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2005 DIGILAW 1940 (RAJ)

Bhanwar Lal v. Bajrang Lal

2005-07-28

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard Learned Counsel for the parties. 2. A suit for cancellation of sale-deed was filed by the plaintiff Bajrang Lal. The suit of the plaintiff was dismissed by the trial Court vide Judgment and decree dated 26.08.1996. Against which the plaintiff respondent Bajrang Lal preferred appeal and that appeal was partly allowed by the first appellate Court and the first appellate Court reached to the conclusion that the trial Court should have decided the issue separately and by not doing so, the trial Court has committed illegality. The first appellate Court vide Judgment and order dated 20.09.2001 remanded the matter back to the trial Court for deciding the suit afresh. 3. Learned Counsel for the appellant vehemently submitted that the trial Court decided all the issues and, therefore, there is no illegality. It is also submitted that related issues can be decided together, therefore, there was no illegality in the Judgment of the trial Court. It is also submitted that each and every point has been decided by the trial Court, therefore, the first appellate Court should not have set-aside the Judgment and decree of the trial Court. Learned Counsel for the appellant further submits that when all the material was before the first appellate Court then the first appellate Court should have decided the appeal on merits independently, which is permissible under law. 4. I considered the submissions of learned Counsel for the appellant and perused the reasons given in the order of the appellate Court and also perused the Judgment of the trial Court. 5. It appears from the Judgment of the trial Court that the trial Court decided the Issues No. 2, 3 and 5 jointly and while doing so the trial Court influenced by the decision given on issue No. 1 about the adoption of the plaintiff merely after observing that since the plaintiff failed to prove him to be adopted son of Smt. Sonki, therefore, Smt. Sonki acquired absolute title to the property. In view of the above finding only, the issues No. 2, 3 and 5 have been decided against the plaintiff and in favour of the defendant. In view of the above finding only, the issues No. 2, 3 and 5 have been decided against the plaintiff and in favour of the defendant. In the same manner while deciding Issues No. 4, 6 and 7 jointly the trial Court considered the facts, which were relevant for the purpose of deciding one issue, but may not be relevant for other issues together and, thereafter, decided the issues No. 4 and 6 in favour of the plaintiff , which according to learned Counsel for the appellant are in fact, in favour of the defendants, but inadvertently, have been given out as in favour of the plaintiff . 6. In view of the above when there is total vagueness in the findings of the trial Court on issues and, therefore, the appellate Court was not in position to draw the reasons for deciding the issues from the Judgment of the trial Court, the first appellate Court remanded the matter to the trial Court. It is true that normally remand should be avoided and appellate Court when having the full evidence with it, the appellate Court itself can decide the appeal on merits even when the trial Court failed to decide any issue or if the appellate Court thinks that on other reasons the appellate Court should decide the suit itself while deciding the appeal, but in the facts of this case, and looking to the variance facts the appellate Court remanded the matter back to the trial Court for deciding the suit afresh and in doing so the appellate Court has not committed any illegality. Therefore, do not find that the appellate Court has committed any error of law or fact and in the facts of this case that was the only option, available to the appellate Court to remand the matter. 7. Hence, the appeal of the appellant is dismissed.