1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 103 OF 2009 WITH CIVIL APPLICATION NO.4507 OF 2009 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders 1. Heard Shri V.D.Salunke, Advocate for the appellants and Shri Sachin Deshmukh Advocate for the Respondent. 2. This appeal from order by original defendants is directed against the order passed by the learned District Judge-I, Ambajogai on 24.3.2009 thereby allowing Regular Civil Appeal No.158 of 1999 and remanding the matter to the trial court. 3. Briefly stated, the present appellants are original defendants and present respondent is the original plaintiff. Appellant No.1 is the 2 father of appellant No.2. Respondent- plaintiff filed R.C.S. No.200 of 1991 for specific performance in the court of Civil Judge, Junior Division, Kaij, District Beed. That suit came to be decided by the Joint Civil Judge, Junior Division, Kaij on 25.10.1999, whereby he dismissed the same. Suit was in respect of survey No.75/KH admeasuring 2 acres 28 gunthas situated at village Sonijawala Taluka Kaij, as more particularly described in the plaint. 4. Being aggrieved by dismissal of the suit, respondent-plaintiff filed Regular Civil Appeal No.158 of 1999 in the District Court and after hearing both the sides, learned District Judge by his order dated 24.3.2009 allowed the said appeal and remanded the matter to the trial court. It is this order in appeal which is being challenged in this appeal from order. 5. During pendency of the said appeal, present respondent-plaintiff 3 filed application at Exh.16 in the said appeal and prayed for calling record of 7x12 extract in respect of the disputed land from Tahsil office. The application is said to be under Order 41 Rule 27 of C.P.C. 1908 The District Court directed that the application be heard along with the appeal itself. At the time of hearing the appeal, the District Court framed only issue regarding necessity of remand and answered it in the affirmative. It mainly devoted the discussion on 7x12 extracts produced on record. Relevant portion of paragraph 16 of the order passed by the District Court in Appeal No.158 of 1999 reads thus; "16. Exhibit 11 which is for the period 1989-90 wherein the appellant is shown to be owner and in possession of disputed suit property is issued on 02.03.1990. Exhibit 37 is also for the period 1989 to 1990, wherein the respondents are shown to be in possession and the appellant to be 4 owner. This is issued on 16.05.1991. From this, it is clear that in 7/12 extract which is at Exh.11 which is issued prior to the issuance of Exh.37; the respondents are not shown to be in possession of disputed suit property. So, there is substance in the contention of Adv. Shri B.N.Kirdant for the appellant, the same person for same period had issued two different 7/12 extracts by showing different entries." 6. Above said reason appears to have prompted the learned District Court to set aside the judgment and decree passed by the trial court and remand the matter with directions to trial court to call for original record of 7x12 extract of the disputed land and decide the suit afresh after giving opportunity to both the sides to adduce additional evidence, if they so desire and the learned trial court is also directed to take into consideration original 7x12 extract relating to the 5 suit property. 7. From above said portion of para 16 of the judgment of the District Court, it appears that the learned District Judge had doubt whether Exhibit 11 or Exhibit 37 is a genuine copy of the original record. If that was the only doubt, the learned District Judge himself could have called for original record from the Tahsil office to satisfy himself. However, it does not appear from the record that the parties wanted to lead further evidence. The issue in the suit is not whether the entries in 7x12 extracts were properly maintained and whether Exh.11 or Exh.37 is the true copy of the original entry. Parties have led oral and documentary evidence and Exhibits 11 and 37 are only some pieces of evidence before the court which are to be taken into consideration along with other evidence. 8. In my considered opinion, the 6 reason given by the learned District Judge for remand of the matter is not proper. It may be noted that in the trial court the parties have fought litigation from 1991 to 1999 and, therefore, such remand would unnecessarily put further burden on the trial court. 9. Advocate Shri V.D.Salunke submitted that application Exhibit 16 itself was not tenable under Order 41 Rule 27 of C.P.C. as it was not an application which was tendering any additional evidence before the court. It only called upon the court to call for certain record to satisfy itself. So, before the District Court passed the order of remand, it could have considered other evidence for deciding as to whether it was necessary to call for original record for its own satisfaction. 10. In the circumstances, the appeal from order is allowed. The order passed by learned District Judge-I, Ambajogai 7 on 24.3.2009 allowing Regular Civil Appeal No.158 of 1999 and remanding the matter to trial court is set aside. The learned District Judge is directed to take R.C.A. No.158 of 1999 on file, hear the parties and if he feels it necessary that the record of tahsil office needs to be called in the facts and circumstances of the case for appropriate decision in the said appeal, then he shall proceed under Order 41 Rule 28 of C.P.C and shall himself decide the said R.C.A. No.158 of 1999 without remanding the matter to the trial court. 11. Appeal from Order stands disposed of, accordingly. 12. In view of disposal of appeal from order, civil application No.4507 of 2009 does not survive and the same stands disposed of as such. Date:15/10/2009 pnd/AO103.09 (P.R.BORKAR, J.)