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2019 DIGILAW 656 (ORI)

Bhujuram Murmu v. Mohan Majhi

2019-12-09

K.R.MOHAPATRA

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JUDGMENT : K.R. Mohapatra, J. This appeal has been filed under Order 43 Rule 1(u) of the C.P.C. assailing the judgment and order dated 8.11.2001 passed by learned Ad hoc Addl. District & Sessions Judge, Mayurbhanj, Baripada in Title Appeal No. 3/16/01/99, whereby he remitted the matter back to the trial court for fresh disposal with certain observations. 2. Mr. Mishra, learned Senior Advocate appearing for the appellants contended that the appellants as plaintiffs had filed Title Suit No. 167 of 1993 for declaration of title in respect of the suit land more-fully described in the plaint schedule and for permanent injunction against the defendants. The suit was decreed by learned Civil Judge vide judgment and decree dated 06.03.1999 and 19.3.1999 respectively. Assailing the same, the defendants filed an appeal under section 96 of C.P.C and the same was transferred to the file of learned Ad hoc Addl. District & Sessions Judge, Baripada and registered as Title Appeal No. 3/16/01/99. It is his contention that learned Ad hoc Addl. District Judge, Baripada without making any endeavour to decide the appeal on merit basing upon the materials available on record, most mechanically remitted the matter back to the learned trial court for fresh adjudication and further directed that learned trial court may afford opportunity to the parties for adducing further evidence in support of their respective cases. Order 41 Rule 23/Rule 23-A or Rule 25 of C.P.C does not permit the court to exercise such power in a routine manner. It should be used sparingly and in appropriate case, where the appellate court is not in a position to adjudicate the matter on the basis of materials available on record. It is his submission that the defendants have not raised any such contention either to adduce further evidence or that the materials available on record were not sufficient to adjudicate the matter. Further, no petition under Order 41 Rule 27 C.P.C was also filed. Thus, learned Ad hoc Addl. District Judge cannot assume power to confer such a right to the defendants and allow the defendants to patch up lacuna in the case by affording them an opportunity to adduce further evidence. In that view of the matter, the order of remand is not sustainable and the same is liable to be set aside. 3. District Judge cannot assume power to confer such a right to the defendants and allow the defendants to patch up lacuna in the case by affording them an opportunity to adduce further evidence. In that view of the matter, the order of remand is not sustainable and the same is liable to be set aside. 3. Smt. Biswal, learned counsel for the respondents contended that learned appellate court has made its best endeavour to adjudicate the matter basing upon the materials available on record. On the analysis of the materials available on record in detail, learned appellate court came to a conclusion that the trial court ought to have given opportunity to the parties to adduce further evidence and more particularly to adduce evidence to the effect that even after 1929 settlement till the land was recorded in the name of defendants in the current settlement, the respondents (defendants) had right, title and interest over the suit land. In that view of the matter, the impugned order directing the trial court to give opportunity to the parties to adduce further evidence cannot be said to be erroneous or without jurisdiction. Thus, she prays for dismissal of the appeal. 4. In course of hearing, Mr. Mishra, learned Senior Advocate appearing for the appellants relied upon the decision of this Court in the case of Rushi and another Versus Madan Behera and another, reported in 1986 (I) OLR 198 , wherein this Court has observed at paragraph-8 as follows: “8. Order 41, R.23, C.P.C., provides for remand by the appellate court where the trial court disposed of a suit on a preliminary issue. Order 41, R.25, C.P.C., authorises remand on specific issue only where the finding on the issue is to be returned to the appellate court for disposal. Order 41, R.23A, C.P.C., envisages remand after reversal of a decree by the appellate court. Where the appellate court clearly expresses : ".....Therefore without expressing any opinion on the evidence adduced by the parties, on the different issues framed in the suit, I am inclined to send back the record to the lower Court for fresh disposal in the light of the observations made above......." It is not reversal of a decree merely because the decree is set aside. The appellate court is required first to make the endeavour to answer the disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial. It should be remembered that early conclusion of a 'lis' on merit is the public policy. In the name of 'ends of justice' or 'proper adjudication' the appellate court is not to avoid the onerous responsibility cast on it by the Code. I am satisfied that the appellate court has failed to exercise the appellate power in this case. I may not be understood to express that the appellate court has no power to remand on the facts of this case. It should have first assessed finding and then given the reason why it would not be in a position to give a finding. In that case only an order of remand may be justified. Otherwise, remand may amount to misuse of the power vested in the Court. Merely because a power is vested, the appellate court is not to exercise it as it desires.” (emphasis supplied) 4.1 He has also relied upon the decision of this Court in the case of Harmohan Misra v. Anapurna Dibya, reported in 1987 (2) OLR 157, wherein this Court at paragraphs-20 and 21 has observed as under: “20. Now, I would take up the next question as to whether the order of remand relating to Title Suit No. 87 of 1972 can be upheld. Rules 23, 23-A and 25 of Order 41 of the Code deal with the powers of remand by an appellate court. Rule 23 empowers the appellate court to pass an order of remand if the trial court has disposed of a suit upon a preliminary point and the decree is reversed in appeal” directing what issue or issues are to be tried after the remand. Rule 23-A which has been substituted by the 1976 Act is more comprehensive under which a suit may be remanded to the lower court even though such court disposed of the entire case on merits. Rule 23-A which has been substituted by the 1976 Act is more comprehensive under which a suit may be remanded to the lower court even though such court disposed of the entire case on merits. In other words, a remand under this rule is in-the nature of an open remand under which the whole case is remitted back to the lower court for re-trial subject to no restrictions except those specifically imposed by the appellate court, such as, not to take fresh evidence or the like. See Sanatan Mohapatra and others –v-Hakim Mohammad Kazirn Mohmmad and others, [A.I.R. 1977 Orissa 194.]. In a remand under rule 25, the appellate court retains the matter on its file and only calls for a finding by the lower court on some issue(s) when the lower court has omitted to frame or try any issue or to determine any question of fact essential to the right decision of the suit upon merits. Otherwise, where the evidence on record is sufficient to enable the appellate court to pronounce the judgment, the appellate court even after re-stating the issues has to finally determine the suit (Rule 24). 21. We have seen that in this case the parties have led all evidence which they thought fit to bring on the record in support of their respective cases. It is neither a remand under rule 23-A as re-trial has not been considered necessary or ordered, nor it is a case where the trial court has omitted to frame or try any issue or determine any question of fact. It is a case where, on the evidence on record, the trial court held that the parties failed to establish their respective cases. Simply if a higher court feels that better evidence should have been brought on record in such situation, in my view, it cannot exercise the power of remand This is also not a case where any party wanted to take advantage of rule 27 by giving additional evidence. Simply if a higher court feels that better evidence should have been brought on record in such situation, in my view, it cannot exercise the power of remand This is also not a case where any party wanted to take advantage of rule 27 by giving additional evidence. For example, in a suit based on a handnote where the defendant denies its execution and the plaintiff does not choose to examine an expert and on that account the suit fails, should the appellate court in exercise of the power of remand direct for appointing a handwriting expert In my opinion, that would amount to filling up the lacuna in the case and the action would be wholly without jurisdiction. 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 be, then the claim having not been proved would not be decreed and there the matter would end. Where 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.” (emphasis supplied) 5. I have heard learned counsel for the parties and perused the materials available on record. 6. On perusal of the materials available on record as well as the impugned order, it appears that the suit land was originally recorded in the name of one Govinda Majhi, who had three sons. The plaintiffs are legal heirs of one of his son, namely, Thakura Majhi. The defendants claiming to be the legal heirs of one Thakura Majhi (not the predecessors of plaintiffs) of the said village claimed that their father, Thakura, was in possession of the suit land till his death and after him the defendants were possessing the same and in due course, got the suit land recorded in their name in the hal settlement. Accordingly, the plaintiffs (appellants) filed a title suit and it was decreed in favour of the plaintiffs. Accordingly, the plaintiffs (appellants) filed a title suit and it was decreed in favour of the plaintiffs. Learned appellate court while adjudicating the appeal, has come to a conclusion that the doctrine of forward and backward presumption is not applicable to the case at hand. It further held that the evidence available on record is not sufficient to come to a conclusion that the plaintiffs have right, title and interest over the suit land and the learned trial court should have called upon the plaintiffs to establish as to how the case land came to be recorded in the name of Thakura Majhi, father of defendant no.1. Learned appellate court also observed that if necessary, the original records could have been called for and on that basis, it came to a conclusion that there is no sufficient evidence on record concerning title and possession of parties over the suit land. It appears that learned first appellate court has neither discussed the evidence on record nor discussed the basis on which it arrived at a conclusion that the evidence available on record is insufficient to decide the lis between the parties. Merely observing that the evidence on record is not sacrosanct to exercise power under Order XLI Rule 23, 23-A or 25 of C.P.C. Learned first appellate court while answering Issue Nos. 4 and 5 came to a finding that basing upon the presumptions of 1929 Settlement, learned trial court decreed the suit. It should have called upon the plaintiffs to prove as to how the suit land came to be recorded in the name of Thakura Majhi, the father of defendant no.l. As observed in the case of Harmohan Misra (supra) simply because the higher court feels that better evidence could have been brought on record, it cannot exercise the power of remand. It is not the duty of the Court to 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 cannot be extended that far. If plaintiff fails to prove his case then he would not be entitled to the decree prayed for and the matter would end there. Thus, it is the duty of the court to make its best endeavor to arrive at a conclusion on the basis of material available on record, which is conspicuously absent in this case. If plaintiff fails to prove his case then he would not be entitled to the decree prayed for and the matter would end there. Thus, it is the duty of the court to make its best endeavor to arrive at a conclusion on the basis of material available on record, which is conspicuously absent in this case. 7. Further, on perusal of the record, it appears that none of the parties had contended that the materials are not sufficient for adjudication of the matter. Neither of the parties had also filed petition for adducing additional evidence nor it does appear from the discussion of the court as to how the materials are insufficient to decide the lis between the parties, more particularly when the trial court on the basis of such materials available on record has passed the judgment and decree in favor of the plaintiffs. As discussed earlier, learned first appellate court has not made any endeavor to adjudicate the matter on the basis of the materials available on record and thereby failed to exercise the jurisdiction vested in him in accordance with law. 8. In that view of the matter, I am of the firm opinion that learned lower appellate court has not acted in the manner required under law to set aside the impugned judgment and decree and remit the matter back to the trial court for fresh adjudication in accordance with the observation made therein. 9. Accordingly, the impugned order is set aside and the matter is remitted back to the 1st Appellate Court to adjudicate the appeal afresh giving opportunity of hearing to the parties. Since this appeal is of the year, 1999, the 1st Appellate Court shall do well to adjudicate the matter as expeditiously as possible preferably within a period of six months from the date of first appearance of the parties. 10. The Misc. Appeal is accordingly disposed of. L.C.R. be sent back immediately.