c^ ^"^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL N0. 9 j^2QQ9. VQS^ '• APPELLANTS/ DEFENDANTS 1] Uttam S/o. Late Rameshwar, aged about : 45 years, .^^••! ^^ '..^^ 2] Yashvant S/o. Late •^•W"L(^S ^"°.^{t^ ^" ^ Rameshwar, aged about : 37 years, 3] Premu @ Prem Lal S/o. Late Remeshwar, aged about : 29 years, 4] Pancho Bai Wd/o. Late Rameshwar, aged about : 65 years, Above all are R/o. Village : Deopur, Tahsil & District : Dhamtari (C.G.). 5] Dhannu S/o. Late Fulsingh, aged about : 28 years, FN^- ~'11 T~ 6] Hatoeya Wd/o. Late Fuisingh aged about : 50 years, Both are R/o. Village : , Sindhorakhurd, Police Station : Kurud, Tahsil : Kurud, District : Dhamtari (C.G-). VERSUS RESPONDENTS/ PLAINTIFFS 1] Pawan Kumar S/o. Late Puranik Marar, aged about : 44 years, 2] Suruj Wd/o. Late Puranik, aged about : 75 years, Both are R/o. Village : Deopur, Tahsil & District : 3] Dhamtari (C.G.). State of Chhattisgarh, Through : Collector Dhamtari District : Dhamtari (C.G.). DEFENDANT N0. 7 "T' 7 MISCELLANEOUS APPEAL UNDER ORDER 43. RULE 1 FU) OF CIVIL PROCEDURE CODE. HiGH COURT OF CHHATTISGARH AT BSLASPUR IVESSC. APPEAL N0. 97 OF 2009 APPELLANTS/ DEFENDANTS RESPONDENTS/ PLAiNTSFFS Uttam and others. Versiis' Pawan Kumar and others. M1SC. APPEAL UNDER ORDER 43 RULE 1(U) OF THE CODE OF CIVIL PROCEDURE. 1908 (Sinale Bench: Kon'bie Shri N.K. AaanA/al. J.l. Present : Shri Pushpendra Kumar Patei for the appejiants. Shri Adli Minhaj, counsei aiong wlth Shri Kshltij Sharma, counsel forthe respondents No. 1 & 2. Shri Vinod Tekam, Panei Lawyer for the State. ORALORDER (Passed on 23rd day of SVIarch, 2011) The Jnstant MJscelianeous AppeaS is directed against the judgment and decree dated 25-08-2009 passed by Addjtionai District Judge, (F.T.C.), Dhamtari, District Dhamtari in CiviJ Appeal No. 2-A/2007 whereby the appeliate Court remanded the matter for its retriai after framing two issues. 2. Facts in brief are as under; Respondents/plaintlffs Instituted a suit for deciaration of their titie over the sult property described in Scheduie-B of the pjaint or in the altemative, deciaration oftitie over halfofthe suit property described in Schedule-A and for permanent Injunction. 3. The Trial Court framed six issues. Issue Nos.1, 3 and 4 are reievant which reads thus: "1. cj?ii yS^cii^ Riciifqci '^ 3T3^ (^) ^ ?f 1.09 W^S ^T-^ WPft I? 3. 'wi fen^Tf ^ ^gf^ (^T) c^ 'gP cCT TTR"^ ^cR m grca ^3Tr? ?T 4. ^[T fenf^a ^ 3i^f^ (i[) cCT cjT^T^PT gf ?cr y^cii414}^ cCT t^ wri^T I?" 4. On appreciation of the evjdence ied, material pjaced and submisslons made by the parties, triaj Court dismissed the suit. 5. The first Appellate Court remanded the matter for its retrial havlng found trial Court omitted to frame two necessary issues i.e. "whether Rameshwar is adopted son of Sukhru" and "whether Rameshwar wi!i not inherit the property of Pusku described in Schedule-B", which are necessaryforjustdecision of the case. 6. i have heard learned counse! for the parties and perused the record of Court beiow. 8. The first issue framed by the First Appeiiate Gourt that "whether Rameshwar is adopted son of Sukhru or not" is not in dispute. Even this fact has been admitted by Jearned counse! for both the partles before this Court. So far as other issue framed by the First Appeliate Court is concerned, since sufficient evidence is availabie on the record, appellate Court shou!d have heard the appeai finally after framing such issue jn the ilght of provision contained in Order 41 Rule 24 oftheCPC which reads tbus: "Where evldence on record sufficient, Appellate Court may determine case tinalty." Where the evidence upon the record Es sufficient to enabie the Appeliate. Court to pronounce judgment, the AppeiJate Coyrt may, after resettling the jssues, if necessary, finaliy determine the sujt,notwlthstandjng that the judgment of the Court from yt/hose decree the appeal Is preferred has proceeded whoily upon some ground other than that on which the appeiiate Court proceeds". 9. -in view of the above, in the considered opinion of this Court, order of remand passed by the Court beiow being not sustainable in law, deserves to be and is hereby set aside. The matter is remitted backto the Court below i.e. Appellate Court to 3 dedde theappeai in the iight of observation made herein above, in accordance with law on its own merits. 10. No orderastocosts. Kvr Sd/- N. K.Agarwal Judge ^ ^