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2010 DIGILAW 626 (JHR)

Karu Sao (Since Dead) v. Khem Lal Sao

2010-05-19

PRADEEP KUMAR

body2010
JUDGMENT : Pradeep Kumar, J. This first appeal is directed against the judgment and decree dated 30.8.2003 passed by Sri Rajesh Kumar Dubey, 1st Additional District Judge, Hazaribagh in Title Appeal No. 4 of 1994 whereby and whereunder the appeal was allowed and the case was remanded back to the trial court for retrial on formulation of three points by setting aside the judgment dated 30.11.1993 passed by Munsif, Hazaribagh in Title Suit No. 145 of 1989. 2. It is submitted by the learned Counsel for the appellants that the learned appellate court has misdirected itself by remanding the case back to the trial court for giving a finding as to the actual area of land in dispute by appointing a Survey Knowing Pleader Commissioner when, in fact, there was no dispute with regard to the area of the suit land. It is further submitted that the learned appellate court has remanded the matter back to the trial court for marking the defendants documents, which was marked as Ext.-'X' since the documents were marked and hence it was marked for identification. If in the opinion of the lower appellate court it was fit for marking then he could have marked the same and as such the order of remand is beyond the scope of Order 41 Rule 23 or Rule 23-A C.P.C and hence the impugned order is only fit to be set aside. Learned Counsel has relied in the judgment of Patna High Court reported in 2004 (3) J.C.R. 406 . 3. On the other hand, learned Counsel appearing for the respondents has submitted that the documents relied by the respondents-defendants i.e. the Patta and Hukumnama were properly marked as exhibits and the same were marked only as -X' for identification and hence the trial court did not rely on the same. In that view of the matter, the learned appellate court rightly remanded the matter back by setting aside the judgment and decree passed by the trial court. 4. After hearing learned Counsel for the parties and going through the record, I find that the plaintiffs-appellants had filed Title Suit No. 145 of 1989 before the Munsif, Hazaribagh for declaration of title and confirmation of possession and in the event of finding the plaintiffs dispossessed for the recovery of possession. 5. 4. After hearing learned Counsel for the parties and going through the record, I find that the plaintiffs-appellants had filed Title Suit No. 145 of 1989 before the Munsif, Hazaribagh for declaration of title and confirmation of possession and in the event of finding the plaintiffs dispossessed for the recovery of possession. 5. The plaintiffs' case in brief was that the land of Khata No. 115 of Village Salgawa, P. S. Katkamsandi, during the cadastral survey was recorded as gairmajarua khas of the Malik. They stated that one Guruk Sao father of plaintiff Nos. 1 & 2 and grandfather of plaintiff Nos. 3 to 5 had reclaimed land out of plot No. 5399 and made it cultivable and subsequently he approached manager of the Ward and Encumbered estate, Hazaribagh under whom the estate was being managed at the relevant period for settlement of the reclaimed land. On the basis of Kabuliat and measurement of the reclaimed land, a Patta was prepared on 12.4.1924 under the authority and was finally granted on 14.4.1924 on a najrana of Rs. 5/- and annual rent of Rs. 2/8. the said Guduk Teli paid rent to the Manager, Ward and Encumbered Estate regularly and he was granted rent receipts. Ex-landlord shown Boundha Sao, the eldest son of Guduk Sao as raiyat over the suit land and in the return filed by him as Guduk Teli was no more at that time. The State of Bihar in recognition of the raiyaty right accepted the rent and granted rent receipts in the name of Boudha Sao which is still continuing. The said Guduk Sao in course of cultivation also amalgamated the suit land with raiyati land appertaining to plot No. 5156. Subsequently the dispute was created by the defendant and 144 proceeding was initiated which was converted into 145 Cr. P. C. proceeding and since learned Executive Magistrate declared the possession land over the suit land hence the suit was filed. 6. The defendants appeared in the suit and filed their written statements. According to the defendants the land of village Salgama was admittedly belonging to Ward and Encumbered Estate, Hazaribagh. According to them Mahabir Prasad took settlement of 4.42 acres land inclusive of the suit land in the year 1932 under the signature of General Manager, Ward and Encumbered Estate on an annual rental of Rs. 3/11/9 pie. He paid rent to the estate itself. According to them Mahabir Prasad took settlement of 4.42 acres land inclusive of the suit land in the year 1932 under the signature of General Manager, Ward and Encumbered Estate on an annual rental of Rs. 3/11/9 pie. He paid rent to the estate itself. For legal necessity he sold his entire said 4.42 acres of land to Choudhery Sheonandan Prasad with the permission of Deputy Commissioner, Hazaribagh vide order dated 16.12.1936 by means of registered sale deed dated 6.2.1937. Choudhery Sheonandan Prasad was put in possession over the purchased land. His name was mutated in the serishta of the ex-landlord. He was subsequently acknowledged as tenant by the State of Bihar. Later he sold entire 4.4.2 acres land including the suit land to Jhaman Chamar and Ors. by means of a registered sale deeds in the year 1956 and put the purchaser in possession. The said purchasers got their names mutated by the State of Bihar and paid rent to the Government. They continued carrying on formal agricultural operation over the suit land. After 20 years they sold 1.16 acre of land to the defendants for valuable consideration by means of registered sale deed dated 26.7.77 and put the purchaser in possession thereof. The names of defendants have also been mutated in the State sarishta after due inquiry in respect of the suit land. They are in continued possession over the land. It is quite incorrect to say that the suit was ever reclaimed by Guduk Sao or that Guduk Sao or his legal heirs possession ever came in possession over the suit land. 7. Since there was no dispute raised by the defendants respondents with regard to the area of land, hence no issue was framed by the appellate court. The learned trial court in suit framed the following 8 issues: (i) It is the suit maintainable in its present form? (ii)Is the suit barred by law of limitation, estoppel, acquiescence, waiver and adverse possession? (iii)Is the suit suffers from non-joinder of necessary parties? (iv) Is the suit land properly valued? (v) is the court fee sufficiently paid? (vi) Has the plaintiffs any cause of action for the suit? (vii)Has the plaintiffs right, title and possession over the suit property as described in the plaint? (viii) To what relief or reliefs, if any, the plaintiffs are entitled to? 8. (iv) Is the suit land properly valued? (v) is the court fee sufficiently paid? (vi) Has the plaintiffs any cause of action for the suit? (vii)Has the plaintiffs right, title and possession over the suit property as described in the plaint? (viii) To what relief or reliefs, if any, the plaintiffs are entitled to? 8. Hence, in my opinion, since there was no dispute with regard to area of the suit land, but the learned appellate court misdirected itself in remanding the case back to the trial court for appointment of a Survey Knowing Pleader Commissioner to ascertain the land in dispute. The learned trial court while discussing the evidences and documents of the defendants, by his judgment observed that P.W.5, Kedar Nath Sahay as under: This witness has identified the signature of the Manager and writing of the clerk and also the signature of the head clerk. But the trial court instead of marking it as exhibited marked it as Ext, 'X' for identification. By this, the trial court committed the grave error of procedure. The trial court considered the fact that there was cutting on the Hukumnama, but the trial court failed to consider the whole writings in the Hukumnama which is by the same pen and same person. The cutting is in the name of the Manager. The cutting is not in the name of the settlee. The trial court did not consider this patta and Hukumnama as half portion of second page of patta and Hukumnama is missing. This Hukumnama is of the year 1932 and if by passing through a number of hands its half portion of one page has been missed and it does not mean that the parties concealed any fact. This shows that in the eye of lower court the aforesaid Ext. 'C', which was proved to the satisfaction of the appellate court. 9. As discussed above, then he should have marked the said documents as exhibites and passed the proper judgment in stead of remanding the same for marking by the learned Munsif again the appellate court committed an error of law and fact in remanding the suit back only for marking as exhibits, which document were proved to his satisfaction. Since, there was no dispute with regard to area of suit land there was no necessity for remand on that count also. 10. Since, there was no dispute with regard to area of suit land there was no necessity for remand on that count also. 10. In that view of the matter, I find that the order of remand passed by the appellate court is without any basis and not covered by the provisions of Order 41 Rule 23 and 23-A of the code of Civil Procedure. 11. As relied on by the learned Counsel for the appellant in the judgment of Patna High Court reported in 2004 (3) J.C.R. 406 in the case of Arun Kumar Modi v. Dilip Bhagat and Ors. it has been held that "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. Such remand order leads to unnecessary delay and cause prejudice to the parties to the case. When proper material was available before the lower appellate court it should have itself decided the appeal one way or the other. 12. I also find that since all the materials i.e. oral and documentary evidence were available before the lower appellate court and the area of land of the suit was not in dispute. The learned lower appellate court misdirected itself by remanding the case back to the trial court only to delay the disposal of the suit, hence it was the duty of the lower appellate court to decide the appeal on its own merit. 13. Accordingly, the judgment and decree passed by the 1st Additional District Judge, Hazaribagh dated 30.8.2003 is set aside and it is remanded back to the learned 1st Additional District Judge, Hazaribagh for hearing the matter afresh after giving notices to both the parties and pass judgment on merit on the basis of the oral evidence and documents available on the record. 14. Accordingly, the appeal is allowed and the judgment and decree passed by the lower appellate court (1st Additional District Judge, Hazaribagh in Title Appeal No. 4 of 1994) is set aside. Appeal allowed.