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Himachal Pradesh High Court · body

2019 DIGILAW 945 (HP)

Sesh Ram v. Bimla Devi

2019-07-12

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The entire fulcrum, of, the res-controversia, whereupon, the contesting litigants, stand engaged, stands comprised in (a) qua after, the, execution of Ex.PW2/A, by the predecessor-in-interest of the defendant, namely, one Prakash Chand, (b) whether his share in the suit khasra number(s), yet remained intact, with the consequential effect, whether, the plaintiffs are entitled, vis-a-vis, the espoused decree. Both the learned courts below declined, relief to the plaintiffs, wherefrom, the instant second appeal hence has arisen. However, a perusal of the verdicts, concurrently recorded, upon, Civil Suit No. 30/96, by the learned trial Court, and, thereafter, upon, Civil Appeal No. 177-P/XIII/04/2K, by the learned first Appellate Court, (c) disclose(s), vis-a-vis, both the learned Courts below, for hence non suiting the plaintiff, assigning a reason (d) qua rather there being an invalid partition, of suit khata No.9 min into two different khatas, inasmuch, as, initially into Khata No. 355, and, 358, thereafter into 486 and 489. 2. Without delving deep into the merits, of the afore reason, assigned concurrently, by both the learned courts below, rather the overwhelming factum probandum, hence, directly appertaining, to the res controversia, engaging the contesting litigants, (a) is, contrarily embodied, in, whether in contemporaneity, vis-a-vis, the execution of Ex.PW2/A, by one Prakash Chand, hence, thereafter his still retaining or not retaining, rather in the suit khata, and, in the suit khasra numbers, hence, any share therein. Since, the afore computations, are required to be made, upon, an allusion being made, vis-a-vis, the revenue records appertaining, to the stage whereat Ex.PW2/A, stood executed, inter se, the afore Prakash Chand, and, the vendee(s) therein, (b) and, also from, the, subsequent thereto jamabandis, as, appertaining to the suit khata or suit khasra number, and, also theirs carrying reflections, hence, squarely, and, precisely appertaining, to the share, of the afore Prakash Chand, being yet left intact therein. Lamentably, the afore preeminent factum probandum, has disappeared into oblivion, as, both, the learned courts below, appear, to untenably proceed to assign merit, to, the impermissibility, of, the afore sub division, of the, initially joint Khata No.9 into Khata No.355 and 358, and, thereafter into 486, and, 489, (c) obviously leaving aside, the afore requisite computations, and, calculations, for thereafter hence both rather determining, whether the plaintiffs, are entitled for, rendition of a decree, for permanent prohibitory injunction, (d) given Prakash Chand, the predecessor-in-interest of the defendant, not being, left in the suit khasra number, rather any share therein, and, whereupon, the plaintiffs would stand validly entitled, for, rendition, of, the, espoused decree, (e) or upon Prakash Chand, and, subsequently his successors-in-interest, even after execution, of Ex.PW2/A, being yet left with a share, in, the, suit khata or in, the, suit kahsra numbers, thereupon, the requisite espousals would be, not accorded. Reiteratedly, the afore computation, is required to be made, in the afore manner, and, after allusions being made, to, the apposite jamabandis, as, appertaining to the suit khasra number or the suit khata, and, patently they remained rather unedeavoured, whereupon, the hereafter sequels, hence, stands sparked. 3. Even though, the afore infirmity, has constrained this Court, to, in its entirety, hence, remand the lis to the learned trial Court, for enabling the latter, to make, the afore computations, and, it thereafter rendering or declining, the espoused relief to the plaintiff, (I) as, all the issues, are, visibly appertaining, to the afore factum probandum, and, are hence insegregable and interlinked, (ii) and, hence in exception, to the principle, vis-a-vis, there being no wholesale remand, of, the lis, rather the afore insegragability(ies) or interconnectivities, inter se, all the issues, and, appertaining to the afore espoused relief, also constrain this Court, to, in its entirety, hence, remand the lis, to the learned trial Court. 4. However, the learned counsel, appearing for the defendants/respondents, has contended, with much vigour, before this Court, (i) that the making of any order, of remand, would be beyond the judicial, terrain, hence encapsulated in the verdict, rendered by the Hon'ble Apex Court, in a case titled as Syeda Rahimunnisa vs. Malan Bi (dead) by legal representatives and another, (2016) 10 SCC 315 , given, in the relevant paragraph Nos. 25 to 45 thereof, paras whereof stand extracted hereinafter:- "25. 25 to 45 thereof, paras whereof stand extracted hereinafter:- "25. A three-judge Bench of this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs., (2001) 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under: "9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait, (1997) 5 SCC 438 , Panchugopal Barua v. Umesh Chandra Goswami, (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722 ) 10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity. Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and (ii) the High Court records reasons for its such satisfaction. 12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means - of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with - technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta, (1928) AIR PC 172, the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. In Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., (1962) AIR SC 1314 the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju, (1951) AIR Madras 969: "When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis". 25. Again in the case of Thiagarajan And Others vs. Sri Venugopalaswamy B. Koil And Others, (2004) 5 SCC 762 , a two Judge Bench of this Court in paragraphs 17, 24, 25 and 26 observed as under: "17. Sub-section (5) of Section 100 CPC says that the appeal shall be heard on the question so formulated and the respondent shall at the hearing of the appeal be allowed to argue that the case does not involve such a question. The proviso states that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it if it is satisfied that the case involves such question. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law. 24. In the instant case, the High Court at the time of final hearing formulated five more questions of law as extracted above after hearing the counsel for both sides having miserably failed to record the reasons for formulating the other substantial questions of law. 24. In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100 CPC. 25. In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material. 26. To say the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible". 27. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was possible". 27. Reverting to the facts of the case at hand and keeping in view the aforesaid principles of law in mind, we find that the High Court while admitting the second appeal had formulated the following questions: (1) Whether the finding of the Court below, that the suit site on O.S.No.53/93 in S.No.35/5, Ex.C.I AI and the leased site, surrendered by P.W.6 in S.No.35/5 CI A 19 arc one and the same, is vitiated by its failure to consider the admissions of D.W.I and the relevant documentary evidence, which establish that there was a sub-division of S.No.35/5, the suit site is S.No.35/5, CI Ex.A.I being a Government poramboke land and the site of the defendant classified as a "Darga Burial Ground Mosque", each distinct and different from the other? Admissions of D.W.I:- (2) Whether the Court below have failed to see that Ex.A.2 (Gift deed being a thirty year old document, the presumption under Section 90 of Evidence Act applies, both with regard to execution and attestation, and as such the opinion of the trial Court that it is suspicious document, is untenable and unsustainable in law? (3) Whether the lower appellate Court erred in law in not framing proper points for consideration, on the validity of Ex.A.2 gift deed and the sub- division of suit property S.No.35/5 C1A1, as required under Order 41 Rule 31 C.P.C. and as such the Judgment of the lower appellate Court as a final Court of fact is vitiated by errors of law? (4) Whether the lower appellate Court has erred in law, in holding that Ex.A2 gift deed is invalid, because the property gifted is poramboke, when the Government itself (second defendant) has not disputed either the long possession or possessory title of the plaintiff of the suit property? (5) Whether the lower appellate Court has erred in law on the question of title, merely by adverting to Ex.A.3, Ex.A.4, Ex.A.5 - tax receipts, and the entire reasoning is based on mere guess work ignoring the relevant and clinching documentary evidence? (5) Whether the lower appellate Court has erred in law on the question of title, merely by adverting to Ex.A.3, Ex.A.4, Ex.A.5 - tax receipts, and the entire reasoning is based on mere guess work ignoring the relevant and clinching documentary evidence? (6) Whether the finding of the lower appellate Court that P.W.6 (plaintiff's son) did not vacate the site even after the lease period of the site S.No.35/5 C1A19 of D.I is not based on any evidence except the word of D.W.2 (no witnesses wee examined) and the conclusion reached by it that the suit site in O.S.No.53/93 and the leased site are the same, is contrary to the evidence on record? (7) Whether the lower appellate Court has erred in law in its failure to consider the admission of D.W.2 himself that his father encroached into the plaintiff's site and was issued B-Memos and paid the penalty, which conclusively establishes that the two sites are different and not one and the same? (8) Whether the very approach of the lower appellate Court is essentially erroneous and its findings are liable to be set aside ( AIR 1992 S.C. 1604 )? 28. In our considered opinion, the aforementioned questions cannot be regarded as satisfying the test of being a "substantial questions of law" within the meaning of Section 100 of CPC. These questions, in our view, are essentially questions of fact. In any event, the second appeal did not involve any substantial questions of law as contemplated under Section 100 of CPC and lastly no case was made out by the respondents before the High Court for remanding of the case to the trial court for de novo trial in all the civil suits. This we say for following reasons. 29. Firstly, when the trial court and the first appellate court on appreciation of evidence concurrently held in three civil suits filed by the respondents that they failed to prove their title over the suit-land and further in two civil suits filed by the appellants that they were able to establish their relationship of landlord and tenant in relation to the suit-land, such findings, in our opinion, were binding on the High Court being concurrent in nature. 30. 30. Secondly, none of the findings of the two courts below were perverse to the extent that no judicial person could ever come to such conclusion and that these findings were not in conflict with any provision of law governing the issue and that the findings were also not against the pleadings or evidence. In this view of the matter, in our view, these findings were not capable of being set aside by the High Court in exercise of its second appellate jurisdiction under Section 100 CPC, rather they were binding on the High Court. 31. Thirdly, apart from what is held above, the questions formulated were neither debatable nor arguable and nor did they involve any question of law which could be said to arise in the case. In other words, sine qua non for admitting the second appeal was existence of "substantial question of law in the case" and therefore unless the questions framed were debatable, or/and arguable or/and involving any legal question, the High Court had no jurisdiction to formulate such questions treating them to be substantial question of law. Indeed the High Court had the jurisdiction under subSection (5) of Section 100 of CPC to examine at the time of hearing as to whether the questions framed were substantial questions of law or not and whether they arose out of the case, but the High Court failed to do so. 32. Fourthly, having formulated the questions (though wrongly), the High Court went on to discuss all the issues in 59 pages as if it was hearing first appeals and instead of answering the questions, set aside the judgment/decree of the two courts below and proceeded to remand the cases to the trial court for de novo trial in all civil suits. In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court. 33. 33. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds? 34. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent's favour. 35. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect. 36. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals. 37. We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court. 38. Indeed, it is clear from mere reading of the pleadings. The main case set up by the respondents for claiming title over the suit-land was founded only on the plea of adverse possession against the State. In other words, the respondents' case was that they acquired title over the suit-land on the strength of their adverse possession in the suitland through their predecessors who were in continuous possession over the suit-land for the last 100 years qua state. The respondents did not claim title on the strength of any grant or Lease Deed or Patta etc. issued by the State in their favour. 39. The only question which, therefore, arose for consideration before the courts below was whether the respondents were able to establish their adverse possession over the suit-land as against the State so as to entitle them to claim title in their favour over the suit-land. 40. The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. 40. The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointed out. 41. We also find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members of respondents' family was of no relevance. 42. In these circumstances, the alleged gift whether executed between the two members of respondents' family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC. 43. In the light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside. 44. As a consequence, these appeals succeed and are hereby allowed. The impugned judgment is set aside and the judgment/decree of the first appellate court and that of the trial court are hereby restored. 45. 44. As a consequence, these appeals succeed and are hereby allowed. The impugned judgment is set aside and the judgment/decree of the first appellate court and that of the trial court are hereby restored. 45. The respondent no.1 to pay costs quantified at Rs.10,000/- to the appellants." (a) hence embodying therein, the principles, appertaining to, the validity, of, making, of, an order of remand, by the Appellate Courts concerned, vis-a-vis, the remandee court, and, the principles contemplated therein postulating (b) qua no order of remand by the appellate court, vis-a-vis, the remandee court, being permissible, (c) upon, no litigating party raising, the requisite plea either before the appellate court or the High Court, unless grave prejudice is encumbered, upon the complaining litigant, (d) nor an order of remand, being made by the appellate court, vis-a-vis, the remandee court, more so, when the complaining party, despite, participation in the lis, throughout, since it travelling from the learned trial Court, upto the High Court, rearing the requisite complaint, (e) omission of framing of substantial question of law, appertaining, to, remand, also necessarily, barring the appellate Court, to make, an order of remand, vis-a-vis, the remandee court. Moreover, the High Court, rather than proceeding, to make an order of remand, hence, proceeding to evaluate, the, oral or documentary evidence, as, appertaining to the substantial questions of law. In summa, the overriding principle, as, enunciated in paragraph No.28 of the verdict supra, for the appellate Court, being barred, to make an order of remand, is, embodied, in the preeminent fact, vis-a-vis, satiation being meted, vis-avis, the pre-eminent tests (f) qua an, apt therewith hence substantial question of law, within, the domain of Section 100 rather arising, for determination, inter se the contesting litigants. (g) The finality of determination of question of fact, inter se, the contesting litigants also constituting a valid reason, for hence forbidding, the appellate Court, to make an order, of remand, vis-a-vis, the apposite lis, qua the remandee court, (h) unless, the findings are concluded to be perverse, inasmuch, as no judicial person could ever come, to such conclusion, vis- a-vis, concurrently recorded verdicts, by both, the learned courts below. Bearing in the mind, the, afore principles, the afore concurrently assigned reason(s), by both the learned courts below, for declining the relief to the plaintiffs/appellants herein, rather are/is ex-facie per se perverse, and, absurd, (i) as the afore requisite, computations, as, enjoined to be made, from, the relevant records, appears to be relegated into realm, of obscurity rather by both the learned courts below, for hence thereafter both, coming to an apt conclusion, vis-a-vis, the entitlements or disentitlements, qua the espoused relief. (j) More so, when the afore assigned reason, does not impinge, upon, the core rescontroversia, and, rather is outside, the realm, of, the core res controversia, hence, engaging the contesting litigants, (k) and, when the substantial question of law, hence squarely, and, precisely, rather, is, within, the domain, of, the lis, engaging the parties at contest, and, when within, the, domain thereof, no apposite calculations or computations, are, made by both the learned courts below, and, rather the afore reason(s) assigned, by both, the learned courts below, is/are, outside the domain, of the innate nuance, of, the core res-controversia, engaging them, (l) thereupon, unless, the afore computations, and, calculations, are, directed, to be, hence initially made by the learned remandee court, and, when thereafter it would be, possible, to determine any, lacunae in the computations, thereupon, it would not be befitting, for this Court, to, make the requisite computation, rather it would be befitting for this Court, to make an order, of, remand, vis-a-vis, the afore core res-controversia, vis-a-vis, the learned trial Court. Moreover, any prolonged participation of the contesting litigants, hence, both before the learned trial Court, and, thereafter before the learned First Appellate Court, and, subsequently before this Court, and, when, though, the substantial question, of, law, do not, stricto sensu embody the afore core res-constroversia, (m) yet would not forbid this Court, in view of the gravity of the lis, and, the gross misunderstanding, by both the learned courts below, vis-a-vis, the core res constroversia, engaging the contesting parties, and, with the afore concomitant ill-effects, hence, to make an order of remand, vis-a-vis, the remandee court, as non meteing, of an answer thereto rather by both the learned courts below hence scuttling the vigour, of, the res controversia, and, also for abundantly satisfying, the, conscience of this Court. Preeminently also hence the formulated substantial questions, of, law are not amenable, dehors the afore computation, for any answer being meted thereto. 5. For the foregoing reasons, the instant appeal is allowed, and, the judgments impugned before this Court, are, set aside. Consequently, the matter is remanded to the learned trial Court to decide the lis afresh, and, to also determine the afore factum probandum. The afore exercise shall be done within six weeks, from, the receipt of the records. The parties are directed to appear before this learned trial Court on 22nd August, 2019. All pending applications also stand disposed of.