Sharanabasappa and Nadakerappa Vs Pillamma,
remand
is
inappropriate
when
sufficient
evidence exists to decide the case on merits,
and courts must avoid prolonging litigation.
(Paras 24, 26, 27)

E. Direction for Expeditious Disposal - The
Court set aside the remand order and restored
the appeal (Civil Appeal No. 67 of 2006) to the
Lower Appellate Court - Held, the appellate
court was directed to decide the appeal on a
day-to-day basis within three months to ensure
speedy justice. (Paras 30, 31)

Appeal Allowed.
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1127
List of Cases cited:

1. Bhairab Chandra Nandan Vs Ranadhir
Chandra Dutta, (1988) 1 SCC 383

2. P. Purushottam Reddy Vs Pratap Steels Ltd.,
(2002) 2 SCC 686

3. Nagubai Ammal Vs R. Shama Rao, AIR 1956
SC 593

4. Shivakumar Vs Sharanabasappa, (2021) 11
SCC 277

5. Nadakerappa Vs Pillamma, 2022 SCC OnLine
SC 387

6. Arvind Kumar Jaiswal Vs Devendra Prasad
Jaiswal Varun, 2023 SCC OnLine SC 146

7. Mohan Kumar Vs St. of M.P., (2017) 4 SCC 92

(Delivered by Hon'ble J.J. Munir, J.)

1. This is a plaintiff's appeal arising
out of an order of remand passed by the
Lower Appellate Court setting aside the
decree made in the suit and ordering a fresh
trial, upon Issue No.1.

2. Original Suit No.194 of 2001 was
instituted by Mohd. Raseed Khan against
the
Nagar
Palika
Parishad
and
the
Executive Engineer of the said Nagar
Palika, arrayed as the two defendants,
claiming
a
permanent
prohibitory
injunction to the effect that the defendants
be restrained from taking possession of and
demolishing the existing constructions or
otherwise interfering in the plaintiff's
peaceful possession of Plot No.1897
(minjumla), the boundaries whereof are set
out at the foot of the plaint and situate in
Mauza Dadiapura, Andar Sagar Khidki,
Jhansi.

3. The facts in brief leading to the
action are:

The
plaintiff
claims
to
be
the
zamindar-owner in possession of Arazi
No.187,
admeasuring
0.202
hectares,
boundaries whereof are set forth at the foot
of the plaint and bearing Khata Khewat
No.1/2,
Mohal
Shamlaat,
Mauza
Dadiapura, Andar Sagar Khidki, Jhansi,
which is popularly known as 'Jogiana'. The
said property shall hereinafter be referred
to as 'the suit property'. According to the
plaintiff, the suit property houses a shop
vending grit, stones etc., described as
Patthar Ki Taal Dukaan, a thatched roofed
structure described as a 'tapra' and a house
etc. The suit property is located in the midst
of a populated area. A part of the suit
property was encroached upon by one
Ghanshyam unlawfully, who raised some
construction
thereon.
The
plaintiff
instituted O.S. No.572 of 1995 against
Ghanshyam for the relief of mandatory
injunction, ordering the encroacher to
remove
his
wall
and
tin-shed/
encroachments, and upon failure to do so,
cause its removal through the process of
Court. The suit aforesaid came to be
decreed vide judgment and decree dated
06.03.1999 passed by the Civil Judge (Jr.
Div.), Jhansi. Some local mafiosi then
attempted to grab the suit property that led
the plaintiff to institute O.S. No.59 of 2001
in the Court of the Civil Judge (Sr. Div.),
Jhansi against Vishnu Garg, seeking a
permanent
injunction
restraining
the
defendant of that suit and his associates
from forcibly occupying the suit property,
carving plots out of it, raising constructions
thereon or selling it out to third parties. The
learned Civil Judge vide his order dated
22.01.2001 passed an order of ad interim
injunction directing parties to maintain
status quo. This led persons, whose designs
had been thwarted to forcibly occupy the
suit property, to cause the employees of the
Nagar Palika mala fide and the elected
1128 INDIAN LAW REPORTS ALLAHABAD SERIES
representatives there, by offering them the
allurement of political support, to join them
in the enterprise of dispossessing the
plaintiff from the suit property and
demolishing his construction.

4. It is the plaintiff's case that the
defendants, that is to say, the Nagar Palika
Parishad are neither the owner nor in
possession of the suit property. However,
defendant No.2, acting in concert with the
private encroachers, caused a notice to be
issued
under
the
Uttar
Pradesh
Municipalities Act, 1916 (for short, 'the Act
of 1916') requiring the plaintiff to remove
his constructions within three days and
further saying that in the event of default, it
would be demolished by force. It is pleaded
by the plaintiff that the notice is absolutely
bad, illegal and without jurisdiction, which
does not oblige the plaintiff. But, if acting
on the notice, the constructions standing on
the suit property were demolished and
construction of a park etc. done, the
plaintiff would suffer irreparable loss and
injury. Accordingly, the plaintiff instituted
the present suit claiming exemption from
the requirement of serving a notice under
Section 326 of the Act of 1916.

5. A written statement was filed on
behalf of the defendants on 02.04.2002,
where Paragraph No.1 of the plaint was not
denied. In the additional pleas, it is averred
that in the survey plan of the Nagar Palika
Parishad, the suit property appears as Nagar
Palika property and no one has a right to be
in its possession or exercise any right in
relation to it. The plaintiff's so called
possession and constructions are absolutely
illegal, which the Nagar Palika have every
right to remove. It is also averred that the
demolition notice has been lawfully served,
which the Nagar Palika have a right under
the law to do. It is also pleaded that before
action to remove encroachment is taken,
the Nagar Palika always issue notice to the
encroacher. The next plea that is urged is
that against the notice an appeal lies under
Section 318 of the Act of 1916. The present
suit is not maintainable.

6. On the pleadings of parties, the
Trial Court framed the followings issues
(translated into English from Hindi):

"1. Whether the constructions are
an encroachment on the Nagar Palika land?

2.
Whether
the
Court
has
jurisdiction to try the suit?

3. To what relief is the plaintiff
entitled?"

7. The plaintiff in support of his case
examined three witnesses, to wit, PW-1
Mohd. Raseed Khan, Ram Swaroop Gupta,
PW-2 and Khaliluddin, PW-3. In his
documentary
evidence,
the
plaintiff
produced Paper No.10-Ga, copy of the
Khewat Chausala relating to Mohala
Shamlaat for the Fasli Year 1405-1408.
There is further on record an extract of the
non-Z.A. Khatauni for the Fasli Year 1408,
paper No.12-Ga, copy of a registration
certificate for the plaintiff's shop dated
05.03.1994 issued by the Chief Inspector,
Shops and Commercial Establishment,
paper No.13-Ga, a copy of the judgment
passed in O.S. No.572 of 1999, Paper
No.14-Ga, a copy of the order passed in
O.S. No.59 of 2001, paper No.15-Ga being
copy of a notice sent to the defendants
under Section 326 of the Act of 1916, Paper
No.16-Ga, copy of the registered postal
receipt relative to the dispatch of the said
notice, Paper No.17-Ga, copy of the
demolition notice served by the defendant
Nagar Palika under Section 211 of the Act
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1129
of 1916. Through another list Paper No.33Ga, four documents were filed, to wit, a
map bearing Paper No.34-Ga, Khasra
Bandobast for the year 1346F bearing
Paper No.36-Ga, and a copy of the
judgment and order dated 20.07.1993
passed by the Ex-Court of Munsif, Jhansi
in O.S. No.43 of 1989.

8. The defendants produced a solitary
witness in support their case, Dharamjeet
Singh, former Draftsman in the employ of
the Nagar Palika Parishad, Jhansi. No
documentary evidence was produced on
behalf of the defendants.

9. The Trial Court while deciding
Issue No.1 did say in the opening remark
that the burden to prove it lay upon the
defendants, but as the findings proceed, it is
apparent that both parties went to trial on
the issue conscious of each other's case
where the plaintiff's evidence comprising
the Khewat and the non-Z.A. Khatauni, the
other documentary evidence and the oral
testimony, was considered to return a
finding that the plaintiff is the owner in
possession of the suit property. The
testimony of DW-1 was considered by the
Trial Court to note that the witness has
acknowledeged the fact that the plaintiff
was in possession of the suit property and
has his constructions there, including his
shop. The Trial Court has remarked that the
witness has never said that the Nagar Palika
has not given permission to raise the
constructions.

10. In his cross-examination, DW-1,
the witness has admitted the fact that the
plaintiff has not constructed any projection
etc. on the suit property. It has, particularly,
been recorded by the learned Trial Judge
that the witnesses has admitted that the plot
housing the suit property is not entered in
the Nagar Pakika Property Register. The
Trial Judge has also noted that DW-1 has
said that he has not brought the survey plan
to Court. Considering that the entire case of
the defendant is based on the fact that the
property is their's, because it is included in
the survey plan, the survey plan, which
ought to have been, has not been produced
or proved in Court. DW-1 has also been
noticed to have said that he did not have
with him the Register to show that the plot
comprising the suit property is public
property. All that he could rely upon was
the survey plan. The Court has remarked
that the defendants witness is considering
the property to be the public property on
the basis of the survey plan. A finding has
been returned by the Trial Judge that from
the aforesaid testimony of defendant's
witness, it appears that the suit property is
entered in the defendant's survey plan, but
not in their property register, and the survey
plan has not been proved in Court. It has
been observed that while the plaintiff has
produced documentary evidence supported
by oral testimony to show that he is in
possession of the suit property, the
defendants have not produced any evidence
about their ownership or possession. The
plaintiff has been held by his evidence to
have proved both his title and possession to
the
suit
property,
whereas
by
acknowledging the fact that the suit
property is not entered in their property
register, the defendants have failed to
establish that the plaintiff has encroached
upon Nagar Palika Property, to wit, the suit
property. The issue was, accordingly,
decided in terms that the plaintiff is the
owner in possession of the suit property,
not the defendants, and further that the
plaintiff has not encroached upon th

11. Issue No.2 has been decided
against the defendants and in favour of the
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff
holding
that
the
notice
of
demolition issued under Section 211 of the
Act of 1916 is without jurisdiction,
because it is a notice issued completely
beyond the provisions of Section 211,
which envisage the Municipality's power
by notice to require the owner or occupier
of a building to remove or alter a
projection or structure overhanging or
projecting into or encroaching a street,
drain, sewer or aqueduct. The Nagar
Palika have no power to direct demolition
of construction, claiming it to be the
Nagar Palika land under Section 211. It is
for the said reason that the remedy of
appeal under Section 318 of the Act of
1916 would not at all be available to the
plaintiff.

12. The third issue has also been
answered in favour of the plaintiff and
the suit decreed in terms that the
defendants have been restrained from
interfering in the plaintiff's peaceful
possession over the suit property or his
constructions perpetually.

13. Aggrieved by the judgment and
decree dated 22.08.2003 passed by the
Trial Judge, an appeal was carried by the
defendants to the District Judge of Jhansi,
that was numbered on the file of the
learned Judge as Civil Appeal No.67 of
2006. The appeal upon assignment, came
up
for
determination
before
the
Additional District Judge, Court No.3,
Jhansi
on
19.02.2008.
The
Lower
Appellate Court has allowed the appeal
holding the finding of the Trial Court to
be vitiated on Issue No.1 on ground that
burden has wrongly been placed upon the
defendant for reason that the issue has
been wrongly framed. The suit has been
remanded to the Trial Court for trial afresh
on Issue No.1 in accordance with law.

14. Aggrieved by the order of remand
passed by the Lower Appellate Court, the
plaintiff has preferred this appeal under
Order XLIII Rule 1(u) of the Code of
Civil Procedure, 1908 (for short, 'the
Code').

15. Heard Mr. Sanjay Agrawal,
learned Counsel for the plaintiff and Mr.
Pankaj
Srivastava,
learned
Counsel
appearing on behalf of the respondents.

16. The Lower Appellate Court has
opined that the plaintiff has brought this
action on the basis of title and possession,
and the cause of action shown is the
statutory notice issued by the defendants
calling
upon
him
to
remove
the
encroachment made on the Nagar Palika
property, to wit, the suit property. In the
written statement, the defendants have
claimed the suit property to be in the
Nagar Palika's ownership and said that
the plaintiff's possession, as well as the
standing constructions, are illegal. In the
opinion of the Lower Appellate Court, the
plaintiff, therefore, had the burden of
proving both title and possession. The
Lower Appellate Court says that on the
case of parties, the issue that ought to have
been framed should be: Whether the
plaintiff is the owner in possession of the
suit property? It is then remarked by the
Lower Appellate Court that the learned
Trial Judge has committed an error in
framing the relevant issue in the terms:
Whether the plaintiff's construction is an
encroachment on Nagar Palika land? In the
opinion of the Lower Appellate Court, this
wrong framing of the issue has thrown
burden upon the defendants to prove that
the plaintiff has not encroached upon their
land. This is not in accordance with the
parties' case, as held by the Judge in the
Lower Appellate Court.
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1131

17. Upon a close scrutiny of the
records, the judgment impugned, including
that passed by the Trial Court and hearing
learned Counsel for the parties, what we
find is that the Lower Appellate Court
may be right in saying that the issue
ought to have been framed in terms
suggested by the Judge in appeal, and if it
were done, certainly the burden and onus
both would be differently placed. Both
would fall upon the plaintiff in case this
issue were framed, as it ought to have
been. But, this error in framing the issue
and casting the onus and burden upon the
defendants, does not make any material
difference. This is so for that reason that
where parties go to trial conscious of the
real issue that arises between them and
lead all evidence that they can, it matters
little that the issue has been incorrectly
framed or the onus and burden placed on
the wrong shoulders.

18. It may, in certain cases, make a
difference of some consequence to the
outcome, if the finding rendered is
founded entirely on who had the burden,
but could not discharge it. This could be
more true of cases that are disposed of
conducting a proper trial, where the
relevant issues are decided on the point of
onus under Section 102 of the Evidence
rather than burden of proof under Section
101. Where, however, all evidence has
been led by parties, with no case that one
party or the other could not produce
evidence that he wished to do, a mere illframing of issue and the consequent
incorrect placing of burden, would not
vitiate the result. It would all the more not
vitiate the result where both parties have
led all evidence that they desired, and, the
Court has rendered a wholesome judgment,
considering the entire evidence; not merely
disposing of issues in the suit, in the rather
out of vogue manner on the point of
evidential burden alone, and passing
judgment on that basis.

19. What we have said above
endorses the principle that once both
parties have led evidence, fully conscious
of the other's case, the mere non-framing of
the relevant issue or a wrong framing of it,
would not affect the validity of the finding
returned. In this connection, reference may
be made to the decision of the Supreme
Court in Bhairab Chandra Nandan v.
Ranadhir Chandra Dutta, (1988) 1 SCC
383, where it was held:

"6. Learned Counsel for the
respondent submitted that the appellant has
another house situate in Ismail Madan Lane
and, therefore, the appellant was not left
without alternate accommodation and, as
such, the appellant has not satisfied the
requirements of Section 13(ff) for seeking
possession of the leased portion for his own
occupation. The house situate in Ismail
Madan Lane is said to be more than three
miles away from the suit house as per
statement of counsel made at the bar.
Moreover, the house is not lying vacant.
The appellant's witness Mukhtar Ahmed
examined as PW 2 has deposed that he is a
tenant in the house in Ismail Madan Lane
and that the entire house is in the
occupation of tenants and no portion is
lying vacant. Apart from this, it has also to
be pointed out that this is a case where the
appellant's (sic family) is occupying a
portion of the house and wants possession
of the leased portion only by way of
additional accommodation. To such a case
the condition imposed by Section 13 that "a
landlord should not be in possession of any
reasonably suitable accommodation" may
not be strictly attracted. Otherwise, it
would lead to a landlord being asked to
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
disrupt
the
family
and
providing
accommodation for the members of his
family at different places. The respondent's
counsel submitted that since no issue has
been raised on the question of alternative
accommodation being available, the appeal
may be remanded to the appellate court for
evidence being taken and a finding
rendered on the question whether the house
in Ismail Madan Lane would meet the
requirement of the appellant. We do not
find any merit in this submission. Though
formally no issue was framed, the parties
went to trial and adduced evidence with
this issue in mind and have drawn the
attention of the court to the existence of
another house belonging to the appellant in
Ismail Madan Lane and the said house
being not vacant. There is, therefore no
need for the appeal being remanded for a
finding on the question whether alternate
suitable accommodation is available for the
appellant."

(emphasis by Court)

20. To the same effect is the holding
of the Supreme Court in P. Purushottam
Reddy and another v. Pratap Steels Ltd.,
(2002) 2 SCC 686, where it was observed:

"12. Assuming that there was any
deficiency in the pleadings and also an
omission on the part of the trial court to
frame a specific issue, the present one is a
case where the applicability of the law laid
down by this Court in Nagubai Ammal v.
R. Shama Rao [AIR 1956 SC 593] was
squarely attracted. In Nagubai case [AIR
1956 SC 593] this Court was called upon to
examine if the plea of lis pendens was not
open to the plaintiff on the ground that it
had not been raised in the pleadings.
Neither the plaint nor the reply statement of
the plaintiff contained any averment that
the sale was affected by the rule of lis
pendens. There was no specific issue
directed
to
that
question.
However,
evidence was adduced by the plaintiff on
the plea of lis pendens and not objected to
by the defendants. The question was argued
and tested by taking into consideration the
evidence
that
the
proceedings
were
collusive in character with a view to avoid
operation of Section 52 of the TP Act. This
Court felt satisfied that the defendants went
to trial with full knowledge that the
question of lis pendens was in issue, had
ample opportunity to adduce their evidence
thereon and fully availed themselves of the
opportunity. This Court formed the opinion
that in the circumstances of the case,
absence of a specific pleading on the
question was a mere irregularity which
resulted in no prejudice to the defendants.
After having noticed the rule of pleadings
as applicable to civil law that "no amount
of evidence can be looked into upon a plea
which was never put forward", this Court
held: (AIR p. 598, para 12)

"The true scope of this rule is that
evidence let in on issues on which the
parties actually went to trial should not be
made the foundation for decision of another
and different issue, which was not present
in the minds of the parties and on which
they had no opportunity of adducing
evidence. But that rule has no application
to a case where parties go to trial with
knowledge that a particular question is in
issue, though no specific issue has been
framed thereon, and adduce evidence
relating thereto.""

21. In this case what is noteworthy is
that there is no grievance made or one that
can possibly be made that because of the
incorrect framing of the issue, the parties
were not conscious of the case, on which
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1133
they went to trial. Also, there is no
grievance that because of the manner in
which Issue No.1 was framed by the Trial
Court,
the
parties
did
not
have
opportunity to lead evidence. If one were
to look at Issue No.1, bearing in mind the
fact that this issue by its phrasing had
incorrectly thrown burden upon the
defendants, the logical consequence is
that much more evidence on behalf of the
defendants would be led than if the issue
had been framed the way the Lower
Appellate Court has suggested, and
which, we do not find to be faulty. The
mistake that the Trial Court committed in
framing
the
issue
and
a
fortiori
misorienting the burden ought to have led
the defendants to produce the maximum
of evidence that they could, to prove their
case
of
title
and
possession.
Unfortunately, that has not been done.

22. No evidence has been produced
by the defendants on the issue, except for
a solitary witness, DW-1. Therefore, this
is not remotely a case where the
defendants can be said to have been
prejudiced in the matter of producing
their evidence on the issue about title and
possession to the suit property, on
account of the way it was phrased. In the
opinion of this Court, therefore, the
Lower Appellate Court was wrong to
think about a remand after appropriately
framing Issue No.1 for the trial of that
issue afresh. This brings the Court to the
other question, which the learned Counsel
Counsel for parties have mooted at great
length. This relates to the matter of remand.

23. It is urged on behalf of the
plaintiff that given the fact that the parties
had adduced all evidence that they could on
the first issue, the Lower Appellate Court
ought not have remanded. Instead, on the
available evidence, the Lower Appellate
Court should have rendered judgment in
the appeal on merits.

24. It is true that with the introduction
of Rule 23-A in Order XLI of the Code, the
scope of remand has been enlarged to cover
even those cases where the Trial Court has
rendered judgment on merits; not merely
those covered by Rule 23, where the suit
has been disposed of by the Trial Court
on a preliminary issue. However, the way
the exercise of power to remand has been
guided
by
high
authority,
the
unmistakable principle is that if there is
sufficient evidence on record to dispose
of the suit finally, there ought not to be a
remand. This is in keeping with the
salutary principle that the policy of the
law is to avoid protraction of litigation
and uncertainties that come with it. The
principle is a facet of speedy justice,
where all courses that foment delays are
to be eschewed.

25. Here, it must be remarked that
what would be meant by evidence
sufficient to dispose of the suit, or for
that matter, a particular issue arising in
the suit, means all evidence that has been
led by parties conscious of each other's
case, which they wish to do. It does not
mean that if one party, despite being
conscious of the other's case, has chosen
to produce no evidence, or scanty,
insufficient, unreliable and undependable
evidence, a remand is to be ordered to
assist that party to fill up the lacunae, it
had opportunity at the trial to take care of.

26. For these principles, endorsing a
course that avoids remand, reference may
be made to the decision of the Supreme
Court in Shivakumar v. Sharanabasappa,
(2021) 11 SCC 277, where it has been held:
1134 INDIAN LAW REPORTS ALLAHABAD SERIES

"26.2. Rule 23-A came to be
inserted in Order 41 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
23-A in Order 41 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 retrial is
considered necessary. [ Such powers of
remand, as provided in Rules 23 and 23-A
of Order 41, are different than the power of
the appellate court to remit an issue for
findings under Rule 25. The power of
remitting is ordinarily to be resorted to
when the trial court has omitted to try any
material issue or to determine any question
of fact. In other words, the proper
procedure in a case where the trial court,
while disposing of the suit on merits, had
failed to determine one or more of the
material issues/questions, is to remit the
issue/question(s) under Rule 25 and not to
remand
the
whole
case
for
retrial.
Ordinarily, in the case of an order under
Rule 25 of Order 41, the matter is retained
on the file of the appellate court and only
the issue/question(s) are remitted to the
trial court for findings. On the other hand,
when an order of remand is made under
Rule 23 or Rule 23-A, the whole case goes
back for decision to the trial court except
on the point on which the appellate court
has returned concluded finding, if any.
While making a remand under Rule 23 or
Rule 23-A, the judgment and decree of the
trial court is required to be set aside but it is
not necessary to set aside the impugned
judgment and decree when taking recourse
to Rule 25 of Order 41.]

26.3. A comprehension of the
scheme of the provisions for remand as
contained in Rules 23 and 23-A of Order 41
is not complete without reference to the
provision contained in Rule 24 of Order 41
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.

26.4. A conjoint reading of Rules
23, 23-A and 24 of Order 41 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 41
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
manner because an unwarranted order of
remand merely elongates the life of the
litigation without serving the cause of
justice. An order of remand only on the
ground that the points touching the
appreciation of 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
1 All. Mohd. Raseed Khan Vs. Nagar Palika Parishad, Jhansi & Anr.
1135
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.

26.4.1. The decision cited by the
learned counsel for the appellants in Mohan
Kumar [Mohan Kumar v. State of M.P.,
(2017) 4 SCC 92 : (2017) 2 SCC (Civ) 368]
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 [Mohan Kumar v. State of M.P.,
FA No. 3 of 1998, order dated 24-1-2005
(MP)] the appeal so filed by the appellant
but proceeded to dismiss the entire suit
with the finding that the appellant-plaintiff
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 nonexamination 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 retrial 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 fill-
up the lacuna in its case.

26.5. It gets perforce reiterated
that the occasion for remand would arise
only when the factual findings of the trial
court are reversed and a retrial is
considered necessary by the appellate
court.

26.6. 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
appellant-plaintiffs that they were denied
any opportunity to produce any particular
evidence or if the trial was vitiated because
of any alike reason. As noticed, there had
been several suspicious circumstances
surrounding the will in question, some of
which were noticed by the trial court but
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(emphasis by Court)

27. Endorsing the same principle is
Nadakerappa v. Pillamma, 2022 SCC
OnLine SC 387, it was held by their
Lordships of the Supreme Court:

"25. The Division Bench, without
assigning any cogent reasons, has set aside
the order of the learned Single Judge and
has remanded the matter to the Land
Tribunal. It is settled law that the order of
remand cannot be passed as a matter of
course. An order of remand cannot also be
passed for the mere purpose of remanding a
proceeding to the lower court or the
Tribunal. An endeavour has to be made by
the Appellate Court to dispose of the case
on merits. Where both the sides have led
oral
and
documentary
evidence,
the
Appellate Court has to decide the appeal on
merits instead of remanding the case to the
lower court or the Tribunal. We are of the
view that, in the instant case, the Division
Bench has remanded the matter without
any justification."

28. The principle finds echo in a more
recent decision of the Supreme Court in
Arvind Kumar Jaiswal v. Devendra
Prasad
Jaiswal
Varun,
2023
SCC
OnLine SC 146, where it has been
observed:

"3. An order of remand prolongs
and delays the litigation and hence, should
not be passed unless the appellate court
finds that a re-trial is required, or the
evidence on record is not sufficient to
dispose of the matter for reasons like lack
of
adequate
opportunity
of
leading
evidence to a party, where there had been
no real trial of the dispute or there is no
complete or effectual adjudication of the
proceedings, and the party complaining has
suffered
material
prejudice
on
that
account.1 Where evidence has already been
adduced and a decision can be rendered on
appreciation of such evidence, an order of
remand should not be passed remitting the
matter to the lower court, even if the lower
court has omitted to frame issue(s) and/or
has failed to determine any question of fact,
which, in the opinion of the appellate court,
is essential. The first appellate court, if
required, can also direct the trial court to
record evidence and finding on a particular
aspect/issue in terms of Rule 25 to Order
XLI, which then can be taken on record for
deciding the case by the appellate court."

29. In this case, as already said, there
is all evidence led by parties, which they
wished to lead and the matter was tried
before the Court of first instance with
parties conscious of each other's case. All
evidence is there on record sufficient to
dispose of the suit finally. In these
circumstances, therefore, the course of
action adopted by the Lower Appellate
Court to remand on the point of burden of
proof, which in this case is largely
academic, cannot be countenanced.

30 . In the result, this appeal succeeds
and is allowed. The impugned order passed
by the Lower Appellate Court is set aside
and the appeal is restored to its original
number on the file of the Lower Appellate
1 All. Smt. Sushma Devi & Ors. Vs. Shadra Prasad Yadav & Anr.
1137
Court, which shall now proceed with the
appeal on a day-to-day basis and decide the
same in all eventualities within three months
of the date of receipt of a copy of this
judgment. Costs of this appeal shall abide the
event before the Lower Appellate Court.

31. Let a copy of this judgment be
communicated through the learned District
Judge, Jhansi to the Court, that would now
be in seisen of the appeal.
----------
(2024) 1 ILRA 1137
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2023

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 2417 of 2007

Smt. Sushma Devi & Ors. ...Appellants
Versus
Shadra Prasad Yadav & Anr.
 ...Respondents

Counsel for the Appellants:
Sri Ram Singh, Sri Amit Kumar Sinha,
Deepali Srivastava Sinha

Counsel for the Respondents:
Sri Aditya Singh Parihar, Sri Pavan Kumar
Mishra, Sri Arvind Kumar

A. First Appeal From Order - Partly
Allowed, Tribunal's Award Modified - The
appellants challenged the Motor Accident Claims
Tribunal's award holding 50% negligence of the
deceased and reducing compensation - Held,
the Tribunal erred in relying on an unproven site
plan, and the appeal was partly allowed, setting
aside the 50% contributory negligence finding
and modifying compensation calculations. (Paras
2, 16, 21)

B. Negligence Determination - Site Plan
Not Reliable - The Tribunal relied on an
unproven site plan to attribute 50% negligence
to the deceased - Held, as per Jiju Kuruvila Vs
Kunjujamma Mohan, Kumari Kiran Vs Sajjan
Singh, and National Insurance Co. Ltd.