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2016 DIGILAW 356 (ORI)

Hiradhar Pati v. Sumati Behera

2016-05-05

D.DASH

body2016
JUDGMENT : This appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Bargarh in R.F.A. No.11 of 2003 remanding the suit, i.e., Title Suit No.19 of 2001 to the Court of the learned Civil Judge (Jr. Division), Bargarh after setting aside the judgment and decree passed by the learned Civil Judge (Jr. Division), Bargarh in decreeing the suit filed by the present appellant as the plaintiff declaring his right, title and interest over the suit land and entitling him to get the vacant possession of the suit land from the defendant-respondents, for reassessment of evidence on record as regards issue nos.2,3 and 4 referring to the observations made therein. 2. Facts necessary for the purpose of this appeal are as under: Plaintiff stated that the suit land originally belonged to one Krushna Chandra Khamari, who was the owner in possession of the same. He sold a portion of land measuring Ac.0.03 dec. to the defendant no.3 under registered sale deed dated 26.03.1981 and put him in possession of the same. Defendant no.3 in turn sold the same to the plaintiff by registered sale deed dated 09.12.1982 and delivered possession of the said land to him. Thus, the plaintiff claims to have become the owner of the suit land and in possession of the same on the strength of his purchase. It is further stated that said Krushna Khamari also sold Ac.0.03 dec. of land from M.S. Plot No.2177 and Ac.0.01 dec. from M.S. Plot No.2195 in total Ac.0.04 dec. to one Kanhai Padhan by registered sale deed dated 27.02.1981. The plaintiff again claims to have purchased the said 4 dec. of land from that Kanhai Padhan by registered sale deed dated 09.12.1982. Thus his case is that having purchased the suit land on two occasion from above two vendors, he remained in possession of the entire Ac.0.07 dec. of land described in schedule ‘A’ of the plaint which is the subject matter of the suit. It is next stated that the defendant no.1 having no right, title, interest and possession on a fine morning encroached upon the land to the extent of Ac.0.03 dec. and defendant no.3 encroached upon the land to the extent of Ac.0.01 dec. and constructed a kachha house with tile roof over the same. It is next stated that the defendant no.1 having no right, title, interest and possession on a fine morning encroached upon the land to the extent of Ac.0.03 dec. and defendant no.3 encroached upon the land to the extent of Ac.0.01 dec. and constructed a kachha house with tile roof over the same. The plaintiff having noticed such unauthorized construction when raised protest and asked them to leave the possession of the land, the response came to the effect that they have purchased the land from defendant no.3 and accordingly to have mutated the same. So, the suit has been filed. 3. The defendant nos.1 and 2 while traversing the plaint averments besides raising the technical pleas as regards lack of cause of action, the suit being undervalued, lack of pecuniary jurisdiction of the court to try the suit, specifically raised that defendant no.2 had purchased Ac.0.01 dec. of land from out of M.S. Plot No.2195 from the original owner Krushna Khamari under registered sale deed dated 24.04.1979 and continued to remain in possession as it was earlier also in his possession. Krushna Khamari having detected the possession and defendant no.2 had so executed the deed. It is also stated that defendant no.2 has been in possession of excess land of Ac.0.01 dec. since the year 1984 to the knowledge of the plaintiff and such possession is said to be open, peaceful and continuous, hostile to the interest of the plaintiff. Over this land, he advances his claim of acquisition of title by adverse possession claiming further that it has been so mutated in his name. It is next stated that defendant no.3 after purchase of the suit land from Krushna Khamari on 26.02.1981 executed a deed of transfer in respect of land measuring Ac.0.03 dec. in favour of defendant no.1 by registered sale deed in the year 2000 since that defendant no.1 was earlier in forcible possession of the suit land. The land is said to have been mutated accordingly. They challenged the claim of the plaintiff over the suit land on the strength of purchase as baseless, further pleading that the plaintiff had never possessed the suit land at any point of time. 4. Faced with such rival pleadings, the trial court framed five issues. The land is said to have been mutated accordingly. They challenged the claim of the plaintiff over the suit land on the strength of purchase as baseless, further pleading that the plaintiff had never possessed the suit land at any point of time. 4. Faced with such rival pleadings, the trial court framed five issues. Rightly, taking up issue nos.2 and 3 for decision which concern with the competing claim of the plaintiff on one hand and defendant no.1 on the other, as regards their right, title, interest and possession over the suit land, upon examination of evidence and assessment has recorded the finding in favour of the plaintiff. Practically, said finding has led the trial court to decree the suit granting the reliefs as prayed for by the plaintiff. 5. The unsuccessful defendants having moved the lower appellate court by carrying a first appeal under section 96 of the Code of Civil Procedure has become successful in getting the judgment and decree passed by the trial court set aside The lower appellate court having thus allowed the appeal has remanded the suit to the trial court for rendering the decisions afresh on those very issue nos. 2, 3 and 4 by taking up the exercise of reassessment of evidence. This is impugned in this appeal by the plaintiff of the trial court. 6. It is the settled position of law that the first appellate court as the final court of fact, is called upon to sit over the findings of the trial court impugned in the appeal in judging their correctness with reference to the evidence in the backdrop of the rival pleadings keeping in view the settled position of law governing the subject. So, for the purpose the appellate court is under definite legal obligation to have an independent examination of evidence and to assess the same in examining as to whether the reasons given by the trial court which are the soul of finding on the particular issue or issues are justified or not. So, for the purpose the appellate court is under definite legal obligation to have an independent examination of evidence and to assess the same in examining as to whether the reasons given by the trial court which are the soul of finding on the particular issue or issues are justified or not. The appellate court is required to make the endeavour to answer the issues on its own and where in spite of such attempt from all angles, it would not be in a position to come to the conclusion either way, it may take recourse to the provision of remand as contained in Order 41, Rule 23, 23-A or 25 of the Code as the case may be which it finds to be appropriate in view of its conclusion. It has been said in plethora of decisions by the Apex Court as also by this Court that the appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of the Code as an unwarranted order of remand gives the litigation an undesired lease of life which requires the avoidance. It has also been held in case of Harmohan Mishra and Another Vrs. Arnapurna Divya and Others, 1987 (II) OLR 157 that it is not the duty of a Court to necessarily record a conclusive finding and insist that the best evidence should be brought on record by the parties for that purpose. The anxiety of the Court does not extend to that extent. If the evidence would not establish the right of the plaintiff or of the defendant, as the case may, then the claim having not been proved would not be decreed and there, the matter would end. When a party with full knowledge fails to discharge the burden of proof, an order of remand is not proper to enable him to get a fresh opportunity for that omission. 7. When a party with full knowledge fails to discharge the burden of proof, an order of remand is not proper to enable him to get a fresh opportunity for that omission. 7. Learned counsel for the appellant submits that a bare reading being given to the judgment of the lower appellate court, it can well be said that the appeal has been disposed of simply for disposal sake without discharging the duty cast upon the first appellate court and the order of remand has been passed just as a matter of routine having neither gone to analyze the evidence on record touching the issues in making an endeavour to decide those. He attacks the order to be one just for the purpose of releasing the load of appeal on board and for disposal sake. Learned counsel for the respondent, on the other hand, submits that the lower appellate court has assigned reasons for the said remand and having made certain observations has thus directed the trial court to record the finding on those three issues by reassessing the evidence keeping in view those observations. Thus, he contends that no such fault is found with the order of remand. 8. In order to address the rival submissions, let me now have a look at the judgment of the lower appellate court. At this stage, it may be stated that on the crucial issues at first in the direction of the establishment of the case of the plaintiff, it has been so accepted by the trial court and that concerns with the execution of Ext.2 (sale deed dated 09.12.1982) by the defendant no.3. So in that connection at paragraph-7 of the judgment, the lower appellate court has said that though the trial court has come to the conclusion that since the execution of Ext.2 has not been challenged by the defendant no.3 herself or by her successors and thus its contents cannot be doubted with regard to their correctness yet it being a document executed by an illiterate lady, the burden of proof as regards the execution of the said Ext.2 was resting upon the plaintiff which had not been kept in mind by the trial court in examining the evidence. Therefore, it has gone to say that the evidence of P.Ws.1 and 3 need be reassessed on the point of execution of Ext.2 by the defendant no.3 to rule on its validity. It has again said that though the trial court in view of the discussion in the judgment and assessment of evidence let in by the parties has came to the conclusion that schedule ‘B’ properties have been duly transferred in favour of the plaintiff by the true owner under those valid sale deeds yet upon hearing the learned counsel for the parties at the appellate stage it has found that there remains the need to reassess the evidence on that point whether the plaintiff has been able to prove his title over schedule ‘B’ land and whether the alienations made in his favour by the true owners are valid and that the sale deeds if have been duly executed. As regards issue no.4, the conclusion almost runs in the same vein that the evidence needs reassessment to decide the issue on the score of pecuniary jurisdiction on the part of the court to try the suit, as has been raised by the defendants. 9. With the aforesaid, the lower appellate court has gone to set aside the judgment and decree passed by the trial court and remand the suit. The ordering portion which is also relevant runs as under: “The judgment and decree passed by the learned Civil Judge (Jr. Division) in Title Suit No.19 of 2001 is set aside and remand to the said court for reassessment of the evidence on record with regard to the issue nos.2,3 and 4 with reference to the observations made by this Court in the appeal and expeditious finding.” 10. The above order clearly go to show that it is not a reversal of a decree because it is so required after due examination of evidence on record and in view of the fact that the settled law has been either overlooked or wrongly applied but as reassessment of evidence is found to be necessary as to have been done in certain manner perhaps keeping some facts and circumstances in mind. The lower appellate court in the case has not at all taken up for discussion the evidence on record to examine the sustainability of the ultimate finding of the trial court on those issues; side-by-side to arrive at a conclusion at its level so as to answer those issues in finally holding whether the trial court has erred in so returning the findings at the end. This being so, the conclusion appears to be abrupt and goes without any justification. In view of the above discussion, the order of remand as passed by the lower appellate court is found to be deriving no support from any of the provisions of law as aforesaid conferring the jurisdiction upon the appellate court to pass an order of remand. The parties having exercised their rights to adduce evidence by availing all opportunities of being heard and the trial court having specifically answered each of the issues upon examination of evidence in the backdrop of the rival case at its level, the lower appellate court being the final court of fact if so felt that reassessment of evidence was necessary to decide those issues, it has thus failed to exercise said power vested in it for such reassessment of evidence in recording the finding on those issues. The order of remand for the said purpose as passed is clearly unsustainable in the eye of law. 11. In the result the appeal is allowed. The judgment dated 20.10.2009 passed by the learned Additional District Judge, Bargarh is set aside and in view of the same the appeal is now remitted to the lower appellate court for its disposal afresh in accordance with law. Looking at the age of the litigation, this Court while directing the parties to enter their appearance before the lower appellate court on 20.05.2016 to receive further instruction as regards the date of hearing of the appeal, also directs the lower appellate court to dispose of the said appeal by the end of August, 2016. Before parting, it may be made clear that whatever have been discussed and expressed hereinabove, should not be taken as any expression on the merits of the issues arising for decision and those remain confined only for the purpose of demonstrating that the remand was not required.