IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.5 of 2009 1. Raj Kumar Prasad, Son of Late Madan Mohan Prasad. 2. Smt. Gyatri Devi, Wife of Raj Kumar Prasad. Both are resident of Village-Ataullahpur Kasho Pokhia, Police Station & Post Office- Lalganj, District-Vaishali. ------ Defendants/Respondent-Appellants -:Versus:- 1. Kishori Singh, Son of Bisheshwar Singh, resident of Village-Agarpur Town, P.O. & P.S. Lalganj, District- Vaishali. ---------- Plaintiff/Appellant/Respondent Ist Set. 2. Smt. Sita Devi. 3. Smt. Premkanta Devi. 4. Smt. Chandrakanta Devi. 5. Smt. Biva Devi. 6. Smt. Gayatri Devi. 2 to 6 are daughter of Late Madan Mohan Prasad. 2 to 6 are resident of Village-Ataullahpur Kesho Pokhia, P.O. & P.S. Lalganj, District Vaishali. ----- Defendants/Respondents/Respondent IInd Set 7. Chitranajan Mishara, Son of Bageshwari Nath Mishra, resident of Basant Lall @ Kashwa Lalganj, Mohalla-Patwatoli Town. --------- Defendant/Respondents- IInd Set/Respondent IIIrd Set 8. Nand Kishore Singh. 9. Awadh Bihari Singh. 10. Nawal Kishore Singh. 11. Yugal Kishore Singh. All 8 to 11 are sons of Late Bisheshwar Singh. 12. Smt. Sudama Devi, daughter of Late Bisheshwar Singh. All 8 to 12 are resident of village-Agarpur Town, P.O. & P.S. Lalganj, District Vaishali. ------- Defendants/Respondents- IIIrd Party/Respondent IVth Set P R E S E N T THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA Mihir Kr. Jha, J. Heard counsel for the defendants-appellants and counsel for the plaintiff-respondent no.1. It is the judgment of the lower appellate court dated 16th September, 2008 in Title Appeal No. 2 of 2006 reversing the judgment and decree of the trial court in Title Suit No. 532 of 2000 and remitting the 2 matter back to the trial court, which is the subject matter of this appeal. The trial court by the judgment dated 28.12.2005 had dismissed the suit filed by the plaintiff-respondent and an appeal against the said judgment has led to recording of a clear findings in paragraph no.14 onwards. In paragraph no.14 of the judgment, the lower appellate court has recorded that as it was the case of the defendant-appellant that they had set out their claim on the basis of 1909 sale deed in rebuttal to the stand taken by the plaintiff pressing his claim on the basis of a settlement from ex- landlord in the year 1941. The two conflicting and competing claims as with regard to the same property obviously required framing of an issue on this aspect as with regard to the validity of the sale deed dated 17.2.1909 and in that aspect of the matter, the lower appellate court having made a detailed analysis had found that as this very crucial aspect was not gone into nor even an issue was framed by the trial court, the judgment of the trial court could not be sustained. Yet another reason as recorded in paragraph no.18 of the lower appellate court judgment would go to show that another issue going to the root of the matter, namely, the facts mentioned in the application seeking jamabandi and the order thereon regarding title of the vendors of the defendant-appellants was in keeping with the pleadings on record in the suit. The lower appellate court, therefore, had made a threadbare examination on all the issues and has found that since the aforesaid two crucial issues as recorded above were not at all gone into by the trial court, the said judgment of the trial court could not be sustained. The findings 3 recorded by the appellate court in paragraph nos.18 and 19 therefore becomes significant and is quoted hereinbelow:- ^^18- mijksDr foospuk ls ;g Li’V gks tkrk gS fd bl okn ds U;k;&fu.kZ;.k esa ,d egRoiw.kZ okn foUnq ;g gks tkrk gS fd D;k fnukad 17@2@1909 dks uFkquh yky }kjk jkey{e.k jkmr o xksfoUnz yky feJ ds i{k esa fookfnr Hkwfe ds laca/k esa fu’ikfnr fodz; foys[k dk dHkh fdz;kU;o.k o vuqikyu gqvk\ blds lkFk gh lkFk ,d vU; egRoiw.kZ okn foUnq ;g Hkh gks tkrk gS fd D;k izfroknhx.k ds fodzsrkx.k }kjk fookfnr Hkwfe ds tekcanh lq/kkj dk vkosnu o mlesa ikfjr vkns”k bl okn ds rF;ksa ds vuqdwy gS\ bu nksuksa okn foUnqvksa ds fuLrkj.k ds mijkUr gh i{kdkjksa ds vfHkopuksa dks mfpr fn”kk esa fu’ikfnr fd;k tk ldrk gS D;ksafd bu okn foUnqvksa esa vkxs vkus okys iz”uksa ds mRrj lfUufgr gSaA ijUrq v/khuLFk U;k;ky; us bl egRoiw.kZ fo’k; ds lEcU/k esa u rks dksbZ okn foUnq dh jpuk gh dh] u bl lEcU/k esa i{kdkjksa }kjk lk{; gh izLrqr fd;k x;kA blds lkFk gh lkFk v/khuLFk U;k;ky; us vius U;k;&fu.kZ;u esa bl egRoiw.kZ fo’k; ij viuk eUrO; Hkh ugha fn;k gS] ftls fdlh Hkh izdkj fof/k lEer ugha dgk tk ldrk gS] D;ksafd bl izLrkfor okn&foUnqvksa ds mRrfjr gksus ds ckn gh bl okn fo”ks’k ds vU; rF;xr rFkk fof/kxr okn foUnqvksa dk fuLrkj.k lewfpr rFkk fof/kr% lEHko gks ik,xkA rFkk bu foUnqvksa ds mRrfjr gksus ij gh vU; rF;xr rFkk fof/kxr okn&foUnqvksa dk fuLrkj.k fof/kr% vk/kkfjr gksxkA ijUrq v/khuLFk U;k;ky; ds fu.kZ; ds voyksdu ls Li’V gksrk gS fd muds }kjk izfroknh }kjk izLrqr lk{; ,oa vfHkdFkuksa dks gh vk/kkj ekudj rFkk oknh vihykFkhZ }kjk izLrqr vfHkopu ,oa lk{; dks fujk/kkj ekurs gq, okn dk fuLrkj.k dj fn;k x;k gS tks fdlh Hkh izdkj ls vfHkys[k ij miyC/k rF;] i{kdkjksa ds lk{; rFkk fof/k ds vuqdqy ugha gSA 19- vfHkys[k ij miyC/k rF;ksa ,oa lk{;ksa ds voyksdu rFkk mijksDr foospuk ds vk/kkj ij eSa bl fu’d’kZ ij igqWprk gwW fd v/khuLFk U;k;ky; }kjk ikfjr fu.kZ; fnukad 28@12@05 vfHkys[k ij miyC/k rF;ksa ,oa lk{;ksa ds vuqdqy ugha gS rFkk mls fdlh Hkh izdkj lEiq’V ugha fd;k tk ldrk D;ksafd v/khuLFk U;k;ky; }kjk bl okn esa lfUufgr vfr egRoiw.kZ foUnqvksa dks vuqrfjr NksM+ fn;k x;k gS] ftls fdlh Hkh izdkj fof/kr% ugha dgk tk ldrk gSA** Thus, it is not difficult for this Court to affirm the judgment passed by the lower appellate court only on the basis of the aforementioned 4 discussions. The reliance placed by the counsel for the appellants on a judgment of the Apex Court in the case of P. Purushottam Reddy & Anr. Vs. Pratap Steels Ltd. reported in Judgment Today 2002 (5) SC 5 is also wholly misplaced. From the facts of the aforementioned judgment of the Apex Court in Purushottam Reddy (supra), the first and important thing to be noted is that as a matter of fact, the order of remand passed by the High Court in that case was arising out of a conflicting judgment of three judges of the Apex Court vis-à-vis an earlier judgment of the two judges. Since the High Court had chosen to rely on a judgment of the three judges and ignored to take into account the judgment of the two judges which was based on a Constitution Bench judgment of the Apex Court, the logical outcome before the Apex Court was that remand on such analogy was not permissible. The said judgment, in fact, is not an authority on this point that even if the lower appellate court would come to a finding that the material issues were not framed, examined and were not gone into, it could still not take recourse to its power under Order 41 Rule 23 of the C.P.C. At this stage, learned senior counsel for the appellant seeks to explain himself that if any specific issue had not been framed, which would vitiate the findings of the trial court, then in that case such remand can only be made under Order 41 Rule 25 of the C.P.C. and not under order 41 Rule 23 of the C.P.C. The core issue as per this submission, therefore, would be that whether the present order of remand is one under Order 41 Rule 23 or Order 41 Rule 25. Here the findings recorded by the lower appellate court is in respect of two issues which according to it were going to the root of 5 the matter and since no findings was recorded by the trial court on either of them, its findings on the other issues had become redundant as they could also be materially affected in course of recording findings on the aforesaid two core and crucial issues. Thus the recourse adopted by the lower Appellate Court of setting aside the entire judgment of the trial court can not be said to be illegal or beyond the scope of Order 41 Rule 23 C.P.C. That being so, this Court would find that the impugned judgment does not suffer from any infirmity and accordingly, this appeal is dismissed. Patna High Court Dated the 6th of April, 2009 Rsh/N.A.F.R. (Mihir Kumar Jha, J.)