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2003 DIGILAW 1056 (PAT)

Awadhesh Kumar Mishra v. Sona Devi

2003-09-25

P.K.DEB

body2003
Judgment 1. This appeal has been preferred Under Order-43 Rule-1(u) C.P.C. against the order of remand dated 22.4.2002 passed by 4th Additional District Judge Siwan, in Title Appeal No. 19/92. The appeal was preferred against the Judgment and Decree passed in Title Suit No. 154/87 by Munsif-IV, Siwan, dated 30.4.92 whereby the suit for partition was decred in respect of the Scheduled lands. 2. The grievance of the plaintiffs-appellants were that in Schedule-G (or Gaa) land they have got absolute right, title and interest as the same was self acquired property and hence the same can not be construed to be joint family property for the purpose of joint family partition. Several documents have been filed and oral evidence has been adduced but then the suit had been decreed. 3. The other female heirs were also made parties in the suit. They have also filed written statement wherein defendant respondent Vidyawati Devi filed written statement stating that Phoolmati Devi and Panna Devi alongwith she herself had relinquished their right, title and interest over the ancestral property in favour of the, plaintiffs. This has also been quoted by the Appellate court in Paragraph-9 of the impugned Judgment. 4. The vital issue in the suit was framed as to whether Schedule-G (Gaa) property the plaintiffs and the defendants have got half and half share and whether the defendants had absolute right, title and interest in that schedule and that issue had been decided in favour of the plaintiffs. 5. Now, very peculiarly the Appellate court had practically broken, the issue in two issues; (i) whether the Schedule-G (Gaa) land was self acquired property of the defendants appellants & (ii) whether Schedule-G (Gaa) property was purchased from the joint family income and both the parties have got half and half share in Schedule-G (Gaa) property. Both the issues which have been framed by the Appellate court in Paragraph-14 of the impugned Judgment are the amalgamated issue framed by the trial court in the suit which was a vital issue in the suit itself as already stated above. Practically, the issues framed by the Appellate court are redundant and superfluous only which is a device to remand the case and not to decide the appeal on merit. Practically, the issues framed by the Appellate court are redundant and superfluous only which is a device to remand the case and not to decide the appeal on merit. The third issue framed by the appellate court regarding the shares of Defendant No. 8 Vidyawanti Devi and her sisters is not issue at all as per the observation made by the Appellate court in Paragraph-9 of the impugned Judgment as already mentioned above. 6. It is the cardinal principle of remand that whenever it is found for something which is vital had not been decided by the trial court and the same can not be decided by the Appellate court because of lack of proper materials on record, then only remand can be made. But the present appeal does not conform to any of the provisions of Order-41, Rules 23 to 26 C.P.C. Rather provision of Order-41, Rule 24 C.P.C. is applicable in the present case when it is admitted that there is already oral evidence and documents filed by the parties in the case, then it is incumbent on the Appellate court to decide the appeal on merit. The Judgment of the Appellate court only disclosed the shirking mentality of the Appellate court in deciding the appeal on merit. 7. In this view of the matter, this appeal is allowed and the impugned remand order is set aside and the Title Appeal No. 19/92 is remanded to the court of 4th Additional District Judge, Siwan, to decide the appeal on merit after giving an opportunity of hearing to the learned counsel for both the parties within a period of three months positively from the date of filing of a copy of this order by either of the parties or being received officially through Court. There will be no order as to costs.