IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.22 of 2006 GORAKH PANERI son of Late Shivdhani Paneri,R/o village Barka Rajpur, P.S. Simri, Distt Buxar—Defendant 3rd set— Appellant. Versus 1. SHYAM BIHARI PANDEY son of Late Prabhunath Pandey 2. Dinesh Kurmar Mishra son of Sri Muktinath Mishra 3. Virendra Mishra son of Baijnath Mishra 4. Vyasmuni Pandey son of Hare Krishna Pandey 5. Grish Chandra Pandey son of Sri Chandra Vilas Pandey 6. Jagdish Pandey son of Jagat Mohan Pandey 7. Sheomuni Koeri son of Suraj Koreri 8. Krishnakant Pandey son of Narbdeshwar Pandey 9. Vikrama Yadav son of Shiv Bandhu Yadav 10. Ganesh Sonar son of Baijnath Sonar 11. Triloki Singh son of Shiv Kumar Singh All of village Barka Rajpur, P.S. Simri,Dist. Buxar --- Respondents 1st Set. 12. State of Bihar through the Collector, Buxar. 13. Anchal Adhikari, Simiri, P.S. Simri,Dist Buxar— Defendant 1st set—Respondents 2nd party 14. Mukhiya, Gram Panchyat, Baraka Rajpur P.S. Simri Dist Buxar--- Respondent 3rd party 15. Krishnjee Mishra son of Baliram Mishra 16. Vishnu Shankar Mishra son of Rampravesh Mishra 17. Awadhesh Mishra son of Baban Mishra, village Baraka Rajpur, P.S. Simri, Dist Buxar--- Respondent 4th Set. ----------- For the appellant : M/sPrem Kumar Verma,Nil Kamal For the respondent State:Mr.Anil Kr.Jha,Govt.Advocate. ----- 17. 01.10.2008 The order under challenge is dated 22.12.2005 passed by learned Additional District Judge FTC II, Buxar in Title Appeal No. 3 of 2004 whereby and whereunder after setting aside the judgment dated 31.7.2003 and decree signed on 6.8.2003 passed in Title Suit No. 13 of 1994, which was under challenge 2 in Title Appeal, the learned appellate court remitted the record to the court below for deciding the matter afresh in accordance with law. Heard learned counsel for the appellant and the learned Govt. Advocate Sri Anil Kumar Jha appearing for the respondent State. Learned counsel for the appellant has submitted that the grounds for setting aside the order under challenge before the first appellant court passed in title Suit No. 13 of 1994, which was filed under Order 1 Rule 8 CPC for declaration that disputed land described in Schedule of the land was of general public and order passed by the Circle Officer, Simri on 16.12.1992 in case no. 7/62 of 92-93 and order dated 23.2.1993 passed by SDO, Buxar was void and liable to be set aside. The defendant respondent of the Title Suit No. 13 of 1994 is appellant here. Defendants 3 and 4 appeared and contested the matter and ultimately suit was dismissed. It has been submitted that the grounds assigned for remitting the case by the first appellate court are not based on pleadings and supported facts. It would be manifest that time without number sufficient opportunity was given to the plaintiff respondents for placing argument before the trial court but plaintiffs opted to remain absent on 16.4.2003, 1.5.2003, 2.6.2003, 26.7.2003 and lastly the trial court had no option but to pronounce judgment on of consideration of materials on record. It is also manifest that as 3 many as 29 witnesses on behalf of the plaintiffs in title suit were examined; whereas 13 witnesses on behalf of the defendants were also examined. So, in that context of the matter, merely on the basis that plaintiff was not given an opportunity of being heard is not sufficient ground for setting aside the order of the trial court and transmitting the record of the trial court to decide the matter afresh, when there appears sufficient material before the appellate court to decide the matter. Learned Govt. Advocate appearing for the respondent State has given emphasis that there are good reasons assigned by the court below for remitting the record to the trial court for deciding the matter afresh in accordance with law in view of the fact that notices were not served upon respondents 1,2,5,6 and 7 and, as such, they have been given opportunity to contest the matter. But in reply, it has been argued on behalf of the appellant that defendants 1 and 2 happen to be Collector and Anchal Adhikari and they used to appear through Govt. Pleader in the stage of hearing before the trial court and defendants 1,2,5,6 and 7 did not appear to contest the matter and, so, there is no question of sending record back for such verdict when there appears sufficient material before the first appellate court to decide the matter. In the facts and circumstances and after considering arguments as also material on record, I do not find any reason to remit the case in the trial 4 court for deciding the matter afresh rather first appellate court should decide the matter and for that the impugned order is not sustainable in law as also on facts. So, the same stands set aside. The first appellate court is directed to dispose of the case after giving opportunity for hearing to the parties after service of notice on them and dispose of the matter preferably within six months from the date of communication of this order. In the result, the appeal stands disposed of. (Subash Chandra Jha,J.) spal/