1 2026:CGHC:12013 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MA No. 111 of 2022 Nanku Ram Sahu S/o Late Sumer Sahu Aged About 90 Years R/o Village - Bori, Tahsil - Bori, District - Durg Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through The Collector, Durg District - Durg Chhattisgarh ... Respondent(s) For Appellant : Mr. Vidhya Bhusan Soni, Advocate For Respondent/ State : Mr. Lekhram Dhruv, P.L. Hon'ble Shri Bibhu Datta Guru , J Judgment on Board 13.03.2026 1. By the present appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (for brevity ‘the CPC’), the appellant/plaintiff is challenging the impugned judgment and JYOTI SHARMA Digitally signed by JYOTI SHARMA Date: 2026.03.17 10:23:07 +0530 2 decree dated 22.11.2022 passed by the learned VIth Additional District Judge, Durg, C.G. in Regular Civil Appeal No.57/2022 (State of C.G. Vs. Nanku Ram Sahu), whereby the judgment and decree passed by the learned XI Civil Judge, Class- II in Civil Suit No. 94A/2015 dated 16/03/2022 (Nanku Ram Vs. State of C.G.) has been set-aside and the matter has been remanded for retrial and fresh adjudication as per points mentioned in para 22 of the judgment rendered by the appellate court. 2. For the sake of convenience, the parties would be referred as per their status before the learned trial Court. 3. The plaintiff preferred the suit seeking declaration of title and permanent injunction pleading inter alia that the plaintiff’s father, Late Sumer Sahu, was in possession of certain agricultural lands situated at Village Bori, Tehsil Dhamdha, District Durg, bearing old Khasra Nos. 1929, 1950 and 2028, which were later renumbered as Khasra Nos. 527 and 559. Subsequently, parts of the said lands were further renumbered as Khasra Nos. 796, 797 and 802. The plaintiff submits that he remained in possession of the said lands along with his father and, after the death of his father, has continued to cultivate the same. It is further pleaded that 3 though the authorities had earlier initiated encroachment proceedings against the plaintiff and imposed monetary penalties, the plaintiff was never dispossessed from the suit land. According to the plaintiff, he has been in continuous possession and cultivation of the suit land for more than 50 years and, therefore, has perfected his title over the same by way of adverse possession. It is further stated that despite service of legal notice dated 18.06.2014 upon the defendant, no action was taken to record the land in the plaintiff’s name, hence the present suit has been filed. 4. The defendant/State has not filed any written statement before the trial Court and it was proceeded ex parte. 5. The Trial Court, after framing the issues on appreciation of the oral and documentary evidence, held that the plaintiff Nanku Ram proved that he had been in continuous possession and cultivation of the suit land bearing Khasra Nos. 796, 797 and 802 for more than 50 years. The plaintiff examined himself and another witness, Shivnath Deshmukh, who supported the plaintiff’s claim of long and continuous possession over the suit land. The documents produced by the plaintiff, including revenue records, renumbering slips, maps and khasra panchshalas of different years, also indicated the possession 4 of the plaintiff over the suit property. The Court further noted that the defendant did not contest the suit and was proceeded ex parte, and therefore the evidence adduced by the plaintiff remained unrebutted. On the basis of the material on record, the Trial Court held that the plaintiff had established continuous and hostile possession over the suit land for more than the statutory period and had perfected his title by way of adverse possession. Consequently, the suit was decreed and the plaintiff was declared owner of the suit land, and the defendant was permanently restrained from interfering with the plaintiff’s possession. 6. Aggrieved by the said judgment and decree, the defendant/State preferred Civil Appeal before the learned first Appellate Court and also filed an application under Order XLI Rule 27 of the CPC. The learned First Appellate Court, after examining the record and the additional documents produced by the appellant, allowed the application filed under Order 41 Rule 27 of the Code of Civil Procedure and took the said documents on record. On consideration of the material available, the Court found that the respondent/ plaintiff had earlier filed Civil Suit No. 1A/2011 against the State which was dismissed on 06.07.2013 and the appeal preferred 5 thereagainst was also dismissed on 17.07.2014. However, while filing the present suit for declaration of title and permanent injunction on 20.08.2014, the respondent had suppressed the fact of the earlier litigation. 7. The Appellate Court further observed that the Trial Court had neither framed nor decided the issue relating to the bar of res judicata under Section 11 of the Code of Civil Procedure and had proceeded to decide the suit ex parte without proper adjudication of the controversy. Holding that the Trial Court failed to properly appreciate the facts and law and had committed legal as well as factual errors, the Appellate Court set aside the judgment and decree dated 16.03.2022 and remanded the matter to the Trial Court for fresh adjudication. The Trial Court was directed to permit the appellant to file its pleadings and also granted liberty to the respondent to amend the plaint, if necessary, particularly explaining the circumstances under which the fact of the earlier suit was not disclosed. The Trial Court was further directed to frame appropriate issues, including the issue relating to the bar of res judicata, afford opportunity to both parties to lead evidence, and thereafter decide the suit afresh in accordance with law. 6 8. Learned counsel submits that the Appellate court failed to exercise the jurisdiction properly, as in the event, the Trial Court had omitted to frame or decide any material issue, particularly the issue relating to res judicata, the proper course available to the Appellate Court was to invoke the provisions of Order 41 Rule 25 CPC by framing the necessary issue and referring the same to the Trial Court for determination, instead of remanding the entire matter for fresh trial. Learned counsel submits that the Appellate Court has thus committed a jurisdictional error in remanding the suit as a whole. It is also argued that the respondent/defendant had not appeared before the Trial Court despite service of notice and had not filed any written statement; therefore, the Trial Court rightly proceeded ex parte and decided the suit on the basis of the evidence adduced by the plaintiff. It is further contended that the finding of the Appellate Court regarding the applicability of the principle of res judicata is also erroneous, as the earlier suit filed by the respondent was for mesne profits and not for declaration of title or permanent injunction. Hence, the impugned judgment of remand deserves to be set aside. In support of his contention, he placed reliance upon 7 the decision rendered by this Court in the matter of Anish Fulara Vs. Devcharan reported in 2014 (2) CGLJ 2. 9. I have heard learned counsel for the parties, perused the material available on record. 10. The learned First Appellate Court, by the impugned judgment, first allowed the application filed by the appellant under Order XLI Rule 27 of the Code of Civil Procedure and took the additional documents on record. Upon perusal of the said documents, the Appellate Court found that the respondent/plaintiff had earlier filed a suit against the State which had already been adjudicated, but the said fact was not disclosed in the present suit filed for declaration of title and permanent injunction. Observing that there was suppression of the material fact relating to the earlier litigation and that the Trial Court had not considered or framed any issue regarding the bar of res judicata, the First Appellate Court set aside the judgment and decree passed by the Trial Court. Consequently, the matter was remanded to the Trial Court with a direction to permit the parties to file their pleadings, allow amendment to the plaintiff, if necessary, frame appropriate issues including the issue of res judicata, afford 8 opportunity to both sides to lead evidence and thereafter decide the suit afresh in accordance with law. 11. It is the trite law that once the appellate Court decides to remand the matter, it is not required for it to adjudicate on merits involved in dispute. In fact, discussion and finding on issues involved in matter, after the appellate Court coming to conclusion that the matter needed to be remanded, is uncalled for. 12. The Supreme Court in the matter of J. Balaji Singh reported in 2017 (14) SCC 207 held thus at paras 15 & 16 : “15. Now coming to the facts of the case, we are of the considered opinion that once the first appellate court allowed the application under Order XLI Rule 27 of the Code and took on record the additional evidence, it rightly set aside the judgment/decree of the trial court giving liberty to the parties to lead additional evidence in support of their case which, in turn, enabled the trial court to decide the civil suit afresh on merits in the light of the entire evidence. The first appellate court was, therefore, justified in taking recourse to powers conferred on the appellate court under Order XLI Rule 23A for remanding the case to the trial court. We find no fault in exercise of such power by the first appellate court. 16…...The reason is that once the first appellate Court formed an opinion to remand the case, it was required to give reasons in 9 support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the trial court to decide the case on merits. Therefore, there was no need to discuss much a less record findings on several issues on merits. It was totally uncalled for.” 13. In the present matter, while remanding the matter the learned first appellate Court has not expressed its opinion on the merits of the matter. In fact, the learned first appellate Court after considering all the aspects of the matter has rightly allowed the application under Order XLI Rule 27 of the CPC and also given a direction for fresh adjudication. The Trial Court was directed to permit the appellant/defendant to file its pleadings and also grant liberty to the respondent/plaintiff to amend the plaint, if necessary, particularly explaining the circumstances under which the fact of the earlier suit was not disclosed. The Trial Court was further directed to frame appropriate issues, including the issue relating to res judicata, afford opportunity to both parties to lead their respective evidence and thereafter decide the suit afresh on merits in accordance with law. Thus, in the considered view of this Court, the appellate Court has rightly remanded the matter to the trial Court, which does not call for any interference. 10 14. As an upshot, the second appeal is dismissed, and the judgment impugned passed by the appellate Court dated 21.11.2022 is hereby affirmed. 15. Both the parties are directed to appear before the concerned learned trial Court on 22-4-2026. SD/- (Bibhu Datta Guru) Judge Jyoti