Fakeer Bux v. Saira Begum — 1969 DIGILAW 304 (ALL)

JUDGMENT V.G. Oak, C.J. - This is a first appeal from an order. This appeal arises out of a suit for possession and 'mesne profits. Smt. Saira Begum filed a suit against Fakir Bux on the allegations that the plaintiff is the owner of a certain house, and the defendant was in possession without any right. The Plaintiff, therefore, claimed defendant's ejectment and mesne profits at the rate of Rs. 10/- p. m. The plaintiff claim was resisted by the defendant. He claimed to be the owner of the house of in dispute. He also pleaded that the suit was barred by limitation. The trial court accepted the plaintiff's claim, and decreed the suit for possession and Rs. 376/- as mesne profits till the date of the suit. Pendente lite and future mesne profits were also awarded at the rate of Rs.. 10/- per month. 2. Fakir Bux defendant appealed against the decree of the trial court. The appeal was partly allowed by the Additional Civil Judge, Allahabad. The decree for possession after the defendant's ejectment was affirmed. But the decree for damages was set aside. The suit was remanded to the trial court for reconsideration of the question of mesne profits. Fakir Bux defendant has appealed against the order dated 22-4-1965 passed by the Additional Civil Judge, Allahabad. 3. Mr. Brij Lal Gupta, appearing for plaintiff-respondent raised a preliminary objection that the grounds raised by the appellant in the present appeal are outside the scope of the first appeal from order. It was pointed out that, although the appeal purports to be under Section 104 read with order 43, Rule 1, C. P. C., the appellant is seeking to avoid the decree for possession. 4. In order to appreciate this preliminary objection, it is necessary to examine the nature of the impugned decision of the Additional Civil Judge, Allahabad The first question considered by the Civil Judge was as regards, plaintiff's title to the house. In paragraph 10 of his judgment the learned Civil Judge held that the plaintiff was the owner of the property in dispute. The next question considered by the lower appellate court was about limitation. In paragraph 16 of the Judgment the Court held that the suit was not barred by limitation. Lastly, the Court took up the question of damages. In paragraph 10 of his judgment the learned Civil Judge held that the plaintiff was the owner of the property in dispute. The next question considered by the lower appellate court was about limitation. In paragraph 16 of the Judgment the Court held that the suit was not barred by limitation. Lastly, the Court took up the question of damages. The learned Civil Judge found that the question of damages had not been properly disposed of by the trial court. The learned Civil Judge, there. fore, passed an order partly allowing the appeal. The operative, part of the judgment, dated, 22-4-1965 is as follows:- "The appeal is partly allowed. The findings of the learned Munsif on the point of title and adverse possession are confirmed and the suit will remain decreed for possession after the ejectment of the defendant. But the decree as regards damages is set aside and the suit is remanded with the directions that the learned trial court shall frame an issue on the point of mesne profits, permit the parties to lead evidence only on that issue, and then decide this question afresh. The respondent will get her costs of this appeal. The parties shall appear before the learned trial court on 22-5-1965 or the next opening day if the said date falls on a holiday." 5. It will be seen that the operative part of the judgment consists of three parts. In the first paragraph the learned Civil Judge confirmed the decree for possession after defendant's ejectment. In the second paragraph the case was remanded to the trial court for reconsidering the question of mesne profits. The third paragraph is incidental to the remand order. 6. The appellant has raised twelve grounds in the memorandum of appeal. These grounds are directed to the question whether the title vests in the plaintiff or in the defendant. Mr. Brij Lal Gupta urged that in an appeal from a remand order the appellant is not entitled to challenge the decree for possession. On the other hand, Mr. K. C. Saxena appearing for the defendant-appellant contended that in an appeal from an order of remand, the appellant may raise all the questions which arose in the suit. 7. Mr. K. C. Saxena relied upon a Full Bench, decision of the Allahabad High Court in Badam v. Imrat, 3 ILR Alld. 675. On the other hand, Mr. K. C. Saxena appearing for the defendant-appellant contended that in an appeal from an order of remand, the appellant may raise all the questions which arose in the suit. 7. Mr. K. C. Saxena relied upon a Full Bench, decision of the Allahabad High Court in Badam v. Imrat, 3 ILR Alld. 675. In that case the trial court dismissed the plaintiff claim on the grounds of limitation. This finding was reversed by the lower appellate court. The case was remanded to the trial court. The order of remand was challenged by the defendant by filing an appeal in the High Court. It was held that an appeal from an order remanding a suit for retrial is not to be confined to the question whether the remand has been made contrary to the provisions of Section 562 of Act No. 10 of 1877 or not, but the question whether the decision of the trial court on the preliminary point is correct or not, may also be raised and determined in such an appeal. All that was decided by the High Court was that the question of limitation could be agitated before the High Court in the appeal against the remand order. It will be noticed that neither the trial court nor the lower appellate court had disposed of the plaintiff's claim on merits in that case. 8. Bhau Bala v. Bapaji Bapuji, 14 ILR Bom 14 is a decision of a Full Bench of Bombay High Court. The facts were similar to those in the Full Bench decision of Allahabad High Court. It was held by the Full Bench of Bombay High Court that in an appeal against an order of remand the power of the High Court is not confined to the question whether or not the order satisfies the requirements of Section 562, C. P. C. The High Court may determine the correctness of the lower appellate court's decision on a preliminary point on which the court of first instance disposed of the case. 9. In Shiromani Gurdwara Prabandhak Committee v. Raja Shiv Ratan Deo Singh, A.I.R. 1955 SC 576 the High Court after passing a final order remanded the case to the trial court for proceeding in accordance with law. 9. In Shiromani Gurdwara Prabandhak Committee v. Raja Shiv Ratan Deo Singh, A.I.R. 1955 SC 576 the High Court after passing a final order remanded the case to the trial court for proceeding in accordance with law. It was held by the Supreme Court that the decision of the High Court could not be said to be conclusive so as to prevent the Supreme Court from dealing with the appeal and setting aside or modifying the judgment of the High Court and making a fresh order of remand to that court itself. 10. In 'Vishwanath v. Yuvaraj Kumar, A.I.R. 1933 Oudh 191' it was held that an appeal against an order of remand should be filed as a miscellaneous appeal, and not as a second appeal. It appears that in that case the District Judge merely passed a remand order, and did not pass any decree. 11. In 'Basheshar Das v. Diwan Chand, A.I.R. 1933 Lahore 615' it was held that an appeal is competent from an order remanding a case even though the whole of the remand order is not challenged, but only certain findings which have gone against the appellant. In the present case also it is not the respondent's contention that the appeal is altogether incompetent. The respondent merely urges that the appellant cannot seek to avoid the decree for possession. 12. In Sayid Muzhar Hossein v. Mst. Bodha Bibi, 17 ILR Alld. 112 there was a suit based on a certain will. The plaintiff's claim was repelled by the trial court. Other issues were left untried. The decision on the question of title was reversed by the High Court. The case was remanded to the trial court for trying other issues. The plaintiff sought permission to appeal to the Privy Council. It was held by the Judicial Committee that the plaintiff was entitled to obtain a certificate. It was observed on page 116 :- "However, this may be, the question is whether the decree of the High Court is final. It appears to their lordships that it is final." Those observations of the Judicial Committee clearly indicate that, although the High Court passed a remand order the High Court also passed a decree which was final so far as the High Court was concerned. 13. In Sheolal Balmukund v. Jugal Kishore, A.I.R. 1940 Nag. It appears to their lordships that it is final." Those observations of the Judicial Committee clearly indicate that, although the High Court passed a remand order the High Court also passed a decree which was final so far as the High Court was concerned. 13. In Sheolal Balmukund v. Jugal Kishore, A.I.R. 1940 Nag. 349 it was held that where the decision of the lower appellate court has conclusively determined so far as that court is concerned, some at least of the cardinal issues in the suit, and has remanded the case for new trial, the decision amounts to a decree within the meaning of Section 2 (2) , C. P. C., and is appealable. 14. In Har Prasad v. Chadami, A.I.R. 1928 Nag. 68 it was held that where the adjudication as embodied in the remanding judgment clearly adjudicates the right of the parties in regard to certain matters in controversy between them it has all the fours of i decree, and is appealable as such. 15. We have already quoted the operative, part of the judgment of the Additional Civil Judge, dated, 22-4-1965. It has been pointed out that in the first paragraph of the operative part of the judgment the decree for possession passed by the trial court was confirmed. In the second paragraph of the operative part of the judgment the Civil Judge remanded the case to the trial court on the question of mesne profits. It appears to us that the lower appellate court passed a combined decree for possession and a remand order on the question of mesne profits. The defendant is entitled to appeal against the remand order. But in such an appeal the defendant is not entitled to challenge the decree for possession. The proper way to challenge the decree for possession is to file a second appeal against the decree. Mr. Brij Lal Gupta is right in his contention that in the present appeal against the order of remand, the appellant cannot challenge the decree for possession. 16. Mr. K. C. Saxena suggests that the appellant may be permitted to convert the first appeal from order into a second appeal by paying the necessary court fee on the memorandum of appeal. We grant the appellant three weeks' time to move the necessary application for amendment. Put up on 4-11-969 for further orders.