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2004 DIGILAW 682 (JHR)

Sk. Nayeem @ Md. Nayeemuddin v. Sk. Abdul Hamid

2004-07-07

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendants-appellant has been preferred against the impugned judgment and decree dated 27.1.2003 and 31.3.2000/22.4.2000 respectively passed in Title Appeal No. 10 of 2000/9 of 2002 by N. Mishra, 1st Additional District Judge. Godda whereby and whereunder the judgment and decree of the tried Court passed in Title Partition Suit, No. 13 of 1999 were set aside and the appeal was allowed and the case was remitted to the trial Court under Order XLI, Rule 23-A of the Code of Civil Procedure for the re-trial of the whole suit by setting fresh issues on giving opportunity to the parties to adduce evidence. 2. The plaintiffs-respondent had filed the said suit for partition of the suit property detailed in Schedule-A of the plaint claiming 10 annas share; therein by carving out their separate takhata through the process of the Court and delivery of possession in respect thereof. 3. The case of the plaintiffs-respondent, in brief, is that the suit land detailed in the schedule of the plaint stands recorded in the name of Sk. Rahman in the cadastral survey records of right. Said, Sk. Rahman died issueless leaving behind his widow Bibi Mangli besides his widow mother Bibi Nashiba and a step-sister Bibi Bashiran and they succeeded the suit property as per their respective shares under the Muslim Law i.e. his mother and step-sister each inherited 6 annas share and his widow inherited 4 annas share therein and they were in separate cultivating possession over the land in suit. It is alleged that Bibi Nashiba and Bibi Mangli remained joint cultivating 10 annas share in the suit land. Bibi Mangli also died issueless and as she was Jointly living with Bibi Nashiba, her mother-in- law, the said Bibi Nashiba inherited the entire land i.e. 10 annas share and the suit land remained in her cultivating possession till her death in the year 1982. The case of the plaintiffs- respondent is that after the death of Bibi Nashiba. the plaintiff-respondent being the son of the brother of Bibi Nashiba succeeded the said 10 annas property as per the Muslim Law and came in cultivating possession over the same, but the defendants being the descendants of Bibi Bashiran aforesaid began to create some disputes in respect thereof, which Jed to a proceeding under Section. the plaintiff-respondent being the son of the brother of Bibi Nashiba succeeded the said 10 annas property as per the Muslim Law and came in cultivating possession over the same, but the defendants being the descendants of Bibi Bashiran aforesaid began to create some disputes in respect thereof, which Jed to a proceeding under Section. 144 of the Code of Criminal Procedure which was converted into a proceeding under Section 145 of the Code of Criminal Procedure and a Receiver was appointed during the pendency of the said proceeding which ,ultimately was dropped and the plaintiffs-respondent and the defendants-appellant came in possession of their respective shares. Since there is ill feelings between the parties in absence of metes and bounds partition of the suit land, criminal cases have taken place between them and hence the necessity for the suit. 4. The case of the defendants-appellant, inter alia, is that SK. Kasmali died prior to the cadastral survey leaving behind his widow Nashiba, a son Sk. Rahman and a daughter Bibi Bashiran and all have inherited the properties and Bibi Nashiba had 2 annas share and remaining 14 annas share developed on Sk. Rahman and Bibi Bashlran in the proportion of 2/3rd and 1 /3rd but at the time of cadastral survey Sk. Rahman was minor and as such Bibi Nashiba got his name recorded in the cadastral survey records of right representing all the heirs of Sk Kasmali and thus Sk. Rahman cannot be said to be the sole owner of the suit land. It has specifically been alleged that Bibi Bashiran is the full sister of Sk. Rahman. born of Bibi Nishiba and she was in possession with Sk. Rahman prior to tile cadastral survey and even after the cadastral survey over the suit land. It is alleged that Bibi Mangli died issueless in the lifetime of Sk. Rahman and the entire suit land was in possession of Bibi Nashiba and Bibi Bashiran, who were all along joint. It is also alleged that Bibi Nashiba is not the daughter of Sk. Laskari the predecessor- in-interest of the plaintiffs-respondent rather, she is the daughter of Asgari. It is alleged that Asgari died much prior to the cadastral survey leaving behind the widow Bibi Hamida and a daughter Bibi Nasiba only and therafter Bibi Hamida re- solemnized her marriage with Laskari. Laskari the predecessor- in-interest of the plaintiffs-respondent rather, she is the daughter of Asgari. It is alleged that Asgari died much prior to the cadastral survey leaving behind the widow Bibi Hamida and a daughter Bibi Nasiba only and therafter Bibi Hamida re- solemnized her marriage with Laskari. It is also alleged that Bibi Hainida also died without having a son or daughter born of Laskari and there after Sk. Laskari aforesaid remarried, from which he had three soils, Sk. Suddi, Sk. BaLtu and Sk. Juman and the plaintiffs are the descendants of Sk. Suddi, Sk. Battu and Sk. Juman respectively. It is also alleged that Bibi Nashiba was neither the full sister of Sk. Suddi. Sk. Battu and Sk. Juman nor con-sanguine sister of Sk. Suddi, Sk. Battu and Sk. Juman aforesaid and they had predeceased Bibi Nashiba and the plaintiffs have never succeeded the suit property nor they have any interest therein. It is alleged that Bibi Nashiba died in the year 1979 and Bibi Bashiran died in the year 1981 and on death of Bibi Nashiba, her daughter Bibi Bashiran succeeded her mothers interest in the suit land and on death of Bibi Bashiran her son Sk. Suleman inherited the entire suit land the defendants- appellants are the sons of Sk. Suleman and they are in exclusive possession of the suit land. 5. In view of the pleadings of the parties, the learned trial Court had framed the followings issues for adjudication :- (i) Is the suit as framed maintainable ? (ii) Have the plaintiffs got any cause of action for the suit? (iii) Was Bibi Nashiba the daughter of Sk. Ashgari or Sk. Laskari ? (iv) Did Bibi Nashiba and Bibi Bashiran formed a joint family with Sk. Suleman? (v) Did Sk. Suleman possessed the properties of Bibi Nashiba and Bibi Bashiran? (vi) Are the plaintiffs entitled to a decree for partition over the suit land? If so to what extent? (vii) To what relief or reliefs of any are the plaintiffs entitled? 6. In view of the oral and documentary evidence on the record, the learned trial Court had decided all the issues framed by it and while deciding issue Nos. (ill) (iv) and (v) it has been held that it could not be proved beyond doubt that Bibi Nashiba was the daughter of either Sk, Ashgari or Sk. Laskari and Sk. 6. In view of the oral and documentary evidence on the record, the learned trial Court had decided all the issues framed by it and while deciding issue Nos. (ill) (iv) and (v) it has been held that it could not be proved beyond doubt that Bibi Nashiba was the daughter of either Sk, Ashgari or Sk. Laskari and Sk. Suleman, the father of the defendants was in cultivating possession of the suit land since the lifetime of Bibi Nashiba and Bibi Bashlran, who had formed a joint family along with Sk. Suleman and the aforesaid issues were decided in favour of the defendants and against the plaintiffs. The learned trial Court also decided the remaining issues against the plaintiffs and accordingly dismissed the suit. 7. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred Title Appeal No. 10 of 2000. The learned appellate Court below on reappraisal and reappreciation of the evidence set aside the judgment and decree of the trial Court and allowed the appeal and remitted the case back to the trial Court for a fresh decision and in para-7 of its judgment it has been stated that the Court below failed to settle issues with regard to the fact as to whether Bibi Bashiran was the full sister of Sk. Rahman or the stepsister and as to whether Bibi Mangli died in the lifetime of Sk. Rahman and also as lo whether Bibi Nashiba died in the year 1979 or in the year 1982 and the trial Court has to give definite finding on the aforesaid questions by settling issues after considering the evidence if adduced by the parties thereafter. The learned appellate Court below has further held that the re-trial of the whole suit is necessary and the whole suit requires to be remanded back with a direction to re-try the whole suit by settling fresh issues as staled above and to give opportunity to the parties to adduce evidence and thereafter the learned trial Court is to require to give finding on each issues in view of the evidence available on the record brought by the parties. 8. Assailing the impugned judgment it has been submitted by the learned counsel for the defendants-appellant that the impugned order of remand is erroneous and it is not within either Rule 23. 8. Assailing the impugned judgment it has been submitted by the learned counsel for the defendants-appellant that the impugned order of remand is erroneous and it is not within either Rule 23. or Rule 23-A, or Rule 25 of Order XLI of the Code of Civil Procedure. It has 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 the 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 issues for adjudication by the trial Court and has remitted the case to the trial Court but the learned appellate Court below 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 Lo 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. It has further been contended that Rule 24 of Order XLI of the Code of Civil Procedure is applicable in the present case as the evidence of the parties was on the record to decide the matter in controversy and it was incumbent upon the appellate Court below to decide the appeal on merit. It has also been submitted that the appellate Court below should be circumspect in ordering a remand when the case is not covered, either by Rule 23 or Rule 23-A or Rule 25 Order XLI of the Code of Civil Procedure as an unwarranted order of remand gives the litigation an underserved lease of life and it should be avoided. It has also been submitted that the appellate Court below should be circumspect in ordering a remand when the case is not covered, either by Rule 23 or Rule 23-A or Rule 25 Order XLI of the Code of Civil Procedure as an unwarranted order of remand gives the litigation an underserved lease of life and it should be avoided. It has further been submitted that the lower appellate Court should not have remanded this case merely because it considers the reasoning of the trial Court to be wrong or self-contradictory and when the material was available before the lower appellate Court it should have itself decided the appeal one way or the other and it could have considered the various aspects of the case mentioned in the order of the trial Court and would have considered whether the order of the trial Court ought to be confirmed or reserved or modified and thus, the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the cases of Shrimati Kartar Devi v. Shrimati Pramila Devi, 1993 (1) PLJR 576, P. Purushottam Reddy and another v. M/s. Pratap Steels Ltd., 2002 AIR SCW 417 and Dwarka Nath Prasad Atal v. Ram Rati Devi. AIR 1980 SC 192 . 9. In contra, it has been submitted by the learned counsel for the plaintiff- respondent that the impugned order of remand of the appellate Court below is within the ambit of Rule 23-A of Order XLI. of the Code of Civil Procedure and the learned appellate Court below has recorded a finding that re-trial is a necessity in view of the fact that the issues for complete and effectual adjudication of the matter in controversy between the parties have been omitted by the trial Court and as such there is no illegality or any infirmity in the Impugned judgment of remand after setting aside the judgment and decree of the trial Court. - 10. It is relevant to mention at the very outset that a Court, of appeal has a power to remand a case only under Order XLI. Rule 23. Rule 23-A and Rule 25 of the Code of Civil Procedure. - 10. It is relevant to mention at the very outset that a Court, of appeal has a power to remand a case only under Order XLI. Rule 23. Rule 23-A and Rule 25 of the Code of Civil Procedure. Rule 23 aforesaid has no application in the context of this case Rule 23-A, which provides for a remand by the appellate Court hearing an appeal against, the decree, has been inserted in Order XLI of the Code of Civil Procedure by the Amending Act. 1976 and prior to that it was the settled position of law that the Court in ail appropriate case would exercise its inherent jurisdiction under Section 151, C. P. C. to order a remand if such remand was considered pre-emanatory necessary ex debito justitiae though not covered by an specific provision of Order XLI, CPC. For proper appreciation, 1 quote Order XU, Rule 23-A which reads as follows : 23-A. Remand in other cases.--Where the Court from whose decree on appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23." From a bare perusal of the aforementioned provision, it is evident that in order to invoke the jurisdiction of the appellate Court in terms thereof the decree passed by the learned trial Court has to be reversed in appeal and a re- trial must be considered necessary and the conditions aforesaid being satisfied the appellate Court can exercise the same power to remand under Rule 23-A as under Rule 23. All the cases of wholesale remand are. therefore, covered by Rules 23 and 23-A. Furthermore, the learned appellate Court below in the impugned judgment has also not reversed all the findings of the learned trial Court, which were decided against the plaintiffs, rather, the learned appellate Court below has framed further issues and remitted the suit for a fresh decision. All the cases of wholesale remand are. therefore, covered by Rules 23 and 23-A. Furthermore, the learned appellate Court below in the impugned judgment has also not reversed all the findings of the learned trial Court, which were decided against the plaintiffs, rather, the learned appellate Court below has framed further issues and remitted the suit for a fresh decision. For the sake of clarity, I quote the relevant paragraph of the impugned judgment which runs thus : "On considering the case of the parties and the submissions made on behalf of the parties to this appeal, it is found that the learned Court below failed to settle issues with regard to this fact as to whether Bibi Bashiran was the full sister of Sk. Rahman or the step-sister. The learned Court below also failed to settle issue as to whether Bibi Mangll died in the lifetime of Sk. Rahman. There is also a question which requires decision of the Court by settling issue as to whether Bibi Nashiba died in the year 1979 or in the year 1982. None of the aforesaid points raised by the appellants as well as by the respondents has been decided by the learned Court below. The trial Court has to give definite finding on the aforesaid points by settling issues after considering the evidence if adduced by the parties and thereafter, the learned trial Court has to decide the share of the appellants and the respondents." It appears that the learned appellate Court below has not exercised its power of remand under Rule 23-A of the Code of Civil Procedure but under Rule 25 of Order XLI of the Code though it has not followed the mandates contained therein. For proper appreciation. I quote Rule 25 of Order XU. 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 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 therefor 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 and 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 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 tills case. The appellate Court below has also not adverted under Rule 24 of Order XLI of the Code of Civil Procedure for the reasons best known to him in this case. 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 tills case. The appellate Court below has also not adverted under Rule 24 of Order XLI of the Code of Civil Procedure for the reasons best known to him in this case. The proper course for the Court below was to follow the mandates of Rule 24 of Order XLI of the Code, in this case when the evidence was sufficient to dispose of the matter before the appellate Court. The order of remand for delivering a fresh judgment on the basis of the existing evidence on the record would definitely be illegal. It is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made but the appeal at hand does not conform to the provisions of Order XLI, Rule 23-A. Rule 24 of Order XLI of the Code of Civil Procedure is definitely applicable in the present case when it is admitted that there is already oral and documentary evidence on the record and in such a situation it is incumbent on the appellate Court below to decide the appeal on merit. The first appellate Court is a final Court of facts and all the questions of facts and law arising in the case were open before it for consideration and decision and it should not ordinarily remand a case under Rule 23-A to the trial Court merely because it considers that the reasoning of the trial Court in some respects is wrong or inconsistent. Such remand order leads to unnecessary delay and cause prejudice to the parties to the case. When the proper material was available before the lower appellate Court it should have itself decided the appeal one way or the other. It should have considered the various aspects of the case mentioned in the judgment of the trial Court and should have considered whether an order of the trial Court ought to be confirmed or reversed or modified. The ratio of the cases of Shrimati Kartar, (supra). It should have considered the various aspects of the case mentioned in the judgment of the trial Court and should have considered whether an order of the trial Court ought to be confirmed or reversed or modified. The ratio of the cases of Shrimati Kartar, (supra). P. Purushottam Reddy and another, (supra) and Dwarka Nath Prasad Atal, (supra) relied upon by the learned counsel for the defendants-appellants supports his contention and there is substance in the contention of the learned counsel for the defendants- appellant. Therefore, the impugned Judgment of the learned appellate Court below suffers with infirmity and illegality and it cannot be sustained. 11. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned Judgment is set aside. The learned appellate Court below is, directed to decide afresh Title Appeal No. 10 of 2000 on merit and to apply its mind a fresh after giving an opportunity of hearing to the learned counsel of both the parties within the period of three months positively from the date of receipt of this order or from the date of the filing of a copy of this order by either of the parties which ever is earlier. However, there shall be no order as to costs. 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.