INT11EJ4IGH COURT OF CHHATTISGARH AT BILASPUR Misc. Aopeal. No. / 2009 APPELLANTS ^laintiff) Ramawatar, S/o Sadhu, aged about 65 years, Caste-Ahir, R/o Village Batwahi, P.S. and Tahsil Lundra, Distt. Surguja (C.G.) VERSUS RESPONDENT (^fendants) : L.^ Balkeshwar, S/o Moti, aged about 35 years, by caste-Ahir, 2J, Muneshwar, S/o Moti, aged about \^£^- \^^!)^ f^ 31 years, by caste-Ahir, ^v-*\^ <\^>J ^- ^^';.'- » "" ^, Moti, S/o Sadhu, aged about 60 , ^-•:.^^^^'\ ^"? "v"" 7'' ^r""i,~= ^^h^^ years, by caste-Ahir, ^..,,--^' „„< Bashant, S/o Sadhu, aged about 57 years, by caste- Ahir, Parmeshwar Yadav, S/o Bashant, v\ aged about 30 years, by caste- Ahir, 6^ Vijay Yadav, S/o Bashant, aged about 35 years, by caste-Ahir, ^7. ^ Ramlakhan Yadav, S/o Bashant, aged about 40 years, by caste- Ahir, ?.fB.adar Yadav, S/o Sadhu,aged about 55 years, by caste-Ahir, @ Respondent no. 1 to 7 all R/o Village Batwahi, Tahsil Lundra, Distt. Surguja (C.G.), respondent no. 8 is R/o Village Jargim (Parema) P.S. Shankargarh, Tahsil Kusmi, Distt. Surguja (C.G.) ^9.^ Surguja Kshetriya Gramin Bank, through Branch Manager, Lamgaon, Surguja Kshetriya Gramin Bank, Lamgaon (C.G.) 10. State of Chhattisgarh, Through Collector Surguja Ambikapur, Distt. Surguja (C.G.) MEMORANDUM OF MISC. APPEAL U/0 43 R. 1 (u\ OF CIVIL PROCEDURE CODE 1908, ^) HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL No. 49/2009 APPELLANT Ramawatar Versus RESPONDENTS Balkeshwar and others SB:- HON'BLE SHRI N.K. AGARWAL, J 1—^"^-^ ^ PJ^IESBNT:- Shri Sunil Tripathi, Advocate, for the appellant. Shri Sanjay Patel, Adv. for the respondents No. 1, 2, 5to 7. ORAL ORDER (25-3-2011) 1. Instant niiscellaneous appeal is directed' against the remand order dated 19-2-2009 passed by the Ist Additional District Judge, Ambikapur in Civil Appeal No. 20-A/2007 whereby the mater was remanded back to the trial court for deciding the suit afresh on all issues. Facts of the case in brief are as under:- 2. Plaintiff/appellant'herein instituted a suit against the defendant for declaration ofhis title over the suit property 1 and for cancellation of sale deed dated 16-11-1999 executed in favour of the defendants No. 4 to 8. According to plaintiff, pursuant to Panch Faisla dated 20-2-1999, plaintiff executed sale deed dated 16-11-1999 in favour of defendants No. 4 to 8 with regard to the suit property at the instance of defendants No.l to 3 on a clear understanding that defendants No. 1 to 3 will pay Rs. 16,000/- i.e. amount of loan taken by the plaintiff from the bank by mortgaging the suit property. 3. Learhed trial Court based on the pleading of the parties franied following issues:- ' ^..s^ "f ^IT ^Nt^T I^T ^l^ f^TW ^-^-^^ W^^ ^ ^f^ 1^fN Pt^l^d ^ ^ 3TTW: ^R ^R^T t^T ^" ^TCT t ? ^. -^ TT ^t ^ft. "3T" ^t ^pT ^T ^I^I^I+I-Q t ? ^. ^qT ^T? 3T^T ^1?ZT t ? ^. w\w\ ^ '°w ? ^. wr ^T^pr ^RJ ^. ^s^v^ TNter 1^T 1^t^ Fic>4i<<ri ^r ^.^.^^ ^r y^cii^ ^. ^> ^TT?T ^ ^s^ sft ? ^. ^rr ^y+^cM ^i^pr ^r 1^T ^^ ^T Slf^R "^ ^T ^T ?" Learned trial Court on appreciation of evidence led, material placed and submissions made, decreed the plaintiffs suit. Respondents No. 1 and 2 went in appeal. The appellate Court having found the trial Court has not settled issues properly framed the issue as under:- "t ^TF ^TW ^.^.^^^ ^t M^ ^pr ^ ^sr ^r ^t ^ yldcti^ ^fTN? - ^ t ^^T "^T^ 1^T ^T^ ^ ^ ^WT^t ^ 1:TST ^TT^- ^o.^.^ ^T •£[? y^c^cl^K i3TT ^T f^ ^t ^HJ ^. •^- 9. ^- 1^- TI^- ~5s^ ^r ^tot ^. ^ <^ 'qT^nt, to TR: ^t. ^ tof^r ^pr ^^TT ^T-^S^V^ ^" ^" o.^Y^ N^K ^T y^i^l ^. -^ ^ '^rA ^- l\ ^RT ^t /^<-d<cfl41 ^ R<=llR<^ ^pf ^RHT ;T^ -^s^V^ '^^T o.^9> t. ^T ^T ^ o.^X? i'. ^T ^. •^- ^ ^ 5^ ^. ^- ^, <9 ^T c M<^<=I<U,, l^ra", <i^id<ci-i ^r ^STT ^t ^ RctiRa ^T ^RJ ^^-(\^/^ ^ ^HJ ^T^T l\^V;? ~^^ o.°^, 00^^, ^. ^T ^T ^. ^- ^ <s||^^c|< ^ ^TFT TK ^TR? ^.^.^^ ^r ^T?T: "qN ^TK, ^ ^3(R, -q^ ^TR: -^qTT <^f<-d^ 1^T "CT?T ^ T:TTSW ^' I^TT ^Rl^d ^T WRf ^tRTRT Pl^tR^ ^TT 1 ^ FT ^T ^^TI^? ffii; ^ y[ 1 [t- 1: ^^ -^ ->^ 1 .^v^< {w !i""^ i ^:^3£^:" and remanded the suit for decision afresh on all issues including the issues framed by the appellate court. Shri Tripathi, learned counsel for the appellant would submit, learned trial Court while considering Issue No. 1 has considered all the submissions made by the parties. The trial Court has not omitted to frame any issue. In fact, the issue fraraed by the appellate court is covered under issue no. 1 framed and tried by the trial Court and there is no need for framing of such issues. He would further submit, under Order 41 Rule 24 of Code of Civil Procedure, where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. </? On the other hand, Shri Sanjay Patel, learned counsel for the respondents No. 1 to 7 would support the judgment and decree inipugned. I have heard learned counsel for the parties and perused the record of the Court below. It is not disputed by both the parties that both the parties have led evidence to dispose of the case even on the issue resettled by the first appellate court. A bare perusal of the judgment of the trial Court would reveal that the trial Court while considering issue No. 1 had dealt with every aspect of the matter. In any case, if the appellate court was of the opinion that the issue is required to be resettled then as sufficient evidence is available on record, the appellate court after resettling the issues properly should have decided the appeal on its own merit instead of renianding the matter to the trial Court. ~u ^. -^s'^ ;'",-^«*. •// y i,: :&^ ^7y 10. In view of above, in the considered opinion of this Court, the judgment and decree passed by the Court below being not sustainable in law deserves to be and is hereby set aside. The matter is remitted back to the court below i.e. appellate court to decide the appeal after resettling the issues if so required on its own merit in accordance with law. 11. No order as to costs. Sd/- N. K. Agarwal Judge