IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.223 of 2008 JOGENDRA PRASAD SINGH S/O Late Chhote Lal Singh, R/O Vill. Barsanda, P.S. Sangrampur Sub Registry Office Haveli Kharagpur, P.O. Gorabdih, Distt. Munger ........Plaintiff-Respondent-Appellant Versus MANIK SINGH S/O Late Chhattu Singh, R/O Vill. Barsanda, P.S. Sangrampur Sub-Registry Office Haveli Kharagpur, P.O. Gorabdih, Distt. Munger .........Defendant-Appellant-Respondent ----------- 06. 09.07.2010 Heard learned counsel for the appellant and solitary respondent, who are in agreement that this appeal may be heard and disposed of on merit at this stage itself. This appeal has been preferred against order of lower appellate Court, remanding the matter for fresh decision to the trial Court, after framing as many as eleven additional issues enumerated in Para 14 and 15 of the judgment and also giving liberty to the trial Court as may appear in Para 17 of the judgment, “to take additional evidence if any required8”. The appellant was plaintiff before court below filed the suit for declaration of his title with further declaration that order passed by Collector in Mutation Appeal No. 19 of 1992-93 was illegal, does not affect his right title etc. over the suit land, the defendants be restrained from interfering in his possession. The suit was contested by filing written statement by solitary defendant. The trial Court on the basis of pleadings of the parties, framed altogether sever issues for determination, such as:- (i) Is the suit as framed is maintainable? 2 (ii) Is the plaintiff has got cause of action for the suit? (iii) Is the suit is barred by law of limitation? (iv) Is the suit is barred by non-joinder of the party? (v) Are the sale deeds nos. 4504 and 4507 of 1989 are illegal and inoperative? (vi) Is the sale deed executed on 15.7.1987, executed by Madni in favour of defendant is valid? (vii) Is the plaintiff entitled to the relief claimed with respect to the suit land? And ultimately, on consideration of materials decreed the suit with costs. The defendant-respondent preferred the appeal against the judgment of the trial Court where in the lower appellate Court in his detailed judgment arrived at the conclusion that the below mentioned eleven points were essential to be replied, which has not been done by the court below, which is as follows:- (i) Whether the order dated 11.7.1995 passed by the Collector, Munger in Mutation Appeal No. 19 of 1992-93 is illegal and without jurisdiction? (ii) Whether the defendant has no right to challenge the right of the plaintiff over the suit land on account of principle of estoppel? (iii) Whether the plaintiff is in possession of the land or he has been dis-possessed by the defendant by virtue of sale deed dated 15.8.1987? 3 (iv) Whether the gift deed alleged to have been executed by Chunki Devi in favour of Fakira Singh is bogus and fraudulent and in-opeative? (v) Whether Fakira Singh has got right, title and interest over the suit land i.e. plot no. 117, area 12 Kattha 2 dhurs situated at Mauza Geetwarpur, District-Munger? (vi) Whether the gifted land alleged to have been executed in favour of Fakira Singh contains the suit land i.e. Khesra No. 117? (vii) Whether the compromise petition filed in T.S. No. 10/1983 relinquish the claim of Fakira Singh over the alleged gifted property on account of compromise entered between Fakira Singh and plaintiff Paviya Devi? (viii) Whether the relief no. 2 sought by the plaintiff is barred by law of limitation and the suit is maintainable? (ix) Whether the plaintiff is liable to pay advalorem court fee? (x) Whether the gift deed alleged to have been executed by Chunki Devi in favour of Madni Devi is genuine and valid as well as operative and it creates right title and interest over the suit land in favour of the defendant? 4 (xi) Whether the plaintiff is entitled to get the relief and if so what? The short facts involved in this appeal, is that one Chunki Devi was the original holder of the land, whose son-in-law was one Fakira Singh, whose daughter was Madni Devi as per plaintiff- appellant. The original holder of the land, transferred her property by virtue of gift of deed to her son-in-law, Fakira Singh, which is disputed by defendant-respondent as per the plaintiff, Fakira Singh transferred 12 Katthas, 2 dhurs lands to the plaintiffs on 8.7.1987 and remaining 10 Katthas was sold to one Jawahar Prasad and defendant-respondent got 5 Katthas land from said purchaser Jawahar Prasad, where as per defendant-respondent Chunki Devi gifted her property to her grand daughter Madni Devi from whom, they have purchased the land including the land said to have been transferred by Fakira Singh. With above contentions the parties are at litigating terms since before right from revenue authorities up to Civil Courts and now here in this appeal. The main grievance as against the impugned judgment of the lower appellate Court as submitted by learned counsel for plaintiff- appellant that the materials available are sufficient to decide all of the questions involved but court blow ignored and even without arriving at the finding that any more evidence is required, remanded the case, where as the issues proposed are well covered directly or indirectly with the issues framed by the trial Court, in support of his contentions, reliance has been placed being two decisions of Apex Court, reported 5 in A.I.R. 1999 S.C., 1125 and S.C.C. 2008 (XII), 372. On the other hand learned counsel for the defendant-respondent submitted that court below has rightly passed order of remand and reliance has been placed in a decision, reported in A.I.R. 2003 S.C., 3167. The legislature has made provision of remand of the cases by appellate court in the Code of Civil Procedure, the relevant provisions are as contemplated under Order 41, Rule 23-A and 25, which reads as such:- 23-A. Remand in other cases:- Where the Court from whose decree an appeal is preferred has disposed of the case 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 rule 23. 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from:- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to 6 the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore (within such time as may be fixed by the Appellate Court or extended by it from time to time). There is one more Rule 24, under Order 41, which mandates the appellate Court to preferably decide the appeal and avoid order of remand as far as possible. Here in the instant appeal, it appears that the lower appellate court, at no point of time has said that there is any sort of insufficiency in evidence on record and is not in a position to decide all such points suggested for re-determination by the trial Court, whereas majority of the proposed points are nothing but points for re-determination while dealing the title of the appellant, as regard to which issues has already been framed by the trial Court and there is a finding which was to be re-judged by the lower appellate Court. In the appeal similarly questions of limitation and other allied points are also appears to have been covered in the issues, framed for determination by the trial Court. So far, the point as regard to payment of Advolerm court fee is 7 concerned, it can be decided at any stage and the parties required to pay, may be directed to do so otherwise they will have to face the consequences at any point of time. So far, the decision of the Apex Court, relied upon by defendant-respondent in a case “REMCO Inds. Workers House Bldg. Co-op. Socy., Appellant Vs. Lakshmeesha M. and others, Respondents, reported in A.I.R. 2003 S.C., 3167” is concerned, where in Paragraph 18, the Apex Court passed the following order:- 18. “ From the above re‟sume‟ of facts and the nature of orders of grants of Occupancy Rights to the contesting parties, we find that the basic issue of the effect of earlier grant dated 28..5.1965 (Ex. D-3) in favour of the tenant – Muniyappa on the subsequent granted dated 9.12.1969 (Ex. P-1) in favour of plaintiff/respondent was neither addressed to by any of the Courts below nor a decision has been rendered on the same. The issue of effect of Ext. D-3 on Ex. P 1 and the identity of the land under the two grants is vital to the just decision of the case. The powers of the appellate court are not inhibited by the acts or omissions of the parties. Rule 25 of Order 41 of Code of 8 Civil Procedure empowers the appellate Court to frame an issue and remit it for trial which has been omitted to be framed and tried by the trial Court and which appears to the appellate Court essential to the right decision of the case. Rule 23-A, Order 41 introduced by CPC Amendment Act No. 104 of 1976 w.e.f. 1.2.1977 confers powers on the appellate Court to remand whole suit for retrial. In our considered opinion, this is a fit case where this Court should exercise powers of remand under Order 21, Rule 25 read with Rule 23-A of CPC”.. But this decision is not applicable in the instant appeal, since before the Apex Court. In the aforementioned case, it came as conclusive material that dispute involves was identity of the suit land and at no point of time there was any finding by either of the Courts or specific material, consequently order of remand was to be passed. The Apex court in a case of Ashwinkumar K.Patel, Appellant Vs. Upendra J.Patel and Others, Respondents, reported in A.I.R. 1999 Supreme Court, 1125 is also relevant , where in Para 7, the Apex Court has said as follows:- 7. “In our view, the High Court should not ordinarily remand a case under Order 9 41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters Involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” The another case whereupon reliance has been placed by learned counsel for plaintiff-appellant is the decision of the Apex Court in a case of Bachahan Devi and Another, Respondents Vs. Nagar Nigam, Gorakhpur and Another, Respondents, reported in (2008) 12 Supreme Court Cases, 372, where in it has clearly been 10 held in Para 10, while dealing the provisions under Order 41, Rule 25 C.P.C. that, “ Order of remand should not be passed as a matter of routine and further in same paragraph it is observed”, as such:- 10. “Under Order 41 Rule 25, if it appears to the appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The first appellate court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the first appellate court, inter alia, observed as follows: “As such, it would not be proper for the first appellate court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon‟ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of the Civil Procedure 11 Code, becomes mandatory (shall) though in this provision, the word „may‟ has been used. No doubt in the present matter also the appellate court has framed six additional issues which are legal in nature and also factual, with the result if the appellate court gives its findings relating to said legal and factual issues after itself recording (receiving) evidence then the aggrieved party would be prevented from its right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon‟ble High Court is fully applicable in the present matter”. From the discussion made above, it is clear that lower appellate court has not properly appreciated the legal and factual requirements in the instant case as passed, the order of remand which is not sustainable. Accordingly, impugned order is hereby set-aside, the appeal is allowed, and matter is remitted to the lower appellate court for deciding the appeal afresh. It is further made clear, that the Court concerned shall decide the appeal, preferably within four months of receipt of copy of this order or communication by any means. The learned counsels for the parties, proposed 5th of August, 2010 i.e. Thursday, the day on which the appellant and respondent shall be present before the lower appellate Court for further 12 needful, accordingly, they are directed to appear on the date fixed. Praveen ( Akhilesh Chandra, J.)