Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 32 (PAT)

Most. Sudama Devi v. Himanshu Shekhar

2002-01-08

RADHA MOHAN PRASAD

body2002
Judgment 1. This Misc. Appeal is directed against the judgment in reversal dated 8th April, 1999 passed in Title Appeal No. 89 of 1994 arising out of the judgment and decree passed in Title Suit No. 135 of 1987, by learned Sub-Judge II,Patna. 2. The appellants are the plaintiffs. The suit was filed for declaration of title of the plaintiffs over the suit land fully described in Schedule I of the plaint and non-title of the defendants and further for holding that the sale deed dated 15.10.1986 executed by defendant 1st party in favour of defendant 2nd party is illegal, un-authorised and without any title and that the defendant 2nd party has not acquired any title and their possession over the suit land is that of a trespasser. Further prayer is for passing a decree for recovery of possession and mesne profit and also for permanent injunction restraining the defendants permanently from making any construction over the suit land. 3. Plaintiff-appellants succeeded in getting the decree against the defendants with a direction to defendant no. 3 to deliver vacant possession of the suit land to them within three months, failing which the plaintiffs were held to be entitled to recover the possession of the same through the process of the Court. In appeal vide Title Appeal No. 89 of 1994, 2nd Additional Sessions Judge, Patna held that to meet the end of justice it is necessary to examine the genuineness of the left thumb impression of late Ram Ghulam Mahto on memo of partition (Exhibit-6) between late Judagi Mahto and late Ram Ghulam Mahto. The Court held that the onus lies heavily upon the plaintiffs to firstly and specifically establish that the Exhibit-6 bears thumb impression of both late Judagi Mahto and late Ram Ghulam Mahto. While setting aside the judgment and decree the lower appellate court remanded back to the triai court concerned to afford proper opportunity to the plaintiffs to prove the genuineness of the left thumb impression of late Ram Ghulam Mahto as well on Exhibit-6, with further direction to give its findings on issue nos. 6 to 8 of the suit and pass judgment and decree therein afresh accordingly. The parties were directed to appear before the court-below on 21.6.1999 on which date the court-below was directed to proceed further as per its convenience. 6 to 8 of the suit and pass judgment and decree therein afresh accordingly. The parties were directed to appear before the court-below on 21.6.1999 on which date the court-below was directed to proceed further as per its convenience. As already stated above, the present appeal is directed against the said judgment of the lower appellate court. 4. The appellants have challenged the correctness of the judgment of the lower appellate court on all counts including on the question of non-application of judicial mind to the memorandum of partition (Exhibit-6) and genuineness of L.T.I. of Ram Ghulam Mahto over the same and further reversing the judgment and decree of the trial court without giving any finding on documentary and oral evidence. The appellants have also contended that the lower appellate court committed grave error in remanding the case to the trial court for fresh findings on issue nos. 6 to 8 although genuineness of memo of partition was contained in issue no. 6 only and in respect of the decision of rest two issues there were sufficient independent evidence both documentary and oral available on records supporting the case of the plaintiffs. It is also contended that the lower appellate court remanded the suit for fresh decision on Issue nos. 7 & 8 without setting aside the findings arrived at by the trial court on that after due consideration of both oral and documentary evidence on records in respect of the said two issues. Thus, the appellants in the present Misc. Appeal has, in fact, assailed the validity of the judgment of the lower appellate court on all counts including merit. 5. The question on which the matter has been heard and order has been reserved is as to whether the Misc. Appeal will lie against the impugned judgment or the appellants have remedy in Second Appeal against the same. 6. According to the learned counsel for the appellants the present appeal under Order XLIll is maintainable against the impugned order remanding the case to the trial court. In this regard he referred to the provisions contained in subclause (u) of Order XLIII Rule 1 of the Code of Civil Procedure, hereinafter referred to as the Code, which provides as follows: "1. In this regard he referred to the provisions contained in subclause (u) of Order XLIII Rule 1 of the Code of Civil Procedure, hereinafter referred to as the Code, which provides as follows: "1. Appeal from orders.An appeal shall lie from the following orders under the provisions of section 104, namely:- (a) xx xx xx xx XX XX XX XX (u) an order under rule 23 (or rule 23 A) of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court." It is submitted that the present case is covered by the provisions contained in Rule 23A of Order XLI of the Code as the lower appellate court has disposed of the case otherwise than on preliminary point and after reversing the decree has remitted the matter back to the trial court for fresh consideration. He placed reliance on the decisions reported in A.I.R. 1969 Madras 248 (Kaluvaroya Pillai & ors. V/s. Ganesa Pandithan & ors.), A.I.R. 1983 Calcutta 123 (Smt. Santoshini Bose V/s. Shiv Sankar Das) and A.I.R. 1984 Allahabad 155 [Kirat Singh V/s. Trilok (Tilak) Singh & ors.]. He also contended that the provisions contained in Section 105(2) of the Code also shows that the person aggrieved by an order of remand, if does not file appeal, he shall be precluded from disputing its correctness. 7. I am unable to accept the said submissions of the learned counsel for the appellants. There cannot be any doubt that under Order XLIII Rule 1(u) Misc. Appeal lies where the correctness of an order under Rule 23 or Rule.23A of Order XLI remanding a case where an appeal would lie from the decree of the appellate court is invoked. It is not disputed that Order XLI Rule 23 is not attracted in the present case, as it is not a case where the Court from whose decree an appeal is preferred has disposed of the suit on preliminary point and the decree is reversed in appeal. Rule 23 A, in my opinion, has no application to the facts and circumstances of the present case, as it is not a case where the lower appellate court has considered the necessity of retrial, for which remanded the matter to the trial court. Rule 23 A, in my opinion, has no application to the facts and circumstances of the present case, as it is not a case where the lower appellate court has considered the necessity of retrial, for which remanded the matter to the trial court. The impugned judgment itself would show that the lower appellate court has not disturbed the findings of the trial court in regard to issue nos. 1, 3 to 5, 2, 11 & 12 and 9 & 10, and while setting aside the judgment and decree of the trial court remanded the matter back to the trial court concerned for limited purpose that is to afford opportunity to the plaintiffs to prove the genuineness of the left thumb impression of late Ram Gulam Mahto on Exhibit-6 and give its findings thereafter on issue nos. 6 to 8 and pass judgment and decree therein afresh accordingly. I have already noticed above, the plaintiff-appellants herein have assailed the validity of the judgment of the lower appellate court on all counts including merit. According to the appellants the lower appellate court committed grave error in remanding the case to the trial court for fresh findings on issue nos. 6 to 8 when genuineness of memo of partition is contained in issue no. 6 only, without setting aside the findings of the trial court in respect of the decisions on rest two issues. If this Court is called upon to decide the said question as well which stand concluded by the findings recorded by the trial court, and amounted to a decree with respect to the said findings then the same cannot be considered in Misc. Appeal, as the only remedy against a decree of the lower appellate court is by way of Second Appeal. None of the decisions cited by the learned counsel for the appellants are directly on the issue involved. Even in Madras case the High Court held that where there has been a substitution of the judgment and decree of the appellate court to that of the trial court the only remedy available to the appellants is to file Second Appeal and not to file an appeal under Order XLIII Rule 1 (u). Even in Madras case the High Court held that where there has been a substitution of the judgment and decree of the appellate court to that of the trial court the only remedy available to the appellants is to file Second Appeal and not to file an appeal under Order XLIII Rule 1 (u). In the present case, there has been a substitution in the judgment and decree of the appellate court to that of the trial court, without disturbing the findings of the trial court with regard to issues other than issue no. 6 which relates genuineness of Exhibit-6. 8. Under such circumstances, specially where the appellants have assailed the validity of the judgment of the lower appellate court on all counts, the remedy available to them is by filing Second Appeal. This Misc. Appeal is, thus, not maintainable. However, if the appellants so advised, may convert this Misc. Appeal into Second Appeal and comply the requirements accordingly within four weeks, failing which this appeal shall stand dismissed as not maintainable.