MOHAN KUMARversusSTATE OF MADHYA PRADESH & ORS.

                         [2017) 2 S.C.R. 889


                         MOHAN KUMAR                                      A
                                  v.
             STATE OF MADHYA PRADESH & ORS.
                   (Civil Appeal No. 1412 of2008)
                          MARCH 07, 2017                                  B
                                                    ~-J-,




  [R K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code o.f Civil Procedure, 1908:
        Or. 41, r. 23A; Or. 27, r. 5B - Construction on the land owned
by the appellant, by the State Authorities - Collector passed order       c
to remove the trespass and thereafter suggested the authorities to
allot anotfler land in lieu of appellant's land - Authorities assessed
the land of the appellant at the rate·of Rs. 1501- per sq. meter. and
assessed the land proposed to be given to the appellant at the rate
of Rs. 800/- per sq. meter - On challenge to action of the authorities,
                                                                          D
High Court directed the appellant to institute civil suit - Suit partly
decreed by trial court directing the ~uthorities to acquire the land
and to pay market value of the land to the appellant - However,
rejected the claim of appellant to allot alternate land - Appeal by
appellant - High Court dismissed the appeal holding that decree
was not sustainable as the appellant had failed to examine the            E
vendor of the land to prove his title - On appeal, held: High Court
wrongly dismis~ed the appeal by not affording opportunity to the
appellant-plaintiff to adduce proper evidence in support of his case -
High Court should have remanded the case to trial court taking
recourse to power u/Or. 41, r. 23A, for retrial of the suit:__ Matter
                                                                          F
remanded to trial court for re.trial - Since the case is against the
Stale and local bodies, court should endeavour to assist the parties
in. settling the case in view of provisions u/Or. 27, r. 5B.
     Allowing the appeal and remanding the case to trial court,
the Court
                                                                          G
     HELD: 1.1 The High Court was of the view 'that it was
obligatory upon the appellant. (plaintifl) to prove his title by
examining his vendor and since it was .not done, the decree pass~d
by the Trial Court in plaintiff's favour was not legally sustainable.
Even assuming that the High Court was right in its view, it should
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                               889
890             SUPREME COURT REPORTS                     (2017] 2 S.C.R.


A     have given an opportunity to the appellant to prove his title by
      allowing bj~ to adduce proper evidence in support of bis case
      and for that; the High Court should have remanded the case to ·
      the Trial. Court for retrial of the snit. This, the High Court could
      do by taking recourse to powers under Order 41 Rule 23A of the
      CPC. [Paras 19 - 21] (893-G-H; 894-A, D]
B
            1.2 The appellant suffered more damage to bis 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
c     the order in respondents' (defendants).favour in appellant's appeal.
      [Para 20] (894-B]

            1.3 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
D     accordance with law uninfluenced by any of the observations in
      'the present judgment and of the High Court. [Para 24] [894-F]

           2. Since the case is against the State Government ~nd local
      bodies, it is the duty of the Court to make, in the firs(instance,
      every endeavor to assist the parties to settle in respect of subject
E     matter of the suit, in view of the provisions of Or. 27 r. SB of CPC
      and, if for any reason, settlement is not arrived at, then prnceed
      to decide the suit on merits, in acc!Jrdance with law. [Para 27] ·
      (895-D]                                                      -

              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1412 of
 F    2008.

            From the Judgment and Order dated 24.01.2005 of the High Court
      of Judicature at Madhya Pradesh in First Appeal No. 3 of 1998.

             C. L. Sahu, Ms. Hema Sahu, Rajendra Sahu, Rishabh Sahu,Advs.
o     for the Appellant.
           Harshvardhan Jha, Ms. Yugandharan Jha, Adarsh Upadhyay,
      Purushaindra Kaurav, Mishra Saurabh, Ankit Kr. Lal, B. S. Banthia,
      Advs. for the Respondent.
         · The Judgment of the Court was delivered
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  MOHAN KUMAR v. STATE OF MADHYA PRADESH & ORS.                             891



      ABHAY MANOHAR SAPRE, J. 1. This appeal is ,filed by                   A
plaintiff No.I 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.
                                                                             B
      2. We herein set out the facts, in brief, to appreciate the issues
involved in this appeal.           ,        ,
     3. The appellanfis plaintiffNo. l 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 Su1vey No.       c
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          D
mutated in the revenue record as the "owners of the land".
        5. Three temples and two Darghas were alleged to have been
  c;nstructed 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 ofGwalior(respondent No.2) for the public user       E
  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 tl:erefrom

  Devasthanam (Regulation) Act.
                                                   .  .
  under Section 4(2) of the Madhya Pradesh Public Premises and
                                                                        ,
                                                                             F


       7. The Collector then reconsidered the appellant's request and
suggested respondent No.2~Municipal Corporation of Gawlior to allot
3Sf65 sq.meter ofland near Surya Narain Temple situated in Dnulatganj
                                                                             G
to the appellant in lieu of the appellant ls land in question.
      8. The Municipal Corporation of Gwalior expressed their
 agreement to the proposal made by the Collector ahd 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.
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892             SUPREME COURT REPORTS                             (20 I 7] 2 S.C.R.



A     A report was, accordingly, received assessing the value of the I.and of
      the appellant at the rate of Rs. I 50/- 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.
B             9. Dissatisfied with the action of the respondents, the appellant
       and her mother filed a petition being W.P.(MP No. 29011989 before the
        High Court. It was disposed of by the High Court on 22.06. I 989 directing
        the Municipal Corporation to remove latrines, sewer lines, septic tank
      . constructed on the land shown in Appendix' A'. As no action was t~ken,
        the second Misc. Pet. No. 859of1989 was filed by the appellant which
c       was also disposed of by the High Court by order dated I 6.03.1992
        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 Cour(.
        This Court affirmed the order of the High Court vide its order dated
D       08.04.1994.
             10. The respondents, in the meantime, started construction of the
   . tel1ljlle/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
 E   'A'. The appellant, therefore, served notice on die 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
 F     Civil Suit No. 78A of 1994 before the VIII Addi. DistrictJudge, Gwalior
       against the respondents for a declaration ofthe title, permanent injunction
       and for the recovery of the possession in respect of the dispute<! land
       Survey No. 899, area being I 8 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,
 G     Gwalior contested the suit and filed written stateme.nts.
              12. The Trial Court framed nine issues. Parties adduced. evidence.
              13. Videjudgment dated 29.11. I 997, 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
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 MOHAN KUMAR v. STATE OF MADHYA PRADESH & ORS.                                    893
          [ABHAY MANOHAR SAPRE, J.]

by constructing temple, Dargah, latrines and others by the respondents.           A
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 lana was being used for public purpose.
       14. Against that part of the judgment of the Trial Court which              B
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.
                                                                                   c
       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 regardrng ownership of
the appellant over the suit land.
     16. Against the said judgment, the appellant has filed this appeal            D
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              E
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       F
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 tne
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 hio title by
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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 wel I.                                    ·
       20. In our considered opinion, assuming that the High Court was
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894             SUPREME COURT REPORTS                            (2017] 2 S.C.R.


A     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. lt 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
B
      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. Jn other words, the High Court having held that the plaintiff
c     was not able to prove his tide to the land in the suit due to non-exami1iation
      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, ihe High
      Court could do by taking recourse to powers under Order 41 Ruic 23A
D     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.'
 E          23. We are, therefore, of the considered opinion that instead of
      now remanding the case tCI 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.
 F           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
G     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 SB of the
      Code of Civil Procedure which reads as under.
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 MOHAN KUMAR v. STATE OF MADHYA_.PRADESH & ORS.                                 895
          [ABHAY MANOHAR SAPRE, J.]

       "SB. Duty of court in suits against the government or a                  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
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       with the nature and circumstances of the case, to assist the
       parties in arriving at a settlement i~ 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, th.e court may adjourn
                                                                                c
       the proceeding for such period ~s it thinks fit, to enable
       attempts to be made to effect such a "settlement.
       (3) The power conferred und~r sub-rule (2) is in nddition
       to any other power of the court ·to adjourn proceedings."
                                                                                D
        27. Since we find th.at the case at hand is against the State
Government and local bodies, it is the du!)' of the Court to make, in the
first instance, every endeavor to assistthe parties to settle in respect of
subject matter of the suit and, if for any reason, settlement is nvt arrived
at then proceed to decide the suit on merits in accordance with law.
                                                                                 E
      28. The appeal thus succeeds and is allowed. Impugned judgment
as also the judgment and decree, of th~ Trial Court are set aside. The
Trial Court is directed to decide the suit keeping in view the observations
made above.


Kalpana ·K. Tripathy                                          Appeal allowed.