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2007 DIGILAW 849 (PAT)

Rohit Kumar Sah v. Ashok Kumar Saha

2007-04-30

REKHA KUMARI

body2007
Judgment 1. This appeal is directed against the judgment dated 22.5.2000 passed by the 7th Additional District Judge, Bhagalpur in Title Appeal No. 49 of 1995 whereby and whereunder he has set aside the judgment and decree dated 12.6.1995 passed by the Subordinate Judge IV, Bhagalpur in Title Suit No. 110/4 of 1979/95 and has remanded the suit for fresh decision in accordance with law. 2. Both sides were heard. 3. The plaintiff (appellant in this appeal) had filed a suit for eviction of the defendants (respondents in this appeal) from the suit property and for realisation of arrear of rent and in the alternative for declaration of title of the plaintiff in the suit property and for recovery of possession. 4. The case of the plaintiff in the plaint, inter alia, is that the suit property along with other adjacent land and building belong to Badri Vishal Dhandhania who had acquired the same through registered sale deed no. 8913 dated 12/29.6.70 executed by the Subordinate Judge, Bhagalpur in accordance with the decree dated 3.6.1962 passed in Title Suit No. 21 of 1964. The said Badri Vishal Dhandhania came in possession over the land covered by the sale deed. Defendant no. 1 Kali Charan Prasad Saha and others were tenants in the suit property. They continued to be the tenants. The name of the purchaser was mutated. The plaintiff thereafter by a registered sale deed dated 30.6.1978 purchased the suit properties along with other properties from the heirs of Badri Vishal Dhandhania who was dead then and came in possession. The defendants continued a month to month tenant over the suit property. The name of the plaintiff was entered into Municipal register. The defendants, however, failed to pay rent and also filed an appeal in the ongoing Municipal survey proceedings claiming title over the suit property by adverse possession. The plaintiff, hence, was compelled to file a suit. 5. The defendants contested the suit. Their case in the written statement, inter alia, is that the plaintiff was the purchaser of a parti land lying west of the disputed land which is a pakka house. The plaintifs sale deed was fraudulent. The contract of sale between Badri Vishal Dhandhania did not relate to contract between them but at the time of execution of the sale deed the disputed land was fraudulently incorporated. The plaintifs sale deed was fraudulent. The contract of sale between Badri Vishal Dhandhania did not relate to contract between them but at the time of execution of the sale deed the disputed land was fraudulently incorporated. Their further case is that the defendants father was Munshi of Fazlur Rahman and Abdul Ghani sons of Sharafat Hussain, who owned the property and the said Fazlur Rahman and Sharafat Husain had executed a sale deed in favour of the defendants father in 1950 and since then they are coming in possession. The defendants father had constructed a room and repaired the existing dilapidated hall, verandah etc. Later on he started a hotel in which he inducted Harishchandra Jha as partner who was quite trustworthy and after the fathers death the defendant and his mother had been coming in possession and running hotel. 6. There was thus never any relationship of landlord and tenant between the parties. The defendants have also claimed title over the suit properties by adverse possession. 7. The learned Subordinate Judge on the basis of the pleadings of the parties framed several issues and by a long judgment held that the defendants were tenants of the plaintiff and defaulted in payment of rent and, therefore, the plaintiff has got a cause of action for the eviction. He accordingly decreed the suit in favour of the plaintiff and the defendants were directed to evict the suit premises. 8. The defendant Kali Charan Prasad Sah and others preferred appeal in Title Appeal No. 49 of 1995. The learned 7th Additional District Judge, Bhagalpur held that the learned Subordinate Judge has omitted to frame necessary issues and he also failed to consider the oral evidence of the parties while deciding the issue of adverse possession. Accordingly, by the impugned judgment allowed the appeal, set aside the judgment of the Subordinate Judge and remanded the suit under Order XLI Rule 23-A of the Code of Civil Procedure. 9. Learned counsel for the appellant submitted that the impugned judgment is bad in law and cannot be sustained when the evidence was already available. If the learned trial court has omitted to consider the evidence the learned lower appellant court itself should have passed necessary orders on the point of adverse possession by considering those evidence and that was no ground to remand the suit. If the learned trial court has omitted to consider the evidence the learned lower appellant court itself should have passed necessary orders on the point of adverse possession by considering those evidence and that was no ground to remand the suit. In support of his submission, he relied on the decision of the Supreme Court in the case of Kattu Kandi Edathel Krishnan and other vs. Kattu Kandi Edathel Walsan and others, (2006) 9 SCC 166 wherein while discussing the scope at Order XLI Rule 23-A C.P.C. it has been held that we are of the view that the High Court misdirected itself. It should have considered whatever evidence was on record for the purpose of disposing of the appeals and either confirm or reverse the order of the trial court after re-appreciation of evidence. 10. He further submitted that as regards non-framing of some issues, the impugned judgment would show that according to the learned lower appellate court, the trial court should have framed issues on the point as to whether Ext. C is a spurious document before discarding it as spurious and that it should have framed issues whether the suit was barred by law of limitation as the defendants in their written statement have made an averment that the suit is barred by limitation but Ext. C/1 is a partnership deed executed by Biro Sah and one Harish Chandra Sah and has been filed by the defendants in order to show their possession over the suit property as owner and, therefore, is simply an evidence and so there was no necessity to frame issue regarding the genuineness of the documents and as regards the issue on point of limitation, mere omission of framing that issue was not fatal to the case. So, this was also no ground for remand of the suit. 11. Learned counsel for the defendants defended the impugned order. 12. I find substance in the submissions of the learned counsel for the plaintiff appellant. Though Order XLI Rule 23-A C.RC. has extended the ambit of the power of the appellate court to remand for retrial, the remand under this provision should be resorted to only when the Court finds it necessary and not arbitrarily. In this case as pointed out by the learned appellate court itself what evidence was available on record. Though Order XLI Rule 23-A C.RC. has extended the ambit of the power of the appellate court to remand for retrial, the remand under this provision should be resorted to only when the Court finds it necessary and not arbitrarily. In this case as pointed out by the learned appellate court itself what evidence was available on record. Therefore, as provided under Order XLI Rule 24 C.P.C. the appellate court should have finally determined the issue with regard to title of the defendants by adverse possession and should not have remanded the suit. This view also finds support from the above decision of the Supreme Court. 13. Then as regards non-framing of issues regarding the genuineness of Ext. C/1, the document is simply an evidence in support of the possession of the defendants. Therefore, there was no necessity for framing any issue to determine the genuineness. Again as regards the issue regarding the suit being barred by limitation, the learned court has rightly submitted that mere omission to frame an issue is not fatal to the trial of a suit unless the omission has affected the disposal of the suit on merits but nowhere in the judgment it has been pointed out that as to how the issue was essential in this case. Then even if it was a necessary issue, the learned lower appellate court could have proceeded under Order XLI Rule 25 C.P.C. and after framing the issue on this point or any other issue if necessary referred the same for trial by the trial court without remanding the case to the trial court. 14. In view of the above decision, the learned lower appellate court was not at all justified in remanding the whole suit for re-trial. The impugned judgment thus, cannot be sustained. 15. In the result this appeal is allowed. The impugned judgment is set aside. The learned lower appellate court is directed to hear appeal again and pass a fresh judgment in accordance with law.