Decided on May 30,1952

GHINSA Appellant
SAMPAT Respondents


- (1.)THIS second appeal arises out of a suit filed by the plaintiffs appellants for possession of land from which they alleged they had been dispossessed by the defendants respondents. The suit was filed in the court of the S. D. O. Kishangarh who decreed the suit in favour of the plaintiffs. Two issues framed by the S. D. O. , were (1) Whether the defendant forcibly took possession of the land in dispute which was prepared for sowing by the plaintiffs (burden on plaintiffs); (2) Whether the plaintiffs restored the land in dispute to the defendants in accordance with the contract after the Rabi harvest of Smt. 2006 (burden on defendants ).
(2.)THE S. D. O. decided both these issues together and as the defendants had failed to prove that the plaintiffs had voluntarily surrendered the land he decreed the suit.
The Additional Commissioner has held that as the trial court had framed an issue about the defendants taking possession of the land forcibly and the plaintiff had not produced any evidence the defendant's were misled and they also did not produce full evidence about voluntary surrender by the plaintiffs. He therefore ordered for remand of the case to the trial court to give further opportunity to the defendants to produce evidence in respect of the issue about voluntary surrender.

It is against this order of remand that the plaintiffs have come up in second appeal. It is urged on their behalf that a case can be remanded only under rules 195 and 197 of the rules framed under sec. 8 of the Rajasthan Revenue Courts Act, 1951 and none of the condition of those rules is fulfilled in this case. The trial court had not disposed of the case upon a preliminary point but had framed issues on all points and taken all the evidence of both the parties on those issues and finally decided the case. When all the evidence had been recorded and if appellate court considered that any resettling of the issues was required it could do under rule 196 and finally determine the suit notwithstanding that the judgment of the court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate court proceeds.

It is argued by the counsel for the opposite party that if the case is not covered by rules 195 and 197 the court had inherent powers under rule 65 for remand if it considered fit to do so.

The inherent powers of the court are used when it is necessary to do so for the ends of justice or to prevent the abuse of the process of the court. In this case there was no reason for defendants not to adduce full evidence to prove the issue burden of which was placed upon them. The issue about forcible dispossession framed by the trial court was really unnecessary and the material point to be determined in this case was only whether the land had been voluntarily surrendered by the plaintiffs. By mere framing of an unnecessary issue the defendants could not be said to have been prejudiced in producing evidence in support of another issue burden of which lay upon them. Both the parties had actually led evidence regarding the issue of voluntary surrender and there was no reason to give further opportunity to the defendants to improve upon their case. The reason given by the learned Additional Commissioner for remand cannot be said to be covered by any of the grounds upon which a remand can be ordered under the inherent powers.

I would, therefore, with the concurrence of my learned colleague, accept the appeal and set aside the order passed by the Additional Commissioner and send the case back to the Additional Commissioner for being disposed of on merits on the basis of material on record. .

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