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1972 DIGILAW 254 (ORI)

BANTHU KISAN v. DUKHI KISANI

1972-11-08

B.K.RAY

body1972
JUDGMENT : B.K. Ray, J. - The sole Defendant in the suit out of which this appeal arises is the Petitioner. 2. The Plaintiffs instituted the suit for declaration of their title and recovery of possession of the suit lands described in schedules Band C of the plaint and for redemption in respect of the B schedule land. According to them, those lands belonged to Mst. Kuli, their mother who inherited them from her husband Budhu Kisan (father of the Plaintiffs). These lands were recorded in the name or Mst. Kuli in the Hamid Settlement. According to the plaint Mst. Kuli before her marriage to Budhu Kisan had a daughter Mst. Michoo through her previous husband Kanho after whose death she married Budhu Kisan according to caste custom. After the death of Mst. Kuli, according to the Plaintiff, they inherited the suit lands. It is further alleged in the plaint that during Hamid Settlement, Mst. Kuli had mortgaged the B schedule land with the Defendant's father for Rs. 40/- and the said mortgage stands noted in the record-of-rights. Since this mortgage, Defendant's father remained in possession of the land mortgaged and after his death, the Defendant possessed the same as a mortgagee. Regarding the C schedule land, the plaint case is that Mst. Kuli was in possession thereof till her death where after the Plaintiffs came to possess the same. The Defendant for the first time created trouble in the Plaintiffs' possession over the C schedule land and ultimately dispossessed them a year before the suit. Hence, the Plaintiffs filed the suit for the aforesaid reliefs. 3. The defence plea is that Budhu Kisan, father of the Plaintiffs was a Kisan by caste and belonged to a Scheduled Tribe, and therefore, the Plaintiffs are not governed by the Hindu Law. Mst. Kuli first married Kanho and through him, a daughter, viz., Mst. Michoo was born. Mst. Kuli's subsequent marriage to Budhu Kisan is denied, and hence, t e Plaintiff's right to succeed as daughters of Budhu is denied. It is further alleged that the suit lands belonged to Kanho and not to Budhu. After Kanho's death, Mst. Kuli, his wife, came to possess the same and on her death in the year 1927, her daughter, viz., Mst. Michoo through Kanho succeeded to the suit lands. Mst. It is further alleged that the suit lands belonged to Kanho and not to Budhu. After Kanho's death, Mst. Kuli, his wife, came to possess the same and on her death in the year 1927, her daughter, viz., Mst. Michoo through Kanho succeeded to the suit lands. Mst. Kuli, while in possession had mortgaged the B schedule land to the Defendant who possessed the same on the strength of the mortgage. After Kuli's death, Mst. Michoo could not redeem the mortgage, and to satisfy the mortgage dues she surrendered the entire lands in favour of the Defendant on 3-12-1940 by executing a document. Since this date, the Defendant is in possession of the entire suit lands in his own right. The Defendant alternatively claims title to the suit lands by adverse possession. 4. The trial Court dismissed the Plaintiffs' suit on a finding that the suit lands belonged to Kanho, first husband of Mst. Kuli; that on the death of Kanho and Mst. Kuli, Mist. Michoo succeded to them and that the Plaintiffs never had any right, title or interest to the lands in suit. It further found that the Defendant had perfected his title by adverse possession. It, however, negatived the defence contention that Mst. Kuli was not the legally married wife of Budhu and that the Plaintiffs are not born out of lawful wedlock between Budhu and Mst. Kuli. The lower appellate Court in the appeal filed by the Plaintiffs set aside the findings of the trial Court and held that the suit properties were the Stridhan properties of Mst. Kuli, and therefore, on the death of Kuli, her daughter, viz., the Plaintiffs as well as Mst. Michoo would be entitled to inherit them according to the Hindu law. It further held that since the properties were the Stridhan properties of Mst. Kuli, the same would pass in the following order, viz., (1) unmarried daughter, (2) married daughter who is un provided for and (3) married daughter who is provided for. It also found that the Plaintiffs as well as Mst. Michoo were all the daughters of Mst. Kuli, Mst. Michoo through Kanho, and the Plaintiffs through the second husband Budhu. In view of these findings, the lower Appellant Court remanded the Case to the trial Court for fresh disposal. It is against his order of remand, the Defendant has filed this civil revision. 4. According to Mr. Michoo were all the daughters of Mst. Kuli, Mst. Michoo through Kanho, and the Plaintiffs through the second husband Budhu. In view of these findings, the lower Appellant Court remanded the Case to the trial Court for fresh disposal. It is against his order of remand, the Defendant has filed this civil revision. 4. According to Mr. B.B. Sahu, learned Counsel for Petitioner, the lower appellate Court exercised jurisdiction with material irregularity by making out a third case for the Plaintiffs not made out in their plaint. What he means to say is that the Plaintiffs having come forward with the suit on the plea that the suit properties belonged to their father Budhu, and therefore, on the death of Budhu and of their mother Mst. Kuli, they became entitled to the suit properties as the next heirs, and this plea not having been accepted by the Court below, the suit should have been dismissed. It may be noticed here that the plea taken by the Defendant also in his written statement was not accepted by the Court below. On the evidence led by the parties, the lower appellate Court rightly found that the suit properties were really the Stridhan proprieties of Mst. Kuli. The Court below having confirmed the finding of the trial Court that the Plaintiffs are the daughters of Mst. Kuli through her second husband Budhu, there was no other alternative for it but to say that the suit properties being the Stridhan properties of Mst. Kuli would be inherited in Kuli's death by her three daughters, viz, the Plaintiffs and Mst. Michoo according to the Hindu law. As there was no material before the lower appellate Court as to which of the three daughters of Mst. Kuli would be entitled to inherit the suit properties, the only course left open to it was to remand the case to the trial Court to decide the case on the footing that the suit properties were the Stridhan properties of Mst. Kuli and that the daughters of Mst. Kuli would be entitled to inherit them as provided under the Hindu law. This is what has been done by the Court below. I do not think that the lower appellate Court by remanding the case to the trial Court either exercised jurisdiction which was not vested in it or exercised jurisdiction with material irregularity 6. Kuli would be entitled to inherit them as provided under the Hindu law. This is what has been done by the Court below. I do not think that the lower appellate Court by remanding the case to the trial Court either exercised jurisdiction which was not vested in it or exercised jurisdiction with material irregularity 6. Some controversy, however, has been raised by learned Counsel appearing on both sides as to the maintainability of the civil revision against an order of remand by the lower appellate Court. As per the Code of Civil Procedure, an appellate Court can remand a case to the trial Court exercise of its powers either under Rule 23 or 29 of Order 41. It is also well settled that apart from the powers of revision as provided for in the aforesaid rules, a Court has always the inherent power u/s 151, CPC to remand a case when in the interest of justice it thinks fit to do so. Order 43 Rule 1, CPC provides for an appeal against an order of remand under Order 41 Rule 23, Code of Civil Procedure. There is no provision for appeal in the case of an order of remand either under Order 41 Rule 25 or u/s 151, Code of Civil Procedure. In a case not covered by Order 41 Rule 23, Code of Civil Procedure, a civil revision lies. See Baisnab Padhan Vs. Parma Padhan and Another, & Narahari Mohanti and Others Vs. Ghanashyam Bal and Others. It is further contended by Mr. S.C. Mohapatra, learned Counsel for opposite parties that it is only in case decided where there is material irregularity in exercise of jurisdiction by a Court or where a Court exercises jurisdiction not vested in it a revision (sic). According to him, the present case does not come within the purview of Section 115, CPC inasmuch as, the order of remand does not show that a case has been decided. I do not agree with this contention of Mr. Mohapatra, because by the words 'case decided' are not meant 'case finally decided'. There are many interlocutory matters decided by a Court which have been taken to be instances of 'case decided' and in such matters, civil revisions have been entertained. I do not agree with this contention of Mr. Mohapatra, because by the words 'case decided' are not meant 'case finally decided'. There are many interlocutory matters decided by a Court which have been taken to be instances of 'case decided' and in such matters, civil revisions have been entertained. Therefore, while holding that this revision application is maintainable against the impugned order of remand, I would not interfere with the said order as it does not appear tome that the lower appellate Court has exercised jurisdiction not vested in it or exercised jurisdiction with material irregularity. 7. In this view, therefore, this civil revision fails and is accordingly dismissed with costs.