IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.49 of 2007 1. Md. Zaimuddin @ Md. Azim, son of Sheikh Asso. 2. Shekh Shahid, son of Late Shekh Zahir. 3. Shekh Shriman, son of Late Shekh Zahir. 4. Shekh Sultan, son of Late Shekh Zahir. 5. Bibi Kohaba, wife of sk. Sultan, daughter of Late Bibi Hanif. 6. Bibi Bholli @ Bibi Hadisa @ Fudisa, wife of late Sk. Asso. All resident of Village- Kharik Bazar, Police Station-Kharik Bazar, District-Bhagalpur. ……Plaintiffs….Respondents…Appellants. Versus 1. Sk. Mangal, son of Late Sk. Najjo. 2. Bibi Fe-Ko, daughter of Late Ali Bux. 3. Subeda Khatoon, daughter of Late Ali Bux. 4. Bibi Parrvin Khatoon, daughter of Late Ali Bux. 5. Sk. Muslim, son of Late Sk. Najjo. 6. Sk. Habib, son of Sk. Fekko 7(a) Sk. Farid. 7(b) Sk. Anjar 7( c) Md. Mustasar. All sons of deceased Sk. Mansoor, Respondent No. 7, resident of Village and Police Station-Kharik Bazar, District-Bhagalpur. 7 (d) Bibi Begiya, daughter of Late Sk. Mansoor, wife of Nisar, resident of Village- Tulsipur Jamuni, P.S. Parwata, District- Bhagalpur. 7 (e) Bibi Shila, duather of Late Sk. Mansoor, wife of Md. Juneth, resident of Md. Juneth, resident of Village-Kharik Bazar, Pachamigharari, P.S. Kharik, District-Bhagalpur. 7 (f) Bibi Sabli @ Lila, daughter of Late Sk. Mansoor, wife of Md. Amin, resident of Village-Jhandapur, P.S. Bihpur, District- Bhagalpur. ……Defendant-Appellant……Respondents. 8. Bibi Nayazun, wife of Late Rasul, daughter of Late Bibi Hanif. 9. Bibi Punia, wife of Late Sk. Sakur, daughter of Bibi Hanif. 10. Bibi Kampi, wife of Sk. Mosali, daughter of Bibi Hanif, Bihpur. All resident of Village-Milki, Police Station- Bihpur, District- Bhagalpur. 11. Bibi Khuhari, wife of Hahib, Daughter of Late Bibi Hanif. Resident of Village- Rangra, Police Station-Gopalpur, District- Bhagalpur. ………………..Plaintiff……….Respondents……….Respondents. ----------- 18. 05.10.2010. Heard the learned counsel for the appellants and defendants. 2 This Misc. Appeal is directed against the order dated 19.12.2006 passed by Sri J. K. Shrivastava, IIIrd Additional District Judge, Naugachhia, in Title Appeal No. 24/95 by which he has set aside the judgment and decree passed in Title Suit No. 183/90/02/1992 and order to remand the case with a direction to recast the issues as referred to issue no. 3 of his judgment and after hearing both sides passed the order afresh. 2. The case of the plaintiffs in the plaint is that one Sk. Bhutto was the original owner of 6 Khata 18 Dhurs of Plot Nos. 2466, 2467 and 2468 whose name duly recorded in cadestral khatian finally prepared and published in the year 1905-07 and Sk. Bhutto died leaving behind his two sons namely, Sk. Tahir and Sk. Zahir who inherent and came in joint possession and their names recorded in the sirista of the ex-landlod who submitted jamindari return in their names at the time of 3 vesting of jamindari in the the State of Bihar and the State of Bihar prepared register two in the names and also issued rent receipts in their names on payment of rent. Further case of the plaintiff Sk. Tahir orally sold 1 decimal of land out of said 6 Khata 18 dhurs to one Sk. Najo in the year 1965 and possession was duly delivered and during the course of revisional survey out of three Plots new plot no. 2361 area 0.14 acre and new khata No. 1154 have been carved out but the revisional survey khatian of the new plots has been recorded jointly in the name of Sk. Tahir and Sk. Zahir, sons of Sk. Bhutto to the extent of three annas and Sk. Fakko and Sk. Najjo, sons of Sk. Alijan without mentioning any share. However, after recording the names of Sk. Najjo and Sk. Fakko trouble started between the parties and to avoid trouble Sk. Tahir executed a registered kebala with regard to 1 dhur of the land in the year 1979 described in Schedule B of the plaint and 4 further the case of the plaintiffs is that they are coming in peaceful possession of remaining 0.15 acre of land and new plot no. 2355 of Khata No. 1154 which is the suit land and fully described in Schedule 'A' of the plaint which is subject matter of the suit. 3. The further case of the plaintiffs is that when they wanted to put brick wall upto about 6 feets in height in place of their mud wall upon the suit land which was stopped through proceeding under Section 145 Cr.P.C. and the claim of the plaintiffs that they have got perfect right, title, interest and possession over Schedule 'A' land and the defendant has not right over the same. 4. The case of the defendants are that plaintiffs have got no valid cause of action for this suit and the suit as framed is not maintainable, and barred by law of limitation, estoppel, acquissence and make out a case that just after conclusion of the cadestral 5 survey. Sk. Kallan has given a genealogical tables of the family of the defendants in the written statement and Late Sk. Kallan orally purchased 15 Decimals of land from Late Sk. Bhutto appertaining to old Khata No. 345, old Plot Nos. 2466, 2467 and 2468 and constructed dwelling houses thereon and got the same used as their residence, bari, sahan etc and son and grand sons of Sk. Kallan came in peaceful possession over the land purchased by Sk. Kallan. 5. Further case of the defendants that since the inception of oral sale by the ancestors of the defendants are in hostile possession over the said 15 decimal of land orally purchased land to the full knowledge of the plaintiffs as their ancestor who clearly denied their right of ownership to the aforesaid suit land and asserted their possession both as enimus and corpus. 6. On the pleading of the party, the 6 trial court proceeded with the trial framing nine issues which are as follows; I. Have the plaintiffs got any valid cause of action for the suit ? II. Is the suit as framed maintainable. III. Have the plaintiffs got valid right, title and interes over the suit land mentioned in Schedule-A of the plaint? IV. Whether the defendants have acquired title upon the suit land by way of adverse possession upon the suit land purchased by them through oral purchase ? V. Whether the suit land is in possession of the plaintiffs or of the defendants. VI. Whether the suit land mentioned in Schedule-B of the plaint is the self acquired land of the defendand no. 2 ? VII. Whether the defendants except the defendant no.2 have got right, title 7 interest and possession upon the suit land mentioned in Schedule-B of the plaint ? VIII.Whether the suit is barred by law of limitation, waiver and acquiscnece ? IX. To what other relief or reliefts if any the plaintiffs are entitled thereto ? 7. While deciding the issues, the trial court taken issue nos. III, IV and V together and held that plaintiffs have got valid right, title and interest upon the suit land and the defendants have got no concern or right, title and interest upon the same either through oral purchase or through adverse possession and the suit land is in possession of the plaintiffs and not of the defendants. 8. While deciding issue nos. VI and VII, held that there is no prayer for the declaration of the title of the plaintiffs or the defendants upon Schedule-B land and hence no detailed discussion is required upon the same. 8 9. While deciding Issue No. I and II held that he did not find any defect in the frame of the suit or about the maintainability and decided in favour of the plaintiffs. 10. While deciding issue nos. VIII and IX held that only prayer of the declaration of the title and hence not require detailed discussion and decreed the suit. 11. However an appeal was filed before the District Judge and the case was transferred to the court of additional district Judge and the Additional district Judge by the impugned order held at para 3 of impugned judgment that on the pleading of the parties the following issues ought to have been framed. I. Is the suit as framed maintainable. II. Have the plaintiff got cause of action for the suit. III. Is the suit barred by estoppel, waiver and acquiescence. IV. Is the suit barred by law of 9 limitation. V. Is the story of oral sale of 1 decimals land by Sk. Tahir in favour of Sk. Najjo in the year 1965 followed by execution of sale deed in the year 1979 by him in favour of defendant No. 2 is correct. VI. Whether Kallan was purchaser of 15 decimals of land from Sk. Bhutto out of C.S. Plot Nos. 2466, 2467 and 2468 of old Khata No. 346.? VII. Whether the defendants have got possessory title over 8 decimals of R.S.P. 2355. VIII. Are the plaintiffs entitled to any other relief or reliefs; 12. Lower appellate court on mere consideration of the issues framed by the trial court further held in para 6 of judgment as 10 follows; " …………..the learned court below has not framed even a single issue which could connect it with actual controversy in this case. Therefore, afresh recasting of issues as referred to in para 3 of judgment appears to be necessary for the just decision of this case. The parties have adduced their evidence in the light of their pleadings but the court below has not also discussed and given category finding on stand taken by defendants appellants in their W.S. regarding oral purchase of 15 decimals land out of old plot no. 2466, 2467 and 2468. Further learned court below has not discussed about plea of adverse possession of defendants regarding 8 decimals of land of R.S.P. No. 2355 or on the point of alleged oral purchase by Sk. Kallan. Defendants have examined D.W. 7, D.W. 6 and D.W. 12 but learned court below has not discussed the testimony of these witnesses on this point. The plaintiffs 11 respondents have examined P.W. 7, P.W.8 and P.W. 9 on the point of oral sale of 1 decimals land but their evidences are not discussed by the court below. Thus, learned court below has neither properly framed issues in this case nor has discussed evidences and given categoric finding on above issues therefore, interference by this court is required. In the result impugned judgment and decree are set aside and this appeal is allowed. Learned Court below is directed to recast issues as referred to hereinbefore in para 3 and after hearing both sides pass judgment and decree afresh. The case is remanded accordingly." 13. Learned counsel for the appellants however, contended that lower appellate court without considering the evidence and without arriving at a conclusion that the material finding of the trial court are erroneous set aside the decree and judgment of 12 the trial court and remanded the suit for disposal does not finds in terms of the mandate provided under Order XLI Rule 23 A and further contended that lower appellate court did not go into the merit and reasons of the finding recorded by the trial court and without complying with the provision of Order XLI Rule 23A, set aside the judgment and decree and remanded the case which is not sustain in law. 14. Learned counsel for the respondents contended that appellate court being satisfied that the issues were not properly casted set aside the judgment and decree and remanded the case and supported the impugned order. 15. Hence on rival contention of the parties the question for consideration whether order of remand passed by the Additional District Judge is legally sound and sustainable in law. 16. However, taking into 13 consideration the facts in narrow compass the case of the plaintiffs that the land recorded in the name of ancestors of plaintiffs in the record of right are coming in continuous possession of plaintiffs hence plaintiffs has got right title and interest over the land in suit whereas the case of the defendants is that they have acquired title by oral sale from the ancestors of plaintiffs followed with possession and has got title over the land and has also taken the alternative plea of adverse possession. The trial court framed altogether nine issues on the pleading of the parties as mentioned at the out outset. The parties adduced both oral and documenting evidence on well undisclosed this case in the pleading and the trial court after well considering the evidence adduced by the parties both oral and documentry gave their finding on all issues. Two material issues framed were Issue No. III whether the plaintiffs have got right, title and interest over the suit land and 14 Issue No. IV whether the defendants have perfected the title by adverse possession on the pleading of the party was well considered by trial court taking the pleading and evidence adduced by the parties. 17. However, learned appellate court without going into the materials of the finding recorded by the trial court and without considering the finding and even taking note of the findings recorded by trial court come to a conclusion that material finding recorded by the trial court are erroneous on the grounds that issue not properly framed ought to have been framed as suggested in para 3 of the impugned order and set aside the decree and judgment of the trial court without reversing the finding recorded by trial court on merit i.e. reverse the judgment and decree in appeal without going into the reasoning of the finding recorded by trial court. 18. However, provision of remand 15 exercisable by the appellate court is guided by Order XLI Rule 23 to 28. Order XLI Rule 23 provided that if the suit has been disposed of on preliminary point and decree is reversed in appeal, appellate court may remand the case to the trial court. Order XLI Rule 23A provided that when case disposed off otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Order XLI rule 23. Order XLI Rule 24 provides that if there is sufficient evidence on record to enable the appellate court to pronounce the judgment, then appellate court after recasting the issues, if necessary, finally determine the suit. Order XLI Rule 25 provides that if the appellate court feels that any issue or issues have been left undetermine by the trial court it may frame issue and remit the same to the trial court for a finding keeping the appeal pending in its file and on receipt of 16 the same under Order XlI Rule 26 proceed to dispose the appeal and Order XLI Rule 27 provides that if the appellate court satisfy or feel that there is justification of receiving additional evidence as per condition under Order XLI Rule 27 then he may take additional evidence or direct the trial court to record the additional evidence and sent it to the lower court for its consideration. 19. Hence taking into consideration Order XLI Rule 23 and 23(a) there are two contingencies for remanding the case to the trial court. The first contingency is that if the suit is disposed of on preliminary issue by the trial court as per Order XLI Rule 23. The appellate court on consideration of the decision of the trial court on the preliminary point found erroneous and reverse in appeal in that contingency, the appellate court has jurisdiction to remand the suit to be heard and disposed of on merit by the trial court. 17 20. The second contingency arises under Order XLI Rule 23(a) when the trial court after framing all the issues has given its decision on all the issues then appellate court after full hearing the appeal reverse the decree in appeal and retrial is considered necessary which itself implies to cast a duty on appellate court for considering the entire evidence and the facts and circumstance of case and to go into legality of findings recorded by the trial court and considering that decree and judgment under appeal requires to be reversed as the finding recorded by trial court suffers from illegality then it has to give reason for the same to set aside and reverse the judgment and decree and further apply its mind to come to a conclusion that it is necessary in the interest of justice to remand the case then only the appellate court shall remand. However under Order XLI Rule 24 provided that if there is sufficient evidence then the appellate court 18 after recasting the issue shall consider the order and dispose of the appeal, hence the appellate court had been saddle with a duty to dispose of the case on merit if there are sufficient evidence and not to simply and mechanically remand merely because of some defect or infirmities in recasting the judgment of trial court like the issue or alike. 21. However, taking into consideration the facts and circumstance of the case at hand the impugned judgment and decree is not an order disposed of the case on preliminary issue, but the trial court has framed nine issues on which both parties adducing both oral and documentary evidence trial court after well considering the evidence and gave finding on all issue framed and hence remand of the case on the first contingency does not arise. 22. However, the second contingency is concerned, learned appellate court have not, 19 apparently as apparent from the impugned judgment itself, gone into the finding recorded by the trial court as neither heard the appeal in full nor has applied his mind to the finding recorded by the learned trial court on all issues or even on important relevant issues. Hence it is apparent that lower appellate court neither gone into the evidence adduced by the parties judicially to appreciate the evidence on the issues nor appreciated finding recorded by the trial court on issues nor consider or pointed out any defect or gave any reason to disturb the finding recorded by trial court and there is nothing to indicate that whether appellate court considered the finding recorded by trial court to hold whether finding recorded by trial court is sustainable or not. But the appellate court appears to have examined only the issues framed and ordered that the trial court ought to have framed issues like as suggested in para 3 of the impugned order and pointed some defects 20 as plea of adverse possession not discussed infirmities in none consideration of some evidence. Summarily set aside or reverse the judgment and decree of trial court. 23. However the appellate court held that the evidence has been adduced by the parties on issues, but instead of proceeding under Order XLI Rule 24 to recast the issue and consider the evidence when there are sufficient evidence to decide the suit and come to its independent finding irrespective of the finding recorded by trial court after reappreciating the entire evidence and fact and circumstance of the case. 24. However, the appellate court if found that certain issues were not properly framed may have recasted the issue and if found that no evidence on that issue may have proceed under Order XLI Rule 25, re-cast the issues and remitted the same to the trial court for finding record on issue after taking evidence 21 and on receipt of the finding recorded by trial court as provided under Order XLI Rule 26 may have proceed and to hear the appeal. 25. However, the appellate court in the impugned order held that the parties have adduced evidence. Hence if the parties adduced evidence and there are sufficient evidence then the appellate court may have recasted the issue and after considering the evidence reappriciate the entire fact of case and could have come to its independent finding irrespective of the finding recorded by trial court under the scheme of Order XLI Rule 24 CPC but the appellate court did not proceed under Order XLI Rule 24. 26. Hence the lower appellate court remanded the case without going into the evidence or the issues framed and without going into the reasoning of the finding recorded by the trial court and without coming to a conclusion as to whether finding recorded by 22 the trial court is sustainable in law and fact set aside the judgment and decree of trial court summarily holding issue not properly framed and non-consideration of some evidence by trial court and hence remanded the case without coming to a stage of judicially considering the entire evidence and fact and circumstance of the case to come to a conclusion that finding recorded by the trial court is not sustainable. Hence the order of remand is prior to coming to a stage when judgment and decree could have been reversed and remanded and hence impugned order is not sustainable. The appellate court before exercising the power of remand has statutory duty and obligation to follow the mandate of Order XLI Rule 23A to consider the evidence and finding recorded by trial court on all issues to come to conclusion that finding recorded by trial court are not sustainable. Order XLI Rule 24 further cast a duty on the appellate court as a court of fact to 23 reappreciate the evidence and comes to its independent conclusion of the finding recorded by trial court when there was sufficient evidence. Hence the order of setting aside the judgment and decree of trial court by the lower appellate court and order of remand is not sustainable and is accordingly set aside. 27. It is pertinent to mention that remand is extreme measure and has the effect of putting the parties back to the same position at the initiation of litigation even after number of years spent and good deal of expenditure of money and so appellate court could remand the case only under circumstance laid down under Order XLI Rule 23 and 23(a) and in no other case and hence the impugned order is set aside and the appeal is allowed. The case be sent back to the lower appellate court and to decide in accordance with law. m.p. ( Gopal Prasad, J.)