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2013 DIGILAW 1323 (PAT)

Chhedi Sah v. Bhatu Sah

2013-11-22

JYOTI SARAN

body2013
JUDGMENT : This appeal under Order 43 rule 1(u) of the Code of Civil Procedure is directed against the judgment and order dated 18.9.2004 passed by the learned Additional District and Sessions Judge (Fast Track Court No.1), Darbhanga in Title Appeal No.6 of 1998, whereby the appellate court below while setting aside the judgment and decree of the trial court passed in Partition Suit No.46 of 1994 has remitted the suit for fresh adjudication by the trial court after framing of an issue “as to whether Sukani Devi was the wife of Jailal Sah or whether Athuliya Devi was the wife of Jailal Sah.” 2. I have heard Mr. Durga Nand Jha, learned counsel appearing on behalf of the appellants and Mr. Shashi Shekhar Dwivedi, learned senior counsel appearing on behalf of the respondents. 3. Mr. Jha, learned counsel for the appellants while contesting the judgment and order impugned has made reference to paragraphs 27 to 29 of the judgment of the trial court to submit that both the parties have contested the issue as to whether Sukani Devi was the wife of Jailal Sah or Athuliya Devi was the wife of Jailal Sah and have also led evidence in support. It is stated that a conclusive finding has been recorded by the trial court in paragraph no.29 after appreciation of the oral and documentary evidence led by the contesting parties to hold that Athuliya Devi was the wife of Jailal Sah. He submits that in such circumstance, there was no occasion for the appellate court below to have set aside the judgment and decree passed by the trial court and requiring the trial court to pass a judgment afresh after framing a specific issue as to “whether Sukani Devi or Athuliya Devi was the wife of Jailal Sah”. 4. Although the proposition advanced by Mr. Jha is sought to be contested by Mr. Dwivedi, learned senior counsel with reference to law of evidence but law stands well settled in this regard and a reference is made to the judgment of the Supreme Court reported in AIR 2009 SC 1103 : (2008)17 SCC 491 (Bachhaj Nahar Vs. 4. Although the proposition advanced by Mr. Jha is sought to be contested by Mr. Dwivedi, learned senior counsel with reference to law of evidence but law stands well settled in this regard and a reference is made to the judgment of the Supreme Court reported in AIR 2009 SC 1103 : (2008)17 SCC 491 (Bachhaj Nahar Vs. Nilima Mandal) wherein the Supreme Court with reference to the earlier judgments has held that non-framing of an issue would not be fatal where it is a matter of record that the contesting parties had approached the court with open eyes and being aware of the contest, had led evidence in support of their contentions. The judgment of the Supreme Court is self-eloquent on the matter and the finding of the trial court at paragraphs 27 to 29 manifests that this specific issue has been gone into by the trial court on the basis of the evidence led by the contesting parties to record specific finding as regarding the wife of Jailal Sah in paragraph 29 of the judgment of the trial court. In that view of the matter, a mere non-framing of an issue on this aspect, would not render the judgment and decree of the trial court illegal. 5. For the reasons aforementioned the judgment and order passed by the appellate court below cannot be upheld and is accordingly set aside. The matter is remitted to the appellate court to consider the appeal on its own merit and dispose of same in accordance with law expeditiously and preferably within a period of six months from the date of receipt/production of a copy of this order. 6. This appeal is allowed. 7. Let the lower court records received in connection with Title Appeal No.06 of 1998 be returned to the Additional District Judge (F.T.C. No.1), Darbhanga forthwith. Appeal allowed.