Allahabad High Court
Khub Chand (Deceased By Lrs) Smt. Katori ... vs Ram Chand on 19 August, 1987
Equivalent citations: AIR1988ALL64, AIR 1988 ALLAHABAD 64, (1988) 2 CURCC 287
JUDGMENT A.N. Dikshita, J.
1. This second appeal has been preferred by the plaintiff-decree-holder against the judgment and decreedated 8-7-68 passed by Sri Brahm Kishore, Addl. Civil Judge, Aligarh in Civil Appeal No. 464 of 1967 whereby the judgment and decree dated 28-10-1967 passed by Sri V. S. Kulshrestha, Munsif Koil Aligarh was set aside and the case was remanded to the latter.
2. In brief the facts are that the appellant Khub Chand filed a suit (No. 564 of 1950) against Babu Lal and 13 others including Ram Chand respondent (defendant-judgment-debtor) for partition and declaration for separating his one-third share in the property. A final decree was drawn up on 6-9-63 in accordance with the joint statement of the parties recorded on 9-9-55 read with Amin's map. Consequent to the preparation of the final decree present appellant filed an execution application on 14-4-66 which was registered as Execution Case No. 101 of 1966 for delivery of possession over his separate Kura. The appellant prayed that in terms of the decree Amin may be directed to remove the bricks and Teras placed on the walls of the decree-holder and also for an order to the judgment-debtor Ram Chand to pay Rs. 300/-as the price of 4 pairs of doors and 3 Jan galas. Reply to such an application of the decree-holder was filed by Ram Chand present respondent. The objections filed by the appellant under Section 47 C.P.C. were dismissed by the Munsif and the execution was struck off in full satisfaction on the ground that Amin had already delivered possession to the appellant over his Kura.
3. Aggrieved the appellant preferred an appeal. The lower appellate court on the basis of the record framed following two points for determination of the appeal:
1. Whether in execution of a final decree for partition claiming the relief for mere delivery of possession the execution Court has jurisdiction to order the demolition and removal of easementary encroachments already existing prior to the passing of the final decree.
2. Whether the judgment-debtor Ram Chand had removed four pairs of doors valued at Rs. 200/- and 3 pairs of Jangalas valued at Rs. 100/-?. If so, its effect?.
4. The lower appellate court while deciding point No. 1 came to the conclusion that on a perusal of the terms of the joint statement of parties' counsel dated 9-9-55 on which the final decree is based shows that parties merely intended to declare their rights without prescribing the remedy for their enforcement The lower appellate court found that a declaratory decree is not executable. It was held that the appellant cannot have the easementary encroachment removed and demolished m execution of the partition decree.
5. While deciding point No. 2 the lower appellate court found that the learned Munsif did not give any opportunity to the parties to lead oral evidence in support of their respective contentions as regards the removal of the doors and the Jangalas. The lower appellate court found that it was the duty of the executing court to have afforded an opportunity to lead oral evidence as mere affidavit or counter-affidavit were of no help. Finding that the trial court erred in relying on the Amin's report the lower appellate court allowed the appeal to the extent that the learned Munsif would afford an opportunity to both the parties to lead such oral and documentary evidence as is considered necessary while deciding point No. 2. It was further held by the lower appellate court that the findings already recorded by him on point No. 1 shall be binding upon the learned Munsif.
6. Aggrieved by the finding on point No. 1 this second appeal has been preferred on 5-10-1968.
7. Learned counsel for the parties have been heard.
8. Learned counsel for the respondent Sri N. K. Saxena has raised a preliminary objection that this second appeal is not maintainable as the impugned order cannot be treated as a 'decree' as it does not decide the Us between the parties nor the impugned order would be deemed to be an order falling under Order 41, Rule 23 read with Rule 23-A or Rule 25, C.P.C. and as such even an appeal under Order 43, C.P.C. would not lie. It has been submitted that the impugned order has been passed under Section 151, C.P.C against which no appeallies. It has further been submitted that even assuming without admitting that the impugned order of remand has been passed within the postulates of Order 41, Rule 23 read with Rule 23-A and Rule 25, C.P.C. then an appeal would lie under Order 43, Rule l(m) C.P.C. but in any case no second appeal lies. The submission is fallacious and deserves to be rejected as would be shown here under.
9. Learned counsel for the respondent has further submitted that the impugned order remanding the case to the lower court was passed under Section 151, C.P.C. against which no appeal lies and has placed reliance on the case of Jethanand and Sons v. State of U.P., AIR 1961 SC794. In support of his case the learned counsel for the respondent has also placed reliance on Mst. Bibi Qamar v. Mohd. Ali, AIR 1952 Pat 437, Baisnab Padhan v. Parma Padhan, AIR 1964 Ori 156 and Kirat Singh v. Trilok Singh, AIR 1984 All 155. There is nothing to indicate that the Court below invoked its inherent powers under Section 151, C.P.C. while passing an order of remand. The submission is thus without any merit.
10. Learned counsel for the appellant has submitted that the instant second appeal was filed in the month of September, 1968 under Section 100 read with S. 47, C.P.C. and has thus emphasised that the appeal was instituted prior to the amendment of the Code. It is, however, conceded by the learned counsel for the respondent that an appeal can be preferred only against a decree as provided under Section 100, C.P.C. The contention of the learned counsel for the appellant is that as the lower appellate court has conclusively determined the rights of the parties while deciding point No. 1 so formulated by it, hence it would attract the definition of the word 'decree' as enjoined under Section 2(2), C.P.C. while disposing of the appeal under Section 96, C.P.C. against which second appeal would lie as the amending Code was enforced with effect from 1-2-1977 and the appeal thus filed in the year 1968, as contended by the learned counsel for the appellant would be maintainable.
11. Before proceeding to consider the question as to whether this appeal is maintainable or not it is relevant to examine whether the lower appellate court was justified in remanding the case back to the learned Munsif for giving an opportunity to both the parties to lead such oral and documentary evidence as considered necessary on point No. 2 alone and holding that the findings recorded on point No. 1 shall be deemed to be binding on the learned Munsif. The grievance of the appellant is that the remand has been ordered only on point No. 2 while point No. 1 which decides the lis between the parties has been directed to be binding on the Munsif.
12. The instant appeal has been filed in the year 1968 under Section 100 read with Section 47 of the Code which stood unamended as the new Code came into force w.e.f. 1-2-1977. There is no challenge that an appeal would lie on the following grounds :
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in a procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits, under Section 2, Sub-clause (2) of the old Code "decree" has been defined as under : --
"(2) "Decree" means a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include --
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for defaults.
13. The plaintiff had filed the suit for partition and possession thereof. If certain easementary encroachment existed prior to the passing of the final decree it would be relevant to consider whether in execution of the decree the court would have jurisdiction for the delivery of the possession after demolition and removal of such easementary encroachment. Learned counsel for appellant has submitted that while deciding the point as formulated by the lower appellate court, this point has been finally and conclusively determined and adjudicated upon. Further a finding has been recorded that the decision arrived at on point No. 1 shall be binding on the Munsif. It is thus clear that finding has been recorded adjudicating the lis between the parties. The finding recorded by the lower appellate court on point No. 1 has thus conclusively adjudicated upon the rights of the parties and would thus come within the ambit of the word 'decree*. In the present case the lower appellate court has remanded the case for determination only on point No. 2 while finally determining point No. 1. Such a decision would clearly indicate that the point No. 1 has been finally decided and an appeal would be maintainable against such determination and adjudication of the controversy. The test however is to ascertain whether the particular finding given by the lower appellate court is a final decision or not is to extract if by the order of remand the lower court of appeal has remanded the case for determination of all the points at issue or has determined some points in controversy and remanded the case for determination of the remaining points. Instantly the court below Has finally decided point No. 1 thus disabling the rights of the appellant on this point. The controversy between the parties has thus been finally decided This view finds support in the case of Sunder Ahir v. Mst. Phuljharia, AIR 195 ? Pat 534. In the case of Ram Kishore v. Yashpal Kunwar, AIR 1941 All 224 a similar view was taken and it was held that if the order conclusively determines the rights and liabilities of the parties in a controversy which has arisen between them and which relates to execution, discharge or satisfaction of a decree, an appeal would lie. Applying this test it is found that the lower appellate court has conclusively held that the decree in regard to the delivery of possession after final decree has been prepared would not permit the plaintiff to enforce it by the removal of the encroachments. In the case of Haji Abdul Karim v. Mohd. Ismail, 1978 UPRCC 691 it was held that if the entire decree had been set aside and the case was remanded only a first appeal from the order of remand under Order 43, Rule 1, C.P.C. would lie. In such circumstances no second appeal would lie. It was further held that in view of the two distinct parts of the order both the remedies were available to the appellant and a second appeal was also maintainable. In the present case the order of the lower appellate court is not one of remand simpliciter. It is in two parts and as such this appeal is wholly competent.
14. Further it may be noticed that the lower appellate court held that in execution of final decree for partition claiming the relief for mere delivery of possession the execution court had no jurisdiction to order the demolition and removal of easementary encroachment but while recording a finding on point No. 2 as has been held that the appeal cannot be decided on merits and having no alternative left has remanded the case for a fresh trial by the learned Munsif. It was, however, made clear by the lower appellate court that the finding on point No. 1 and also the finding involved in point No. 2 as recorded by it shall be binding on the learned Munsif. It is thus manifest that there was a final adjudication on the issue of delivery of possession and such a determination tantamounts to a decree. Obviously there is a difference between a simple finding and a finding which determines the rights of the parties. No doubt a decree may not be drawn up but it would not mean that the order of the court below which determines the rights of the parties finally is not a decree. The lower appellate court has undoubtedly adjudicated on the substantive rights of the parties with regard to the controversy for possession. Such a determination of the issue is indicative of the fact that it has finally adjudicated upon this aspect.
15. In a Full Bench decision in the case of Dinamani v. Parmananda Choudhury, AIR 1980 Ori 177 it has been held that a decree indicates that it must be a format expression of an adjudication conclusively determining the rights of the parties with regard to ail or any of the matter in controversy. Apparently the order of the lower appellate court is not an order of remand simpliciter but has finally determined the rights of the parties and would thus attract the meaning of the word "decree" thus enabling the appellant to maintain the present appeal. I am further supported in my view by the decision of Parshava Properties Ltd. v. A.K. Bose, AIR 1979 Pat 308. In the instant case there is a formal expression of adjudication conclusively determining the rights of the parties and as such the appeal is maintainable. In the case of Kanji Hirjibhai v. Jivraj Dharmshi, AIR 1976 Guj 152 it was held that where there was final adjudication on the issue then such a determination amounts to a decree. In view of the above it is clear that the finding on point No. 1 would attract the definition of the word 'decree' and the appeal is legally maintainable.
16. Learned counsel for the respondent has submitted that the impugned finding on point No. 1 cannot be treated as decree is without merit. It is settled law that a second appeal would lie only against a decree. As has been shown above that the finding on point No. 1 would attract the definition of the word 'decree' the contention of the learned counsel for the respondent that no appeal lies deserves to be repelled. Another argument on behalf of the learned counsel for the respondent that such an order has been passed under Section 151, C.P.C. equally deserves to be discarded. It is clear that no appeal would lie against an order under Section 151, C.P.C. but as has been shown above that as the controversy has been conclusively determined an appeal would lie.
17. It has now to be ascertained as to whether in the said circumstances of the case, the finding of the lower appellate court on point No. 1 requires rejection. Admittedly the suit was for partition and delivery of possession. If certain impediment lay during the execution it cannot be said that the decree is unenforceable. It would have been more appropriate for the parties to have adduced evidence in respect of their respective contentions. The lower appellate court has remanded the case for recording a finding in regard to the removal of four pairs of doors and 3 pairs of Jangalas valued at Rs. 200/-and Rs. 100/- respectively. If this can be permitted then it appears fallacious as to why the Court cannot examine as to whether possession can be delivered by the demolition and removal of easementary encroachment. The finding of the lower appellate court on point No. 1 thus deserves to be set aside and it would be appropriate that the trial court also determines point No. 1 so formulated by the lower appellate court.
18. In the result the appeal succeeds. The judgment and decree as regards point No. 1 decided by the lower appellate court is set aside. The trial court shall proceed to determine the questions as formulated by the lower appellate court in its entirety after giving adequate opportunity to the parties to adduce oral as well as documentary evidence in support of their contentions. In view of the peculiar circumstances of the case the parties shall bear their own costs.