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2004 DIGILAW 597 (JHR)

Sarfudeen Miyan v. Quadir Mian

2004-06-22

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendant-appellant has been preferred against the impugned judgment dated 8.5.2002 passed in Title Appeal No. 61 of 1996 by Shri R.G. Singh Nagesh, Ist Additional District Judge, Latehar whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 2 of 1994 were set aside and the appeal was allowed and the ease was remitted to the trial Court for a fresh decision a further issues having been framed and allowing the party to adduce evidence on that issue only and after hearing the parties to decide the suit a fresh and also to appoint a Survey Knowing Pleader Commissioner for the measurement of Suit Plot No. 505. 2. The plaintiffs-respondent have filed the said title suit for declaration that the plaintiffs are the raiyats of the land mentioned in Schedule-B of the plaint from which no other defendants have any concern and upon the said declaration and also of partition of the suit land exclusively allotting a separate Takhta in favour of the plaintiffs therein. The suit land appertains to Plot No. 505 of Khata No. 3 having an area of 1-1/8 decimals out of 9 decimals situate in village- Karkat, Police Station-Latehar, District-Palamau (Now Latehar). 3. The case of the plaintiffs, in brief, is that Plot No. 505, appertaining to Khata No. 3 having an area of 9 decimals stands recorded in the cadastral survey records of right in the name of Gandauri Mian, Jumman Mian, Wazir Mian and Immamuddin Mian, all sons of Aliyar Mian and the aforesaid recorded raiyats by amicable arrangement between themselves came in separate possession of 1/4th decimals of land along with portion of the house of Plot No. 505 and remained in possession of the same and after their death, their descendants came in possession over the respective lands and in this manner, each set of recorded raiyats got 2-1/4 decimals of land of Plot No. 505. Defendant No. 10 Jamaluddin Mian, son of late Immamuddin Mian deceased aforesaid has orally endowed his entire share i.e. 2-1/4 decimals of Plot No. 505 for construction of Karkat Masjid. Plaintiff No. 1 Quadir Mian and defendant No. 9 Seraj Mian are the sons son of Wazir Mian, the recorded tenants aforesaid. Plaintiff No. 2 Liyakat Mian is the son of plaintiff No. 1 aforesaid. Plaintiff No. 1 Quadir Mian and defendant No. 9 Seraj Mian are the sons son of Wazir Mian, the recorded tenants aforesaid. Plaintiff No. 2 Liyakat Mian is the son of plaintiff No. 1 aforesaid. Similarly, Quadir Mian also orally endowed one decimal out of 1-1/8 decimals of his share in Plot No. 505 for the construction of the said Masjid and a Masjid was built over the same and the same is functioning under the Mutawaliship of defendant No. 2 and subsequently Jamaluddin Mian and Quadir Mian had got a deed of wakf registered in favour of Karkat Masjid through its Mutwali defendant No. 2 Asgar Mian and thus Jamaluddin Mian was left with no share in Plot No. 505 and plaintiff No. 1 was left with only 1/8 decimals share in the said land Defendant No. 9 Seraj Mian aforesaid sold his 1-1/8 decimals of land of his share in Plot No. 505 to defendant No. 1 Saffaruddin Mian through registered sale deed of the year 1988 and thus he was left with no share in the land of Plot No. 505. In the deed of wakf dated 23.9.1992 as well as in the sale deed of 1988 aforesaid three decimals of land each were inadvertently mentioned which was definitely not the share of Jamaluddin Mian and Seraj Mian respectively Jitu Mian, defendant No. 4 Hussain Mian and defendant No. 5 Kamruddin Mian, all sans of Gandauri Mian aforesaid sold 3/4 decimals of land out of their share of 2-1/4 decimals of Plot No. 505 in favour of defendant No. 1 Saffaruddin Mian and thus the share of defendant No. 1 Saffaruddin Mian after purchase is 1-7/8 decimals in Plot No. 505, Plaintiff No. 2 purchased one decimal of land from defendant No. 6 Haidar Mian and defendant No. 7 Rabbani Mian out of 1-1/8 decimals of land of their share and they were left with 1/8 decimals of land of their share in the said plot Defendant No. 8 Nabbu Mian had 1-1/8 decimals as share in the suit plot. The further case of the plaintiff is that defendant No. 1, illegally obtained an order for mutation in his favour for an area of 2-1/4 decimals and his subsequent Mutation Case No. 288 of 1992-93 for mutation in his name for an area of 3/4 decimals of land which he has purchased from Jitu Mian and others, has however, been dismissed and similarly the mutation case filed by the plaintiff No. 2 for his mutation in respect of one decimal of land which he has purchased from defendant Nos. 6 and 7, has also been dismissed. It is alleged that the rejection of mutation case and the denial of title of the plaintiffs by defendant No. 1, has cast a cloud over the title of the plaintiff. Further case of the plaintiff is that the suit Plot No. 505 has not yet been partitioned by metes and bounds between the parties and there is unity of title and possession between them but the defendants being embolded by the order of the Revenue Court are threatening the plaintiffs to dispossess them from the land of their share in the suit land. 4. The case of the defendant, inter alia, is that there was partition by metes and bounds between all the four recorded raiyats within ten years of the cadastral survey and Plot No. 505, on which there was a house in its entirety was allotted to the share of Wazir Mian and Immamuddin Mian only whereas contiguous Plot No. 504. having a house there on in its entirety was allotted to Gandauri Mian and Jumman Mian and they all accordingly continued in separate possession till their death and thereafter Jamaluddin Mian and Quadir Mian out of their freewill orally endowed their entire share to Karkat Masjid about 40 years ago and since then Masjid is functioning there. It is alleged that Quadir Mian and Jamaluddin Mian had constructed their houses at different places in which they are residing. It is also alleged that the rest of the portion of Plot No. 505, thus came to be exclusively owned and possessed by defendant No. 9 Seraj Mian, who had sold the same to defendant No. 1, in the year 1988 for valuable consideration and since then, this defendant is in possession thereof as an absolute owner having right, title and interest therein. 5. 5. In view of the pleadings of the parties, the learned trial Court has framed the following issues for adjudication : (i) Is the suit maintainable as framed? (ii) Is the suit barred under the law of limitation and estoppel, waiver and acquiescence? (iii) Is the suit barred under Section 258 and other provision of C.N.T. Act? (iv) Is the suit bad under Section 34, and others provisions of Specific Relief Act. Is the suit barred under Section 80 C.P.C.? (v) Is there any unity of title and possession between the plaintiff and these defendants? (vi) Have the plaintiffs any right, title and possession over the suit land? (vii) Is Court fee paid sufficient? (viii) To what relief or reliefs the plaintiffs are entitled to? 6. In view of the evidence oral and documentary on the record, the trial Court while deciding issue No. (vi) read with the admission of PW 6 Quadir Mian, the plaintiff No. 1 and PW 3 Liyakat Mian, the plaintiff No. 2 has held that there had been already a partition between all the four recorded tenants soon after the cadastral survey and the house standing on Plot No. 505 was allotted to the share of Wazir Mian and Immamuddin Mian and Plot No. 504 having a house therein has been allotted to the share of Gandauri Mian and Jumman Mian and thereafter there had been a partition effected between plaintiff Quadir Mian and defendant No. 9 Seraj Mian and thus Candauri Mian and Jumman Mian and their descendants have no right, title and interest in Plot No. 505 by virtue of the said partition and the sale deed executed by defendant Nos. 6 and 7 i.e. the descendants of Jumman Mian aforesaid in favour of the plaintiff No. 2 is illegal without any right and is a collusive document. 6 and 7 i.e. the descendants of Jumman Mian aforesaid in favour of the plaintiff No. 2 is illegal without any right and is a collusive document. It has further been held that Masjid is in existence over 6 and 7 decimals of land of Plot No. 505 for more than 40 years of the suit and DW 5 Chandrika Tewari the Amin who has measured the house in presence of the Circle Officer, has found only one house over an area of 2-1/4 decimals in Plot No. 505 and the rest entire portion of this plot contains Masjid and the defendant No. 1, has purchased the said house which was in the share of defendant No. 9 Seraj Mian on partition and the defendant No. 1. is in possession over the said house residing therein. The learned trial Court has further held that the plaintiffs cannot have any subsisting right title and interest in the suit land as claimed and the plaintiffs having his house over the suit land is bigmyth contrary to his pleadings, It has also been held that there is no unity of title arid possession between the parties and the suit for ascertainment for share and reopening of partition and that also for a fractional portion of the land of Khata No. 3 is not maintainable and it is barred by the law of limitation and bad for estoppel and waiver. In view of the findings aforesaid, the learned trial Court dismissed the suit. 7. In view of the findings aforesaid, the learned trial Court dismissed the suit. 7. Being aggrieved and dissatisfied with the judgment of the trial Court, the plaintiff preferred Title Appeal No. 61 of 1996 and the learned appellate Court below on reappraisal and re-appreciation of the evidence on the record has set aside the judgment of the trial Court and allowed the appeal and remitted the suit to the trial Court for a fresh decision and framed an issue for a decision of the trial Court with a direction that the learned trial Court shall appoint a survey knowing pleader commissioner for the measurement of the suit Plot No. 505 to ascertain the area of each of the construction standing over the suit Plot No. 505 and also to ascertain the area of vacant portion of the suit plot, if any, and thereafter the trial Court shall allow parties to adduce evidence on those issues so formulated and after hearing the parties shall decide the suit afresh. 8. It has been submitted by the learned counsel for the defendant-appellant that the impugned order of remand is erroneous and it is not within Rules 23, 23-A and 25 of Order XLI of the Code of Civil Procedure and the learned appellate Court below has also not recorded a finding that the re-trial of the suit is necessary while reversing the judgment of the trial Court. It has further been submitted that it is the settled proposition of law of remand that whenever it is found for something which is vital and not been decided by the trial Court and same cannot be decided by the appellate Court because of lack of proper materials on record then only remand can be made. It has further been submitted that it is the settled proposition of law of remand that whenever it is found for something which is vital and not been decided by the trial Court and same cannot be decided by the appellate Court because of lack of proper materials on record then only remand can be made. It has further been submitted that here in this case, the learned appellate Court below has framed an issue for adjudication by the trial Court and has remitted the case to the trial Court but the learned trial Court has not acted upon in accordance with the Rule 25, of Order XLI, of the Code of Civil Procedure which provides that in a case when an order of remand passed under Rule 25 of Order XLI of the Code of Civil Procedure it retains with it the appeal itself and remit the matter to the trial Court for a limited purpose and in this view of the matter, the learned appellate Court below has also not exercised his jurisdiction under Rule 25 of Order XLI of the Code of Civil Procedure and in such a situation, the learned appellate Court below ought to have exercised the powers under Rule 27, of Order XLI of the Code of Civil Procedure. In support of his contention reliance has been placed upon the ratio of the cases of Awadhesh Kumar Mishra and Ors. v. Sona Devi and Ors., 2003 (4) PLJR 810 , and Ashwinkumar K. Patel v. Upendra J. Patel and Ors., AIR 1999 SC 1125 , and thus the remand order is bad and unsustainable. 9. In contra, it has been submitted by the learned counsel for the plaintiff- respondent that the learned appellate Court below has jurisdiction to remand the case in view of the factual error appearing in the judgment of the trial Court coupled with the fact that the claim of more share to defendant No. 1 in the suit plot was not sustainable as per the evidence on the record. It has also been submitted that the judgment of the trial Court was vague regarding the area of suit Plot No. 505 claimed by the parties as per the alleged partition and thus, there is no illegality in the impugned order of remand. 10. It has also been submitted that the judgment of the trial Court was vague regarding the area of suit Plot No. 505 claimed by the parties as per the alleged partition and thus, there is no illegality in the impugned order of remand. 10. It is relevant to mention at the very outset that a Court of appeal has a power to remand a case only under Rule 23, Rule 23-A and Rule 25 of Order XLI of the Code of Civil Procedure. Rule 23 and Rule 23-A have no application in the context of this case. All the cases of wholesale remand are covered by Rule 23 and Rule 23-A, aforesaid. It is equally pertinent to mention at this stage that the operative portion of the impugned judgment does not show that the learned appellate Court below has held that the re-trial of the suit is necessary. The learned trial Court has decided all the issues against the plaintiffs but the learned appellate Court below has not reversed all the findings of the learned trial Court, rather, the learned appellate Court below has framed a further issue and remitted the suit for a fresh decision. For the sake of clarity, I quote the relevant paragraph Nos. 14 and 15 of the impugned judgment which runs thus : "14. Therefore, it is ordered that the case is remanded back to the Court of Munsif for fresh decision. The learned Munsif shall frame the issues in the following manner. 15. Whether, plaintiff-appellant No. 1 and respondent No. 12 the grand sons of recorded Wazir Mian had share in the suit Plot No. 505 and to what extent and whether there was any partition between plaintiff-appellant No. 1 and respondent No. 12. The learned Munsif shall appoint a survey knowing pleader commissioner for the measurement of suit Plot No. 505, either on the cost of the plaintiff- appellants or of both the parties to ascertain the area of each of the constructions standing over the suit Plot No. 505 and also to ascertain area of vacant portion of the suit plot if any. Thereafter the learned Munsif shall allow parties to adduce evidence on these issues only and after hearing the parties, shall decide the suit a fresh with these observations, the case is remanded back to the learned lower Court for fresh decision." It appears that the learned appellate Court below has exercised its power of remand under Rule 25 of Order XLI of the Code of Civil Procedure but it has not followed the mandates contained therein. For proper appreciation, I quote Rule 25 of Order XLI which runs thus : "25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.--Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required: and such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons, therefore, within such time as may be fixed by the appellate Court or extended by it from time to time." In terms of Rule 25 aforesaid, the Court of appeal below has jurisdiction to remand a case only where it is held that the trial Court has omitted to frame or try any issue or to determine any question of fact which according to the appellate Court is essential for the right decision of the suit. In such an event, the appellate Court may frame issue or issues and refer the same for the trial to the Court from whose decree the appeal is preferred. In a case where the appellate Court exercises its power under Rule 25 aforesaid it must keep in mind that the suit for determination of such issue or issues only which have been framed by the appellate Court are to be decided by, the trial Court and record its findings in respect thereof and thereupon the trial Court is required to return the evidence to the appellate Court together with its findings thereon and the reasons therefor. Thereafter the appellate Court, on receipt of the evidence recorded by the trial Court and the reasons recorded by it, is required to proceed with the appeal and pass a judgment in accordance with the law. It is, therefore, evident that in a case where the order of remand is passed under Rule 25 aforesaid it retains with it the appeal itself and remit the matter to the trial Court for a limited purpose. Therefore, the learned appellate Court below has also not exercised the jurisdiction under Rule 25 of Order XLI of the Code of Civil Procedure in this case. It is equally pertinent to mention here that the learned appellate Court below has also not properly construed and considered the admission of both the plaintiffs regarding the previous partition between the parties in respect of the land of Khata No. 3 and the factum of subsequent partition between the plaintiff No. 1 Quadir Mian and his brother Seraj Mian. Taking all aspects of the matter into consideration, the impugned judgment remitting the appeal before the trial Court for a fresh decision cannot be sustained. 11. In the result, this appeal is allowed and the impugned judgment is set aside and the learned Court of appeal below is directed to apply its mind afresh and pass a judgment in accordance with law. 12. It is made clear that in the event, the learned Court of appeal below comes to the conclusion that in the interest of the justice some issues are required to be framed, it would be open to it to frame those issues and pass an order of remand strictly in terms of Rule 25 of Order XLI of the Code of Civil Procedure. 13. As the matter has been pending for a long time, the learned Court of appeal below shall take up the hearing of the appeal as early as possible. 14. In the facts and circumstances of the case, there shall be no order as to cost.