IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.325 of 2009 ANIRUDH CHAUBEY, S/O LATE AMAR CHAUBEY, R/O BISHRAMPUR, P.O. & P.S. JOGAPATTI, DISTRICT WEST CHAMPARAN .. PLAINTIFF/APPELLANT Versus 1. BISHWAJEET MISHRA, S/O LATE LAXMAN MISHRA 2. LOKESH MISHRA 3. ATUL MISHRA BOTH SONS OF BISHWAJEET MISHRA ALL RESIDENTS OF VILLAGE HATHIYA TOLA DEVGHRAHKTA, P.S. JOGPATTI, DISTRICT WEST CHAMPARAN .. DEFENDANTS/RESPONDENTS **** For the appellant .. M/S Bishwanath Chaudhary & Lallan Kumar Verma, Advs. For the respondents .. Mr. Shiv Kumar Dwivedi, Adv. **** /5/ 28.10.2010 Heard the counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 23.05.2009, passed by Sri Arun Kumar Srivastava, District Judge, West Champaran, Bettiah, in Title Appeal No. 69 of 2002, by which he has set aside the judgment and decree passed by the trial Court in Title Suit No. 167 of 1997 and remanded the case for consideration afresh in accordance with law after giving opportunity of hearing both the parties. 3. Plaintiff filed a suit for declaration that the sale deed, dated 13.02.1996, with respect to land of khata no. 5 - 2 - plot no. 147, area 5 katha is false, fabricated, sham, void and without consideration, which is not finding on the plaintiff. 4. The case of the plaintiff is that the land of khata no. 5, plot no. 147, area 10 katha is the khatiyani land in the share of the plaintiff. He is continuing in possession. The plaintiff fell in need of money, in 1980 and approached defendant no. 1 for Rs.5000/-. The money paid on executing deed of mortgage by conditional sale that the money shall be returned. In 1996 plaintiff fell in need of money and agreed to sell 5 katha land out of it for consideration of Rs.30,000/- and it was agreed that Rs.5,000/-, paid for mortgage, shall be adjusted and Rs.25,000/- shall be paid. Further case is that it was agreed that the amount of Rs.25,000/- shall be paid at the time of registration, but, though in the sale deed it was mentioned that the amount shall be paid at the time of execution of the sale deed, but, sale deed was executed without payment of Rs.25,000/- and have refused to appear before Registrar for admitting the document, the deed writer not returned the document and so plaintiff did not accept the document before the Registrar so notice served for computing registration. - 3 - 5. However, the defendants appeared, filed written statement and, thereafter, on the pleadings of the parties the trial proceeded, after framing nine issues, which are as follows : (i) Whether the suit as framed is maintainable ? (ii) Whether the plaintiff has got cause of action to file this suit ? (iii) Whether this suit is barred by law of limitation? (iv) Whether this suit is hit by the provision of stoppel, waiver and acquiescence ? (v) Whether the registered sale deed, dated 13.02.1996 is legal, valid operative and executed after payment of consideration money ? (vi) Whether the order, dated 14.08.1997, passed by the Collector, West Champaran, Bettiah in Case No. 14 of 1996-1997 is legal and valid according to the provision of law ? (vii) Whether the conditional sale executed by the plaintiff in favour of the defendant no. 1 is not subsisting ? (viii) Whether the defendants have paid any - 4 - amount of consideration money to the plaintiff after payment of consideration money of Rs.50,000/- in respect of the conditional sale deed, dated 17.06.1980 ? (ix) Whether the plaintiff is entitled for any other relief suited in the circumstances of the case ? 6. The trial Court after well considering the evidence of the parties gave the finding on all the nine issues and decreed the suit on contest. 7. The trial Court decided issues no. (v), (vi), (vii) and (viii) in favour of plaintiff on the ground that sale deed executed did not mention about earlier deed of conditional sale, consideration amount after deducting the amount paid for conditional sale has not been paid and boundary mentioned in sale deed makes the existing sale deed doubtful. The learned trial Court further decided issues no. (ii), (iii), (iv) and (ix) in favour of the plaintiff. 8. Against that order this appeal preferred. The appellate Court did not go into the evidence on issue, but, held that the finding recoded by the trial Court on issues no.. (v), (vi), (vii) and (viii) are wrong on the ground that there was no dispute between the parties regarding execution of - 5 - deed of conditional sale, dated 17.06.1980. The certified copy of deed of conditional sale has been marked as Exhibit “1” and both the parties have admitted the execution of sale deed Exhibits “E” and “F”, and endorsement of fact regarding acceptance of money then the question of deferring with the denial of execution of sale deed in question does not arise at all and, hence, held that trial Court has taken a wrong view regarding compulsory registration as made by Registrar of District, but, the learned Court below took a different view basing upon wrong notion of the law as well as evidence decreed the suit in question in favour of the plaintiff, which is absolutely wrong and committed error in passing such decree in favour of the plaintiff and, hence, the impugned judgment and decree of the lower Court is hereby set aside and the matter is remitted back to the learned Court below for consideration afresh according to law after opportunity of hearing to both the parties. 9. The learned counsel for the appellant has contended that the appellate Court without going into the finding of fact summarily going into the facts and evidence held that the view taken by the trial Court is wrong as the - 6 - parties have admitted the execution of the sale deed and endorsement of the fact regarding acceptance of money then question of deferring with the denial of the execution of the sale deed in question does not arise. The lower appellate Court without going into the question of fact and finding recorded on computing registration by the trial Court is set aside the judgment and order of lower Court and remanded the case. It has, further, been contended that when the evidence is available before the lower appellate Court being Court of fact it should have proceeded under Order XLI Rule 24 of the Civil Procedure Code to have appreciated the fact and circumstances to come to it’s own judgment and decided the appeal on merit and ought not to have remanded the case when there are evidence to decide appeal on merit and for which he placed reliance on decision reported in 2004(2) P.L.J.R., 755 (Ram Vinod Rai & Anr. Vrs. Most Ram Sumitra Devi & Ors.) and further the trial Court without going into evidence and without going into the finding recorded merely proceeded on Exhibit “3” admission on sale deed that regarding acceptance of money without going into the defects in reasoning of trial Court on the issue, hence, took a decision to reverse the decision and - 7 - judgment before coming to that stage as enshrined in Order XLI Rule 23A of the Civil Procedure Code. 10. The learned counsel for the respondents has supported the impugned judgment, however, the case of the plaintiff is that the plaintiff executed a conditional sale deed on 17.08.1980 for Rs.5,000/- with regard to 10 katha of land and, thereafter, in 1996 agreed to sell 5 katha within said 10 katha and it was agreed that 5 katha shall be sold on consideration of Rs.30,000/- and Rs.5000/- shall be adjusted and Rs.25,000/- shall be paid and, thereafter, the deed was drafted and even execution made in pretext of payment, but, when the money was demanded then it was said that rest of Rs.25,000/- and the mortgage deed or deed of conditional sale shall be paid after acceptance of sale deed before the Registrar, i.e., at the time of registration of land and further allegation is that the deed was not read over and so the plaintiff refused to accept before the Registrar unless Rs.25,000/- is paid and document of conditional sale are returned. In this regard, the issues were framed and the trial Court gave a finding on those issues after well discussing the evidence, both oral and documentary, but, the learned appellate Court without going into the evidence, both oral - 8 - and documentary, summarily considered the case of the plaintiff and the sale deed which makes endorsement regarding the payment, but, without considering the other oral and documentary evidences summarily set aside the order on the sole ground that since there is endorsement in the sale deed about the payment and, hence, held that the view taken by the trial Court is wrong and remanded the case. 11. Hence, it is well apparent from the record, itself, that the appellate Court did not consider the evidence on the issues framed proceeded on assumption that the trial Court has taken the wrong view that the question is of deferring with a denial in content of the sale deed executed does not arise without going into the elements on the point led by the parties on the issues framed and without considering the evidence or arrived at a conclusion with the material finding of the trial Court were erroneous summarily taking into consideration only the endorsement of plaintiff in the sale deed set aside the decree and judgment. 12. However, the order of remand has been enunciated under Order XLI Rules 23 and 23A of the Civil Procedure Code. Order XLI Rule 23 of the Civil Procedure - 9 - Code provides a remand where the case has been disposed off on the preliminary point and the decree is reversed in appeal. However, under the present facts and circumstances the case is not covered under Order XLI Rule 23 of the Civil Procedure Code as the case is not decided on preliminary issue, but, has been decided after framing all the issues on pleading of parties and giving a finding on issues. Order XLI Rule 23 A of the Civil Procedure Code provided that when a case decided after whole consideration of the issues, i.e., other than on preliminary point and the decree is reversed in appeal and the retrial is considered necessary then a case can be remanded in Order XLI Rule 23A of the Civil Procedure Code. However, Order XLI Rule 24 of the Civil Procedure Code provides that where the evidence is sufficient in a case to enable the appellate Court to pronounce judgment, the appellate Court may after resettling the issue, if necessary, finally determining the suit notwithstanding that the judgment of a Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeded. 13. From the conjoint reading of Order XLI Rule - 10 - 23A or Order XLI Rule 24 of the Civil Procedure Code. The appellate Court should not ordinarily remand a case merely because it considers the reasonings of the trial Court to be wrong without considering the entire evidence and disturbing the finding of the trial Court on the issues famed and arriving at a conclusion that the material finding of the trial Court is erroneous and remanding the case is not warranted under Order XLI Rules 23A and 24 of the Civil Procedure Code, but, before remand of the case the learned appellate Court must have considered the evidence and arrived at a conclusion that the finding recorded by the trial Court on those evidences which are erroneous and further if there is sufficient evidence then decide the issue appreciating the evidence applying the wisdom to come to it’s independent finding irrespective of the finding recorded by the trial Court. 14. But, here under the facts and circumstances the learned appellate Court has summarily held without going into the reasoning given by the trial Court whether sustainable or not, set aside the finding and, hence, taken the decision to reverse the finding without considering the entire evidences and facts and circumstances, hence, without - 11 - coming to a stage to conclude that decree and judgment of the trial Court is reversed. However, even if the learned appellate Court has set aside the finding under Order XLI Rule 23 A of the Civil Procedure Code, the lower appellate Court required to have proceeded under Order XLI Rule 24 of the Civil Procedure Code to appreciate the evidence on record and come to it’s independent finding, remanded the case, hence, the appellate Court has violated the provisions of Order XLI Rule 24 of the Civil Procedure Code which provides that where the evidence on record is sufficient it was incumbent on the appellate Court to finally determining the suit and, hence, the appellate Court has travelled beyond the jurisdiction to remand the case and this view is supported by the decision reported in 2004(2) P.L.J.R., 755 (supra) that the appellate Court, being Court of fact, is duly bound to reappraise the entire evidence available on record and come to it’s independent finding even ignoring the finding and the conclusion arrived at by the trial Court, but, instead of proceeding and going through the evidence has remanded back the case for retrial, this is not the command or mandate of Order XLI Rules 23A and 24 of the Civil Procedure Code and, hence, the impugned order is set aside. - 12 - The appellate Court is directed to decide the appeal in accordance with law. 15. With these observations and directions, this Miscellaneous Appeal is allowed. Cp:2/S.A. (Gopal Prasad, J. )