Sh. Manoj Kumar vs Sh. Satish Chand and Others

Sanjay Karol, J.—Appellant Manoj Kumar filed a suit for mandatory and permanent prohibitory injunction, inter alia, against defendant Satish Chand/one of the respondents herein. Vide judgment and decree dated 27.08.2007, learned Civil Judge (Junior Division), Court No. 2, Rohru, District Shimla, H.P. in Civil Suit No. 24/1 of 2004/02, titled as Manoj Kumar Versus Satish Chand & others, has decreed the suit, directing defendant No. 1 to remove the super structure raised on the suit land and deliver possession thereof to the plaintiff. Satish Chand filed an appeal, which stands allowed by the Court of learned Additional District Judge, Shimla, Camp at Rohru, vide judgment and decree dated 21.07.2012 in Civil Appeal No. 23-R/13 of 2007, titled as Sh. Satish Chand Versus Sh. Manoj Kumar & others. Findings returned by the trial Court, as also its judgment and decree stands set aside in toto. Plaintiff''s suit stands dismissed. Primarily what weighed with the lower Appellate Court, was the relevancy and binding effect of report (Ex. P.W. 4/A), that of the Naib Tehsildar, A.C. 2nd Grade, Tikkar.

Mr. G.D. Verma, learned Senior counsel has invited my attention to the judgment dated 13.04.2011 passed by this Court in CMPMO No. 255 of 2010, titled as Satish Chand Versus Manoj Kumar & others. According to learned Senior counsel, the lower Appellate Court erred in not taking into account the said decision, which also deals with the report (Ex. P.W. 4/A), while disposing of the appeal. Significantly in the said decision, this Court had upheld order dated 14.05.2010 passed by the Additional District Judge, Shimla, in an application filed by Satish Chand.

While deciding the main appeal, the lower Appellate Court has not taken into account the relevancy, significance and binding effect of this order in the backdrop of respective evidence and other material placed on record by the parties.

As such, on this short ground alone, judgment dated 21.07.2012 passed by learned Additional District Judge, Shimla, Camp at Rohru, in Civil Appeal No. 23-R/13 of 2007, titled as Sh. Satish Chand Versus Sh. Manoj Kumar & others, is set aside, remanding the matter back to the learned Appellate Court to decide the appeal afresh in accordance with law, after taking into account the judgment passed by this Court, as also entire material placed on record by the parties. Liberty is granted to the parties to place on record any other material, if need so arises.

Mr. Virender Singh Chauhan, learned counsel for respondent No. 1 submits that the Appellate Court should decide the appeal uninfluenced of any observations made by this Court in Satish Chand (supra). I am afraid, this submission only merits rejection. Appeal has to be decided on the basis of rights which stand fructified inter se them, by way of judicial pronouncements.

Parties are directed to appear before learned Appellate Court on 10.01.2014. Registry is directed to immediately send the record back. With the aforesaid observations, the present appeal stands disposed of, so also pending applications, if any.