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Remand to fresh trial = we are inclined to allow the appeal and while setting aside of the impugned order restore the suit to its file and remand the case to the Trial Court for deciding the suit afresh on merits. 19) The need to remand the case is called for because we find that the High Court while dismissing the appellant's first appeal recorded a finding that since the appellant (plaintiff) failed to prove his ownership over the suit land inasmuch as the plaintiff did not examine his vendor to prove his sale deed, the Trial Court was not justified in decreeing the appellant’s suit and granting declaration of ownership in his favour in relation to the suit land. In other words, the High Court was of the view that it was obligatory upon the appellant (plaintiff) to prove his title by examining his vendor and since it was not done, the decree passed by the Trial Court in plaintiff's favour was not legally sustainable. This finding of the High Court, as mentioned above, resulted in dismissal of the appeal and the suit as well. 20) In our considered opinion, assuming that the High Court was right in its view, it should have given an opportunity to the appellant to prove his title by allowing him to adduce proper evidence in support of his case and for that, the High Court should have remanded the case to the Trial Court for retrial of the suit. It was more so because we find that the appellant suffered more damage to his case in prosecuting his own appeal. In the absence of any challenge laid by the defendants to the part of the decree passed in plaintiff’s favour by the Trial Court, the appellate Court virtually passed the order in respondents’ (defendants) favour in appellant’s appeal. 21) In other words, the High Court having held that the plaintiff was not able to prove his title to the land in the suit due to non-examination of his vendor, all that the High Court, in such circumstances, should have done was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his case (title to the land) and adduce proper evidence in addition to what he had already adduced. This, the High Court could do by taking recourse to powers under Order 41 Rule 23A of the CPC. 22) Since we are inclined to remand the case by taking recourse to the powers available under Order 41 Rule 23A CPC, it is not considered necessary to examine any other question arising in the case. 23) We are, therefore, of the considered opinion that instead of now remanding the case to the first Appellate Court, it would be just and proper to remand the case to the Trial Court to retry the suit on merits by affording an opportunity to the parties to adduce additional evidence in support of their case. 24) The parties (plaintiff and defendants) are accordingly granted liberty to amend their pleadings and adduce additional evidence. The Trial Court shall then pass a judgment in accordance with law uninfluenced by any of our observations and of the High Court. 25) Parties to appear before the concerned Trial Court on 27.03.2017 to enable the Court to conclude the proceedings preferably within six months from the date of party’s appearance. 26) Before parting with the case, we consider it apposite to bring to the notice of Trial Court the provisions of Order 27 Rule 5B of the Code of Civil Procedure which reads as under. | | | |“5B. Duty of court in suits against the government or a public| | |officer to assist in arriving at a settlement.- (1) In every | | |suit or proceeding to which the government, or a public | | |officer acting in his official capacity, is a party, it shall| | |be the duty of the court to make, in the first instance, every| | |endeavour, where it is possible to do so consistently with the| | |nature and circumstances of the case, to assist the parties in| | |arriving at a settlement in respect of the subject matter of | | |the suit. | | | | | |(2) If, in any such suit or proceedings, at any stage, it | | |appears to the court that there is a reasonable possibility of| | |a settlement between the parties, the court may adjourn the | | |proceeding for such period as it thinks fit, to enable | | |attempts to be made to effect such a settlement. | | |(3) The power conferred under sub-rule (2) is in addition to | | |any other power of the court to adjourn proceedings.” | | 27) Since we find that the case at hand is against the State Government and local bodies, it is the duty of the Court to make, in the first instance, every endeavor to assist the parties to settle in respect of subject matter of the suit and, if for any reason, settlement is not arrived at then proceed to decide the suit on merits in accordance with law. 28) The appeal thus succeeds and is allowed. Impugned judgment as also the judgment and decree of the Trial Court are set aside. The Trial Court is directed to decide the suit keeping in view the observations made above.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.1412 OF 2008


Mohan Kumar                        ….Appellant(s)

                                   VERSUS

State of Madhya Pradesh & Ors.   …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by plaintiff No.1 against the judgment and  final
order dated 24.01.2005 passed by the High  Court  of  Judicature  at  Madhya
Pradesh, Jabalpur Bench at Gwalior in First Appeal No.  3  of  1998  whereby
the High Court dismissed the  appeal  and,  in  consequence,  dismissed  the
plaintiff’s suit which was partly decreed by the Trial Court.
2)    We herein set out the  facts,  in  brief,  to  appreciate  the  issues
involved in this appeal.
3)    The appellant is  plaintiff  No.1  whereas  the  respondents  are  the
defendants in a suit out of which this appeal arises.
4)    The case of the appellant is that the  land  bearing  Survey  No.  899
measuring 18 Biswas situated at Apaganj Mama Ka Bazar Lashker Gawlior,  M.P.
was purchased by him along with his mother from its previous  owner  Jaswant
Kumar  through  registered  sale  deed  dated  15.09.1941.    The   physical
possession thereof was delivered to the appellant and his  mother  by  their
vendor and their names were also  mutated  in  the  revenue  record  as  the
“owners of the land”.
5)    Three temples and two Darghas were alleged to  have  been  constructed
on the land in dispute while latrines and bathrooms as well as septic  tanks
were also alleged to have been constructed by the Municipal  Corporation  of
Gwalior (respondent No.2) for the public  user  and  sewer  lines  and  pipe
lines  were  also  laid  by  the  Public   Health   Engineering   Department
(respondent No.3) on a part of the said land.
6)    The appellant, accordingly,  approached  the  Collector,  Gwalior  for
removing the trespass committed on their land.    The  Collector  passed  an
order to remove the said trespass  by  dispossessing  them  therefrom  under
Section  4(2)  of  the  Madhya  Pradesh  Public  Premises  and   Devasthanam
(Regulation) Act.
7)    The Collector then reconsidered the appellant’s request and  suggested
respondent No.2-Municipal Corporation of Gawlior to  allot  352.65  sq.meter
of land near Surya Narain Temple situated in Daulatganj to the appellant  in
lieu of the appellant’s land in question.
8)    The Municipal Corporation of Gwalior expressed their agreement to  the
proposal made by the  Collector  and  accordingly  deputed  an  Engineer  to
evaluate the cost of the land owned by the appellant and his mother  and  of
the  proposed  land  situated  near  Surya  Narain  Temple.  A  report  was,
accordingly, received assessing the value of the land of  the  appellant  at
the rate of Rs.150/- per sq. meter.   So  far  as  the  land  situated  near
Surya Narain temple was concerned, it  was  assessed  as  Rs.800/-  per  sq.
meter.  Letters were also addressed by the Collector and Legal Aid  in  this
regard.
9)    Dissatisfied with the action of the  respondents,  the  appellant  and
her mother filed  a petition being W.P.(MP  No.  290/1989  before  the  High
Court. It was disposed of by the High  Court  on  22.06.1989  directing  the
Municipal  Corporation  to  remove  latrines,  sewer  lines,   septic   tank
constructed on the land shown in Appendix ‘A’.  As no action was taken,  the
second Misc. Pet. No. 859 of 1989 was filed by the appellant which was  also
disposed of by the High  Court  by  order  dated  16.03.1992  directing  the
appellant to institute a civil suit for  getting  the  dispute  adjudicated.
Aggrieved by the said order  of  the  High  Court,  the  appellant  filed  a
petition being S.L.P.(c) No. 11815 of 1992 before this  Court.   This  Court
affirmed the order of the High Court vide its order dated 08.04.1994.
10)    The  respondents,  in  the  meantime,  started  construction  of  the
temple/mosque on the land area being 40x6 sq.ft. owned by the appellant  and
his mother.  One Pump House was also being constructed by digging  bored  in
the land by  respondent  No.3  on  the  land  shown  in  Appendix  ‘A’.  The
appellant,  therefore,  served  notice  on  the  Municipal  Corporation   on
04.08.1994 raising objections to  the  authorities  but  no  action  towards
exchange of the land shown in  Appendix  ‘B’  in  respect  of  the  land  in
dispute was taken and nor the activities were discontinued.
11)   The appellant and his mother, therefore, filed a  civil  suit  bearing
Civil Suit No. 78A of 1994 before the VIII  Addl.  District  Judge,  Gwalior
against  the  respondents  for  a  declaration  of  the   title,   permanent
injunction and for  the  recovery  of  the  possession  in  respect  of  the
disputed land Survey No. 899, area being 18  Biswas  situated  in  Appaganj,
Mama Ka Baazar, Lashkar, Gwalior, out  of  which  this  appeal  arises.  The
respondents, i.e.,  State  of  Madhya  Pradesh  and  Municipal  Corporation,
Gwalior contested the suit and filed written statements.
12)   The Trial Court framed nine issues. Parties adduced  evidence.
13)   Vide judgment dated 29.11.1997, the Trial  Court  partly  decreed  the
suit filed by the appellant.  It was held that the appellant-plaintiffs  are
the owners of the land in  dispute,  on  which  trespass  was  committed  by
constructing temple, Dargah, latrines and others by the respondents. It  was
held that the appellant is entitled to get the  encroachments  removed  from
the land in suit. It was also held that the Government  should  acquire  the
land and pay the market value of the land to the appellant because the  land
was being used for public purpose.
14)   Against that part of the judgment of the Trial  Court  which  resulted
in rejection of the claim of the appellant to allot him any  alternate  land
in lieu of his land on which the encroachment was made, the  appellant  felt
aggrieved and filed an appeal being  F.A.  No.3  of  1998  before  the  High
Court. So far as the defendants are concerned, they were satisfied with  the
part of the decree passed by the Trial Court against them.
15)   By impugned  judgment  dated  24.01.2005,  the  High  Court  not  only
dismissed the appeal of the plaintiff but proceeded to  dismiss  the  entire
suit including the finding of the Trial Court  regarding  ownership  of  the
appellant over the suit land.
16)   Against the said judgment, the appellant has filed this appeal by  way
of special leave petition before this Court.
17)   Heard Mr. C.L.  Sahu,  learned  counsel  for  the  appellant  and  Mr.
Harshvardhan Jha, learned counsel for the State.
18)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal  and  while  setting
aside of the impugned order restore the suit to  its  file  and  remand  the
case to the Trial Court for deciding the suit afresh on merits.
19)   The need to remand the case is called for because  we  find  that  the
High Court while dismissing the appellant's first appeal recorded a  finding
that since the appellant (plaintiff) failed to prove his ownership over  the
suit land inasmuch as the plaintiff did not examine his vendor to prove  his
sale deed, the Trial Court was not justified in  decreeing  the  appellant’s
suit and granting declaration of ownership in his favour in relation to  the
suit land. In other words, the High Court  was  of  the  view  that  it  was
obligatory upon the appellant (plaintiff) to prove his  title  by  examining
his vendor and since it was not done, the decree passed by the  Trial  Court
in plaintiff's favour was not legally sustainable. This finding of the  High
Court, as mentioned above, resulted in dismissal of the appeal and the  suit
as well.
20)   In our considered opinion, assuming that the High Court was  right  in
its view, it should have given an opportunity to the appellant to prove  his
title by allowing him to adduce proper evidence in support of his  case  and
for that, the High Court should have remanded the case to  the  Trial  Court
for retrial of the suit. It was more so because we find that  the  appellant
suffered more damage to his case in prosecuting  his  own  appeal.   In  the
absence of any challenge laid by the defendants to the part  of  the  decree
passed in plaintiff’s  favour  by  the  Trial  Court,  the  appellate  Court
virtually  passed  the  order  in  respondents’   (defendants)   favour   in
appellant’s appeal.
21)   In other words, the High Court having held that the plaintiff was  not
able to prove his title to the land in the suit due  to  non-examination  of
his vendor, all that the High Court,  in  such  circumstances,  should  have
done was to remand the case to the Trial Court by affording  an  opportunity
to the appellant to prove his case (title to the  land)  and  adduce  proper
evidence in addition to what he had already adduced.  This, the  High  Court
could do by taking recourse to powers under Order 41 Rule 23A of the CPC.
22)   Since we are inclined to remand the case by  taking  recourse  to  the
powers available  under  Order  41  Rule  23A  CPC,  it  is  not  considered
necessary to examine any other question arising in the case.
23)   We are, therefore, of the  considered  opinion  that  instead  of  now
remanding the case to the first  Appellate  Court,  it  would  be  just  and
proper to remand the case to the Trial Court to retry the suit on merits  by
affording an opportunity to the parties to  adduce  additional  evidence  in
support of their case.
24)    The  parties  (plaintiff  and  defendants)  are  accordingly  granted
liberty to amend their pleadings and adduce additional evidence.  The  Trial
Court shall then pass a judgment in accordance with law uninfluenced by  any
of our observations and of the High Court.
25)   Parties to appear before the concerned Trial Court  on  27.03.2017  to
enable the Court to conclude the proceedings preferably  within  six  months
from the date of party’s appearance.
26)   Before parting with the case, we consider it apposite to bring to  the
notice of Trial Court the provisions of Order 27 Rule  5B  of  the  Code  of
Civil Procedure which reads as under.
|                                                              | |
|“5B. Duty of court in suits against the government or a public| |
|officer to assist in arriving at a settlement.- (1) In every  | |
|suit or proceeding to which the government, or a public       | |
|officer acting in his  official capacity, is a party, it shall| |
|be the duty of the court to make, in the first instance, every| |
|endeavour, where it is possible to do so consistently with the| |
|nature and circumstances of the case, to assist the parties in| |
|arriving at a settlement in respect of the subject matter of  | |
|the suit.                                                     | |
|                                                              | |
|(2) If, in any such suit or proceedings, at any stage, it     | |
|appears to the court that there is a reasonable possibility of| |
|a settlement between the parties, the court may adjourn the   | |
|proceeding for such period as it thinks fit, to enable        | |
|attempts to be made to effect such a settlement.              | |
|(3) The power conferred under sub-rule (2) is in addition to  | |
|any other power of the court to adjourn proceedings.”         | |

27)   Since we find that the case at hand is against  the  State  Government
and local bodies, it is the  duty  of  the  Court  to  make,  in  the  first
instance, every endeavor to assist the  parties  to  settle  in  respect  of
subject matter of the suit  and,  if  for  any  reason,  settlement  is  not
arrived at then proceed to decide the suit  on  merits  in  accordance  with
law.
28)   The appeal thus succeeds and is allowed.  Impugned  judgment  as  also
the judgment and decree of the Trial Court are set aside.  The  Trial  Court
is directed to decide the suit keeping in view the observations made  above.



………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 07, 2017
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