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2015 DIGILAW 825 (JHR)

Md. Mansoor Alam v. Martin Marandi

2015-07-21

AMITAV K.GUPTA

body2015
ORDER : 1. This appeal has been preferred against the judgment dated 23.06.2007 passed by 2nd Additional District Judge, Deoghar, in Title Appeal no. 21 of 2007 whereby the matter was remitted back to the trial court for fresh decision on issue whether the suit is maintainable or not. 2. Learned counsel for the appellant has submitted that the trial court in title suit no. 77 of 2002 has decreed the suit and had framed one of the issues as –‘is the suit maintainable or not’ and decided the same on the basis of the pleading and material evidence on record. That the plaintiff had instituted the suit for declaration of title and recovery of possession of the suit property known as ‘Nuna Villa’ and further for issuance of direction that the defendant be directed to deliver the vacant possession of the suit property to the plaintiff. It is submitted that the impugned judgment of remand has not been passed in term of Rule-23, Rule 23A and Rule 25 of the Order XLI of the Code of Civil Procedure (for short ‘the C.P.C.’) as without recording any finding as to how the trial court failed to give any finding regarding maintainability of the suit i.e. issue no. 1, the lower appellate court has remanded the matter without appreciating the factual evidence on record. That it is cardinal principle that matter can be remanded only when it is found that some facts, which are vital and essential for adjudication, have not been decided or adjudicated by the court. That the first appellate court is the final court for deciding and determining the question of facts and law and in the absence of any finding that essential evidence or materials were not on record to adjudicate the issue, it should not have remanded as it has ample jurisdiction to consider the material facts and evidence on record to determine whether the issue was maintainable or not. He has also relied on the decision in the case of Bachahan Devi and Another Vs. Nagar Nigam, Gorakhpur and Another reported in (2008), 12, SCC, 372 in support of his contention. On the above ground, it has been prayed that the impugned order be set aside with a direction to the appellate court to pass necessary order on the basis of the material evidence on record. 3. Nagar Nigam, Gorakhpur and Another reported in (2008), 12, SCC, 372 in support of his contention. On the above ground, it has been prayed that the impugned order be set aside with a direction to the appellate court to pass necessary order on the basis of the material evidence on record. 3. On the other hand, learned counsel for the respondents submitted that it would be evident that though the appellant has sought declaration of right, title and interest but in the pleading, he has stated that the defendant is a tenant and evidence to that effect has also been led. That the witnesses of the plaintiff-appellant have also admitted that the defendant is the tenant and as such the filing of the suit for declaration of right, title and interest and further seeking relief that the defendant hand over the vacant possession of the premises was an issue which was not decided by the trial court. It is urged that, it is the admitted position that the vendor of the plaintiff from whom he had acquired the said land had filed an eviction suit which was subsequently withdrawn and the lower appellate court had considered the same and rightly passed the order of remitting the matter to the trial court for adjudicating on the issue whether the suit is maintainable in its present form or not. That the order does not require any interference by this court. 4. Heard. Perused the impugned order and material available on record. 5. Admittedly, the suit was filed for declaring the right, title and interest of the plaintiff and for handing over the possession of vacant land by the defendant. There is pleading that the said property was acquired from the Vendor Md. Sakir Khan and Nausaba Praveen, who had filed eviction suit against the defendant and which was subsequently withdrawn, whereafter, the property, was sold to the plaintiff-appellant. The trial court has discussed the material evidence which is on record. The defendant has also made a counter claim on the property asserting that he was the sole owner of the property by virtue of adverse possession. Essential evidence and material is available on record and the appellate court had ample jurisdiction to record its finding on the issue whether the suit is maintainable or not. It is well settled that order of remand should not be passed in a routine manner. Essential evidence and material is available on record and the appellate court had ample jurisdiction to record its finding on the issue whether the suit is maintainable or not. It is well settled that order of remand should not be passed in a routine manner. The first appellate court has the power to analyze the factual position and to decide the issue or an additional issue. It is only when it is found that the issue requires additional evidence then the appellate court in exercise of judicial discretion can remand the matter to the court below. In the instant case, it is noticed that the evidence and issues have been discussed by the trial court and there is no requirement for remitting the matter to the trial court on the aforesaid issue, as the fact essential for determining the issue as noted above, was available on record, and no additional evidence was required to be taken. The issue regarding maintainability has also been framed by the trial court and if the appellate court was of the view that the issue has not been correctly dealt with, it could have determined and adjudicated by giving its finding on the said issue. 6. In the given facts and circumstances, the order of remand is unwarranted, in in view of the fact that the discretion has been exercised without appreciating the material evidence on record. The essential fact and material have been discussed in the judgment of the trial court as per evidence on the record. 7. In view of the discussions made above, the impugned order dated 23.06.2007 is set aside and the lower appellate court is directed to decide the issue as per the material evidence on record after giving an opportunity of hearing to both the parties. Parties shall appear in the court below latest by 28th August, 2015, whereafter the court below shall decide the matter within six months from the receipt of copy of this order. It is made clear that any discussions and observation made in this order shall not prejudice the court below. 8. Office is directed to send the lower court records to the court below. 9. With the aforesaid direction, the appeal is hereby allowed.