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Satya Prakash And Others v. Ishwar Singh - FIRST APPEAL FROM ORDER No. - 1588 of 2007 [2007] RD-AH 14549 (27 August 2007)

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Hon. Pankaj Mithal, J.

The defendants of original suit No. 422 of 2002 (Ishwar Singh Vs. Satya Prakash & Others) have preferred this First Appeal From Order.

The plaintiff-respondent had instituted the suit for permanent injunction restraining the defendants-appellants and their agents and representatives from damaging the disputed drain and for illegally occupying it and further to restrain them from interfering in his right to use of the said drain. In short the dispute in the suit was with regard to a drain only. The plaintiff-respondent claims it to be a part of the house which was alleged to have been purchased by his father vide registered sale deed dated 2.8.1956.

The suit after contest was dismissed by the Court of first instance vide judgment and order dated 20.5.2003. Aggrieved the plaintiff-respondent has preferred Civil Appeal No. 56 of 2003. The lower appellate court vide judgment and order dated 3.5.2007 has allowed the appeal after setting aside the judgment and order of the court of first instance. The lower appellate court remanded the matter for decision afresh in the light of the registered agreement to sell dated 9.11.1956.

Sri Madhusudan Dixit, learned counsel for the appellants has submitted that there was no occasion for the lower appellate court to have remanded the matter. The court of first instance has considered the aforesaid sale deed in dismissing the suit.

I have considered the above submission of the learned counsel for the appellant and has perused the two judgments and orders of the courts below. The court of the first instance has only referred to the registered sale deed dated 2.8.1956 but the findings about the drain have not been recorded on its basis. Moreover, the sale deed dated 9.11.1956 is different and has been produced by the plaintiff-respondent during the pendency of the appeal. The lower appellate court in view of the aforesaid sale deed dated 9.1.1956 which was produced as evidence in appeal had remanded the matter. The lower appellate court has remanded the matter for cogent reasons. The judgment and order of remand causes no prejudice to the defendant-appellants. Therefore, I do not find any error in the judgment and order of the lower appellate court.

Accordingly, the appeal lacks merit and is dismissed. No orders as to costs.

Dt. 27.8.2007

S.S. 1588/2007


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