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1978 DIGILAW 527 (MP)

Jivaram v. Sughar Singh

1978-07-04

H.G.MISHRA

body1978
Short Note : 1. After trial the suit was decreed. The defendants preferred appeal against the decree and judgment of the trial Court. The learned A.D.J. has allowed the appeal and directed three issues to be framed and tried. They are to the following effect:- "Issue No. 8 - Whether the plaintiffs were granted Patta in Case No. 162 x 162 by Tahsil Morena and are in possession of the suit land under the Patta? 9.(a) Whether after dismissal of the writ petition by this Court there was a Panchayat between the parties in village Gulendra? (b) Whether the defendant Nos. 1 to 11 had obtained possession through Patwari by paying Rs. 1,600/- in accordance with decision of the aforesaid Panchayat? 10. Whether the question of title of the plaintiffs has not been decided by the Board of Revenue or whether the decision of Revenue proceedings operates as res-judicata in the present suit?" 2. So far as issue No. 10 is concerned, the question of title is foreign to the revenue proceedings as held by the Full Bench of this High Court in Ramgopal vs. Chetu, 1976 JLJ 278 . Consequently the decision of the Revenue Board can neither operate as res-judicata nor could the revenue Courts decide the question of title. Therefore, the additional Issue No. 10 as directed to be framed by the learned A.D.J. is wholly unnecessary. So far as Issue Nos. 8 and 9 are concerned, they appear to be necessary for proper decision of the case. These issues were not framed and tried by the trial Court. Therefore, the learned A.D.J. appears to be justified in ordering framing and Trial of these issues. 3. The next contention of the learned counsel for the applicants is that there was no justification for whole-sale remand of the case. The appeal ought to have been keep pending by the learned A.D.J. in his Court and only issue Nos. 8 and 9 should have been remitted for trial and after receipt of findings from the trial Court on Issue Nos. 8 and 9, the learned A.D.J. should have decided the appeal himself. This argument has got great force. In this connection the principles laid down in Mahendra Manilal Nanavati vs. Sushila Mahendra Nanavati, AIR 1965 SC 364 , govern the situation. 8 and 9, the learned A.D.J. should have decided the appeal himself. This argument has got great force. In this connection the principles laid down in Mahendra Manilal Nanavati vs. Sushila Mahendra Nanavati, AIR 1965 SC 364 , govern the situation. Applying these principles the course adopted by the learned A.D.J. in ordering whole sale remand of the case is illegal, and as such the remand order deserves to be set aside. 1976 JLJ 278 and AIR 1965 SC 364 relied on. Revision partly allowed.