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2004 DIGILAW 161 (ORI)

Mahadev Bisi v. Niranjan Bisi

2004-03-19

M.M.DAS

body2004
JUDGMENT M. M. DAS, J. — The plaintiffs in a suit for declaration of right, title, interest and confirmation of possession over the suit land, have preferred this appeal against the judgment passed by the learned lower Appellate Court remanding the case to the trial Court to decide the suit afresh. 2. The appellant-plaintiffs filed Title Suit No. 43 of 1993 before the learned Civil Judge (Senior Division), Sonepur for declaration of their right, title, interest and confirmation of possession over the suit land described as “Ata Sadharana”, plot No. 448/662, having an area of Ac. 0.852 decimals in Khata No. 94/23 of Mouza Baghia, P.S. Tarava, under Sonepur Tahasil, in the district of Sonepur. 3. It is admitted case of the parties that one Paramananda Mishra being the owner of Ac. 10.00 acres of land including plot No. 448 executed four sale deeds on 3.3.1981 in favour of the plaintiffs, the brother of plaintiff Nos. 2 and 3, the defendant and the brother of the defendant, transferring equal parts marked ‘A’, ‘B’, ‘C’ and ‘D’ in the sketch maps attached to the respec¬tive sale deeds. 4. It is the case of the plaintiffs that they purchased the northern part of the said plot No. 448 marked ‘A’ in the sketch map and the defendant purchased southern part marked ‘C’ in the sketch map. In mutation case filed by both the parties, the portion marked ‘A’ and numbered as plot No.448/662 has been recorded in the name of the defendant and the defendant’s pur¬chased land numbered as 448/667 has been recorded in the name of the plaintiffs wrongly, in the mutation case. 5. The defendant while admitting the sketch maps attached to the sale deeds to be correct, denied the allegation that wrong recording has been made in the mutation case. 6. The learned trial Court after framing the issues and hearing the suit, decreed the same in favour of the plaintiffs by declaring their right, title, interest and possession over the suit proper¬ty. 7. The defendant-respondent challenged the said judgment and decree in Title Appeal No. 9 of 1995, which was ultimately heard by the learned Civil Judge (Senior Division), Sonepur. The learned trial Court after framing the issues and hearing the suit, decreed the same in favour of the plaintiffs by declaring their right, title, interest and possession over the suit proper¬ty. 7. The defendant-respondent challenged the said judgment and decree in Title Appeal No. 9 of 1995, which was ultimately heard by the learned Civil Judge (Senior Division), Sonepur. The learned lower Appellate Court after hearing the parties, while finding that the plaintiffs are in possession on the northern portion of plot No. 448 which is the portion marked ‘A’ in the sale deed of the plaintiffs (Ext.I), held that the evidence is lacking to prove that the portion marked ‘A’ of plot No. 448 has been assigned plot No. 448/662. On the above finding, the learned appellate Court came to the conclusion that it is essential to give a finding as to whether marked ‘A’ portion of plot No. 448 shown in the sketch map attached to the sale deed (Ext.I) corre¬sponds to plot No. 448/662. As this question has not been specifi¬cally answered by the learned trial Court and there is lack of sufficient material to answer the said question, while setting aside the judgment and decree of the learned trial Court, the learned lower appellate Court framed in issue i.e., “whether the suit land i.e. plot No. 448/662 corresponds to marked ‘A’ portion of plot No. 448 as shown in the sketch map attached to the sale deed executed in favour of the plaintiffs ?” and remanded the suit to the learned trial Court allowing both the parties to adduce evidence, if any, on this particular issue only and decide the suit afresh. 8. Mr. A. K. Rath, learned Advocate for the appellants submitted that the impugned judgment, remanding the entire litigation for fresh determination is contrary to the provisions of Order 41 Rules 23, 23(A) and 25 of the Civil Procedure Code and the learned lower appellate Court could not have also remand¬ed the entire case for fresh disposal by exercising its inherent power under Section 151 of the C.P.C. Mr. Mishra, learned counsel for the respondent, on the other hand, supported the impugned judgment and submitted that the learned lower appellate Court having found that there is no finding nor any material with regard to the fact that the portion of the land purchased by the plaintiffs-appellants marked ‘A’ in the sketch map attached to the sale deed (Ext.1), has been numbered as plot No. 448/662, the Court below is right in remanding the matter to the learned trial Court by framing an issue to that effect. 9. A reading of Rules 23, 23(A) and 25 of Order 41 of the C.P.C. shows that under Rule 23, when a suit has been disposed of on a preliminary point and the decree is reversed in appeal, the learned appellate Court, if it thinks fit, may remand the case in its entirely for fresh disposal on other issue by re-admitting the suit under Rule 23A, when an appeal is preferred from a decree by which the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in appeal and retri¬al is considered necessary, the appellate Court may remand the whole suit for fresh disposal. However, under Rule 25, when the trial Court omits to frame or try any issue, or determine any question of fact, which appears to the appellate court essential for the right decision of the suit, the appellate Court, if necessary, can frame issues and refer the same for trial to the original Court and in such case the appellate Court shall direct such Court to take additional evidence, as required. On such remand, the trial Court shall proceed to try such issue and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor, within such time as may be fixed by the appellate Court or extended by it from time to time. 10. Thus, in view of the above provisions of the Code of Civil Procedure and on examining the impugned judgment, I find that the learned appellate Court was in error in remanding the suit in its entirety for fresh disposal though a specific issue has been framed by the lower appellate Court, as it felt neces¬sary that such issue is required to be determined for the right decision of the suit. Such procedure is not prescribed under any of the aforementioned rules. 11. Such procedure is not prescribed under any of the aforementioned rules. 11. Thus even though no appeal can be preferred against an order of remand under Rule 25 of Order 41 of the C.P.C. but since the impugned judgment is not strictly in accordance with Rule 25, I am inclined to entertain this appeal. 12. On hearing the parties and on consideration of the materials available on record, I find that the learned lower appellate Court was correct in holding that it is necessary to find out whether the suit plot No. 448/662 corresponds to the portion of plot No. 448 marked ‘A’ in the sketch map attached to the sale deed (Ext.1) and accordingly, has framed an issue to that effect but the said Court has committed an error of law in re¬manding the entire suit to the trial Court for fresh disposal. 13. I am, therefore, of the view that the order of remand, impugned in this appeal, should be treated as an order under Rule 25 of Order 41 of the C.P.C. I therefore direct that the appeal be retained in the learned lower appellate Court and the learned trial Court should try the issue framed by the learned lower appellate Court in the impugned judgment, by giving opportunity to the parties to adduce evidence on the said issue and return its finding thereon and the reasons therefor, to the lower appellate Court. After receiving the evidence so adduced, if any, by the parties and the findings of the learned trial Court, the learned lower appellate Court should hear the appeal and give a fresh judgment. This exercise should be completed within a period of six months from the date of receipt of this order by the trial Court and the appeal be disposed of within three months from the date of receipt of the evidence and findings of the trial Court, by the lower appellate Court. The parties are directed to appear before the learned trial Court on 21st April 2004. 14. With the above modification in the impugned judgment, this appeal is partly allowed and in the circumstances without cost. The L.C.R. be sent back forthwith. Appeal partly allowed.