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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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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