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2015 DIGILAW 626 (ORI)

Kishan Kumar Goyel v. Bhagwati Chand

2015-11-16

BISWANATH RATH

body2015
ORDER : Biswanath Rath, J. 1. This matter arises out of a judgment dated 30.3.2010 passed by the learned Additional District Judge, Sonepur in R.F.A. No. 22 of 2004 thereby remitting the matter to the trial court to frame a specific issue on the point of adverse possession and, thereafter, shall answer issue Nos. 2, 4, 5 and 6 in exercise of power under Order 41, Rule 25 of the Code of Civil Procedure and to send the L.C.R. back with its findings together with the evidence along with reasons for its findings on or before 31.10.2010. 2. Challenging the impugned order of remand, Sri N.C. Pati, learned Senior Counsel submitted that the impugned order is excessive and illegal for the reasons that there was sufficient material available with the lower appellate court to take a decision on the question of adverse possession and, therefore, there was no necessity of remitting the matter for trial court's finding on the question of adverse possession. 3. From perusal of the trial court judgment, it is found that the plaintiff-appellant has a clear pleading in his plaint to the effect that taking advantage of recording of certain portion of the disputed land in the name of the son of the original owner i.e. defendant No. 3 in bata Plot No. 110/1646 extending to Ac. 0.035 decimals, the defendant Nos. 1 and 2 along with their follower with a view to grab the suit property wanted to oust the plaintiff from the suit land and with such motive the defendant Nos. 1 and 2 with the collusion of defendant No. 3 created registered sale deed in favour of the defendant No. 1 and with the help of such sham document initiated a Criminal Misc. Case bearing No. 56 of 2002 before the Executive Magistrate, Biramaharajpur. Suppressing the material facts of existence of different structures of the plaintiff over the suit land obtained an ex parte order under Section 144 of the Code of Criminal Procedure and utilizing the said order criminally trespassed over the suit land on 5.9.2002 with the help of their followers and damaged the pucca fence of the plaintiff, the latrine, bath room, latrine tanki and such other establishment of the plaintiff over the suit property. The plaintiff further asserted that he has perfected title over the suit land by adverse possession by remaining over the same in open, continuous and peaceful possession by making different establishment of permanent nature over the suit land to the knowledge of the original owner without any objection. 4. In response to such claim of the plaintiff on right, title and interest by way of adverse possession, the defendant No. 1 filed a written statement denying the allegations and asserting that one Mangal Purohit purchased an area of Ac. 0.025 decimals from Dasarath Meher, the original owner and claimed that Mangal Purohit transferred Ac. 0.025 decimals of land to the plaintiff and the allegation of transfer of the suit plot in favour of the plaintiff is a myth. The defendant further claimed that Dasarath Meher, the original owner was in possession of the suit land and after him his son Ramachandra was in possession of the suit land till the date, it was transferred in favour of the defendant No. 1, who is in possession of the same till date. The defendant denied the possession of the plaintiff over the suit land and also denied his claim with regard to right, title and interest over the same. The defendant further pleaded that the settlement authorities recorded the suit land in favour of the defendant No. 3 and therefore, the allegation that the settlement authority found the possession of the plaintiff in respect of the suit land is also a myth. The defendant No. 1 also denied the allegation of demolition of structure of the plaintiff. Defendant specifically pleaded that since the plaintiff has never possessed the suit land, the question of adverse possession does not arise and submitted that the construction, if any, on the suit land was not to the knowledge of the original owner and without objection. 5. On the basis of the aforesaid pleading, the trial court framed the following vital issue as issue No. 3 "Has the plaintiff got right, title and interest over the suit land". This Court finds both the sides attacking much importance on the question of adverse possession led much evidence. 5. On the basis of the aforesaid pleading, the trial court framed the following vital issue as issue No. 3 "Has the plaintiff got right, title and interest over the suit land". This Court finds both the sides attacking much importance on the question of adverse possession led much evidence. To answer the said issue, the trial court while deciding the question of right, title and interest over the suit land arrived on the issue, mostly taking into consideration the materials available on record through pleadings as well as evidence very specifically and vividly discussing the claim of adverse possession by the plaintiff and its counter by the opposition. The discussion on issue No. 3 is quite a lengthy one and on a thorough scrutiny of discussion therein as well as observations and the findings of the trial court, it clearly reveals that even though no specific issue was framed with regard to the claim and objection of the parties on the question of adverse possession, but most of the discussion made seriously and genuinely taking the question of adverse possession only. It is also observed that the trial court has determined the issue No. 3 holding that the plaintiff has got right, title and interest by virtue of adverse possession only. Now coming back to the decision passed by the lower appellate court, this Court finds that the lower appellate court even though arrived on the point to decide the question of adverse possession, but has failed in appreciating the fact of availability of sufficient material to take up the issue of adverse possession thereby arrived at a wrong conclusion by remitting the matter to the trial court for framing a specific issue on the point of adverse possession and taking a decision thereon. 6. From the narrations hereinabove and on a thorough scrutiny of the plaint and written statement as well as the discussions made in relation to issue No. 3 by the trial court, this Court is of the firm view that there exists sufficient materials to decide the question of adverse possession. In view of the availability of sufficient material facilitating decision on the particular issue raised by the lower appellate court in exercise of power under Order 41, Rule 24 or Order 41, Rule 25 of the Code of Civil Procedure and decide the matter on its own merit. In view of the availability of sufficient material facilitating decision on the particular issue raised by the lower appellate court in exercise of power under Order 41, Rule 24 or Order 41, Rule 25 of the Code of Civil Procedure and decide the matter on its own merit. Thus, there was no occasion for the lower appellate court to remand the matter for framing the particular issue and remitting back the L.C.R. after arriving at a finding on the said issue for the decision by the Lower Appellate Court. 7. Law has been fairly well settled in the matter of remand of a case on specific issues. Here are certain decisions already rendered by this Court as well as the Hon'ble Apex Court on the subject. In the case of Rushi @ Rusi Behera and another v. Madan Behera and another, 1986 (I) OLR-198, this Court in similar situation came to hold that the appellate court is required first to make endeavour to answer the disputed issues and where in spite of such findings it would not be in a position to come to a conclusion either way, then the Court is required to go to decide by remanding the matter. Similarly, in another decision in the case of Balaram Das and others v. Ganesh Karan and another, 1998 (2) OLR-598, this Court in deciding a similar nature of issue came to hold that the lower appellate court is required to arrive at a finding that the issue already framed is sufficient to cover the new issue framed and before remanding a matter further it must also come to a conclusion that the evidence on record would not be sufficient to cover the new issue sought to be decided. Similar is the view of this Court in the case of Chennuru Gouri Varaprasad Babaji v. State of Orissa and others, 2005 (2) OLR-618. Further, in a case in between Hata Swain (dead) his legal heir Ramesh Ch. Swain and others v. State of Orissa, 2012 (Supp.-II) OLR-411, this Court again considering the similar situation has come to a conclusion that the order of remand cannot be made for the purpose of enabling party to fill up lacuna. Further, in a case in between Hata Swain (dead) his legal heir Ramesh Ch. Swain and others v. State of Orissa, 2012 (Supp.-II) OLR-411, this Court again considering the similar situation has come to a conclusion that the order of remand cannot be made for the purpose of enabling party to fill up lacuna. In the case of Sayeda Akhtar v. Abdul Ahad, 2003 AIR SCW 3680, the Hon'ble Apex Court in paragraph-13 came to hold that there cannot an arbitrary order of remand without satisfying the conditions under Rule 23, 23-A or 25 of Order 41 of the Code of Civil Procedure. The Hon'ble Apex Court in such contingency held the order of remand is bad. 8. Under the circumstances and taking into consideration the consistent view of this Court as well as the Hon'ble Apex Court, quoted hereinabove, this Court while interfering in the impugned order sets aside the direction part of the lower appellate court passed in R.F.A. No. 22 of 2004 in remitting back the matter to the trial court for the purpose mentioned therein and further directs the lower appellate court to take up the issue itself and decide the question of adverse possession on the basis of materials already available on record and affording opportunity of hearing to the counsel appearing for the parties. The writ petition stands allowed with the direction made hereinabove but with no order as to cost.