GANGAGAR Vs. MALKARJUN

JUDGEMENT

(1.) The appellants herein / original plaintiffs filed R.C.S. No. 31 OF 1985 against the defendants / respondents herein for recovery of the encroached portion of the land and also claimed mesne profits. One Gangaram was the father of plaintiff No.1 and grand father of plaintiff No.2 and 3 and defendant No.1 is the father of defendant Nos.2 and 3. Gangaram was the original owner of Survey No.55 admeasuring 15 acres and 31 Gunthas. Gangaram was the owner of Survey No.54. These lands were adjoining and adjacent to Survey No.55. 27th January, 1976 the plaintiffs got the land measured from the D.I.L.R., and the said authority found that the respondents have encroached upon the plaintiffs land to the extent of 10 R. The plaintiffs therefore, filed suit against the defendants. The said suit was heard on merits and the trial Court decreed the suit by observing that the respondents have encroached upon the plaintiffs ' land. The respondents herein filed appeal being Appeal No.206/1990. The learned appellate Judge heard the appeal and was pleased to remand the matter to the trial Court for retrial. After retrial, the learned trial Court again held in favour the plaintiffs and decreed the suit to the extent of 16 R. The respondents again filed R.C.A. No.142 of 1996 and the learned appellate Judge, who heard the appeal, again remanded the matter back to the trial Court for fresh trial. Therefore, aggrieved by the said order, this appeal from order has been filed by the appellants.

(2.) The learned Counsel for the appellants submitted that the lower appellate Court has remanded the matter back even for the second time. When the trial Court has adjudicated the matter on 2nd occasion, it was not proper for the lower appellate Court to remand the matter back to the trial Court for fresh adjudication. According to the learned Counsel for the appellants, the lower appellate Court instead of remanding the matter for second time ought to have framed and recast the issue and should have proceeded with hearing of the appeal on merits.

(3.) Though the respondents are served and appearance is entered on their behalf, when the matter was called out, none appeared for them. No reply has been filed on behalf of the respondents and in absence of any reply either oral or written, the pleadings in this appeal from order remained un-controverted on behalf of the respondents.