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2008 DIGILAW 248 (ORI)

KARIO ORAMIN @ ORAM v. NISHIKANTA KHALKHO

2008-03-26

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - This appeal is directed against the Judgment dated 30.7.2007 passed by the learned Addl. District Judge, Rourkela in RFA No. 6 of 2005. 2. The facts of the case as narrated in the records are as follows: The Defendants are the Appellants before this Court. The Respondent as the Plaintiff filed the suit for declaration of his right, title and interest and confirmation of possession over the suit land along with a prayer for mandatory injunction restraining the Defendants from interfering with the possession of the suit land of the Plaintiff on the ground that one Thukudi Birsa Oram acquired Ac.5.00 res. of land through a Hukumnama in the year 1950 and after his death in order to meet the family requirements, his son Lalu Oram sold Ac.0.20 decimals of the suit land on 29.3.1980 on the strength of a registered sale deed to one Sarat Kumar Oram who was a minor. After the purchase, the purchaser remained in possession and on 13.6.1995, said Sarat Kumar Oram sold the land in favour of the Plaintiff for legal necessity through his father-natural guardian Samra Oram and delivered possession of the suit land in favour of the Plaintiff. Since the date of the purchase, the Plaintiff remained in cultivating possession of the suit land. The Defendants, who have absolutely no right, title or interest over the suit land, trying to create disturbance in the peaceful possession of the Plaintiff over the suit land stacked bricks, sands near the suit land on 30th March, 1999 to raise construction. Thus, the Plaintiff filed the suit for the above reliefs. 3. Defendant Nos. 1 and 3 were set ex parte. After getting notice, Defendant Nos. 2 and 4 to 8 filed their joint written statement. In their written statement, they traversed the allegations made in the plaint. They admitted that the ownership and possession of Thukudu Birsa Oram and after him, his successor-in-interest the Defendants are in possession of the disputed land. They further stated that Lalu Oram was never in need of money as he was employed under the Tata Iron & Steel Company after completion for short service from the Indian Armed Forces. He never sold any land in favour of Sarat Kumar Oram. They further stated that Lalu Oram was never in need of money as he was employed under the Tata Iron & Steel Company after completion for short service from the Indian Armed Forces. He never sold any land in favour of Sarat Kumar Oram. Lalu Oram and after his death his son Birsa Oram as well as Defendant No. 2 continuously and uninterruptedly is possessing the suit land. They are illiterate and tribal people. Taking advantage of their ignorance and illiteracy, one Settlement Amin, namely, B.C. Matgajasingh had fraudulently manipulated the records and managed to obtain the so-called registered sale deed and Lalu Oram has never executed any sale deed on 29th March, 1980 and Sarat Kumar Oram has also not executed any sale deed on 30.6.1995. No consideration money was paid and no sale deed was executed by impostor in the name of Lalu Oram. They have specifically pleaded that there is no person in the name of Sarat Kumar Oram. He being a fictitious person, the real beneficiary is Bhikari Charan Matgajsing, a retired Revenue Inspector who managed everything to grab the land. On the aforesaid pleadings, the learned Civil Judge (Senior Division), Rourkela formulated as many as eight issues and gave the findings that the Plaintiff is not in possession of the suit land and the sale deed dated 29th March, 1980 is ab initio void as Plaintiff has not been able to prove that the true import of sale transactions were explained to the executant. On the aforesaid findings, the learned Civil Judge by order dated 17.12.2004 dismissed the suit on contest against Defendants 2, 4 and 8 with costs and ex parte against Defendants 1 and 3 without costs. 4. Being aggrieved by the said Judgment and decree, Plaintiff preferred the first appeal and the lower appellate Court formulated an issue whether Lalu Oram had voluntarily executed the registered sale deed in respect of the suit land in favour of Sarat Oram who was a fictitious person and not in existence and on that point it has come to the findings that record-of-right in respect of suit land stood recorded in the name of Sarat Kumar Oram. P.Ws. 1, 3 and 4 being the local person, there is nothing on record to show that they are giving evidence against the Defendants who are their co-villagers or relatives. P.Ws. 1, 3 and 4 being the local person, there is nothing on record to show that they are giving evidence against the Defendants who are their co-villagers or relatives. It further found that the learned Civil Judge erred in law in treating the transaction between Lalu Oram and Sarat Kumar Oram as a fake and fraudulent one and on the said finding it formulated an issue that if Sarat Kumar Oram is a fictitious person and the transaction made between Lalu Oram and Sarat Kumar Oram is fraudulent one and Bhikari Charan Matgajsing is a real beneficiary then the trial Court should give the finding on the said issue. As the trial Court did not give any verdict regarding the genuineness of the pleadings in this regard, it has come to a conclusion that the sale deed executed by Lalu Oram in favour of Sarat Kumar Oram is not proved beyond all reasonable doubt. On the aforesaid findings, the lower appellate Court set aside the impugned Judgment and decree passed by the learned Civil Judge and remanded the suit for fresh adjudication after giving opportunity of hearing to the parties to adduce evidence on the point raised. 5. The learned Counsel appearing for the Appellants submitted that the lower appellate Court has reversed all the findings and remanded the suit to the trial Court for fresh disposal which is illegal and against the settled principle of law. If the lower appellate Court was of the view that a specific additional issue had to be framed, it should have remanded the matter by framing the said issue and called for a finding from the trial Court on the same, instead of setting aside the entire findings of the trial Court and directing for a fresh trial. The case is rather coming under Order 41, Rule 25 than Rule 23 of the Code of Civil Procedure. He further submitted that during the pendency of the First Appeal, Defendant-Respondent No. 1-Chandu Oramin died. As her LRs were not substituted, the lower appellate Court has passed the Judgment against a dead person which is a nullity in the eye of law and needs to be set aside. 6. The learned Counsel appearing for the Respondent submitted that the lower appellate Court has rightly remanded the matter. As her LRs were not substituted, the lower appellate Court has passed the Judgment against a dead person which is a nullity in the eye of law and needs to be set aside. 6. The learned Counsel appearing for the Respondent submitted that the lower appellate Court has rightly remanded the matter. It is the Defendants-Appellants who had to raise the plea that Sarat Kumar Oram is a fictitious person and there is no person in the name of said Sarat Kumar Oram and no issue was framed to that effect and since the merit of the case depends totally on that issue, the matter should be heard again by the trial Court. All the L.Rs of Chandu Oramin are already on record. Therefore, the Judgment was not passed against a dead person. 7. Considering the aforesaid rival submissions of the parties, after verifying the record and analyzing the materials available on record which reveal that Chandu Oramin died on 12.10.2006. It is not in dispute that her LRs are already on record. Hence, the Judgment passed by the lower appellate Court need not be treated as a nullity on the ground that the said order is passed against a dead person without substituting the LRs. The second point is whether the lower appellate Court is right in setting aside all the findings of the trial Court and directing for fresh trial which is an open remand, instead of issuing direction under Order 41, Rule 23 of the CPC it had formulated the specific issue and the direction to the trial Court to give opportunity to the parties to adduce additional evidence and decide the suit afresh is within the purview of Order 41, Rule 25 of the Code of Civil Procedure. 8. 8. This Court has noted that the trial Court while answering issue No. 4- whether the registered sale deed No. 313 dated 29.3.1980 is the outcome of fraud and is a void one, and issue No. 6- whether Lalu Oram had voluntarily executed the registered sale deed dated 29.3.1980 in respect of the suit land in favour of one Sarat Kumar Oram for consideration and if the latter had acquired valid right over the suit land, the learned Civil Judge has recorded the finding that the sale deed is void ab initio because the Plaintiff has not been able to prove that the contents or the true import of the sale deed were explained to the executants thereof and having understood the same he has executed the deed. On the said finding, he has negatived the title claimed by the Plaintiff. 9. As it appears from the Judgment of the learned Addl. District Judge, she has remanded the matter under the provision of Order 41, Rule 25 of the CPC reversing the findings of the trial Court without giving any reason for reversal. The Scope of Rule 25 of Order 41 of the CPC is very clear and if the appellate Court frames an issue under this Rule, the appellate Court should have regarded to the provision of Order 14, Rule 3 of the CPC which indicates the materials from which issues are to be framed. In the present case, considering the case of the parties if the lower appellate Court found that a necessary issue had not been framed, instead of remanding the matter to the trial Court, it should have only called for a finding of the trial Court sending that particular issue only to be tried by the lower Court because neither any such issue was framed nor was the suit was tried by the trial Court on that point and an opportunity should be given to the parties to adduce evidence thereon. However, this provision does not authorize the Court to send the issue to the trial Court for fresh evidence and a revise finding. Thus, when an additional issue is sought to be framed, the Court should follow Rule 25 instead of Rule 23 of Order 41 of the CPC which is an open remand. 10. However, this provision does not authorize the Court to send the issue to the trial Court for fresh evidence and a revise finding. Thus, when an additional issue is sought to be framed, the Court should follow Rule 25 instead of Rule 23 of Order 41 of the CPC which is an open remand. 10. The legislature has entrusted a very important duty to the first appellate Court, and it is for that Court to decide finally all questions of fact on which disposal of the suit might be dependant. In a case of reversal by the first appellate Court, it is all the more important for the said Court to consider the evidence and the reasoning of the trial Court and only thereafter to give its reasons for not agreeing with the findings of the trial Court. A perusal of the Judgment must show that the lower appellate Court has applied its mind to the evidence on record. The Plaintiff has to stand or fall on the strength of his own case irrespective of any fact pleaded or proved by the Defendant. Remand is not meant to provide fresh opportunity to a party to litigate. To order retrial of a case is a serious matter and may mean considerable waste of public time. Such an order can be passed only in exceptional cases, as for example, where there had been no real trial of the dispute and no complete or effectual adjudication of the proceeding and the party complaining has suffered on that account. 11. In the present case, the trial Court after considering the evidence, has come to a conclusion that the sale deed executed in favour of Sarat Oram, a minor, is a void document, the lower appellate Court should have reversed that finding, as all the evidences were available on records. Instead of doing so, it has remanded the matter on another issue, which is illegal. 12. Thus, considering the aforesaid position and taking note of the decision of the Apex Court in the case of Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur reported in 2008 (1) CLR 439, the Judgment dated 30.7.2007 passed by the learned Addl. Instead of doing so, it has remanded the matter on another issue, which is illegal. 12. Thus, considering the aforesaid position and taking note of the decision of the Apex Court in the case of Smt. Bachahan Devi and Anr. v. Nagar Nigam, Gorakhpur reported in 2008 (1) CLR 439, the Judgment dated 30.7.2007 passed by the learned Addl. District Judge, Rourkela in RFA No. 6 of 2005 is set aside and the lower appellate Court is directed to give findings on the materials available on records instead of sending the entire matter to the trial Court for fresh adjudication. 13. With the above observation the appeal is disposed of. No costs.