IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.595 of 2009 1, SHAMBHU SAH, 2. Lakhan Sah, 3. Jagan Sah, All sons of Late Khirodhar Sah, residents of village Parsa, P.O.Marajadawa, P.S. – Purshottampur (Mainatand), District – West Champaran. ------------ Plaintiffs/Respondents/Appellants. Versus 1. SAHDEO SAH, 2. Mahadeo Sah, Both sons of late Babu Ram Sah, resident of village – Parsa, P.0. Marajadawa, P.S. – Purshotampur (Mainatand), District – West Champaran. ---------- Defendant/Appellant.Respondents. ------- 08. 13.07.2010 Heard learned counsel for the appellants and learned counsel for the respondents. With their consent this appeal is being disposed of at the admission stage itself. This appeal has been preferred by plaintiffs-appellants against judgment dated 30.06.2009, passed by 3rd Additional District Judge, Bettiah, in Title Appeal No. 5/2008, reversing the finding of the trial court in his favour but remanding the matter for fresh decision after giving the parties to get the suit plots and adjoining lands measured by Pleader Commissioner and also adduce further evidence, if so required. The short facts of this case is that there are two plots bearing nos. 720 and 721 and the parties claims their rights by virtue of respective purchase from the real persons and as per plaintiffs-appellants, defendant-respondent encroached upon seven dhoors of land out of plot no. 721, giving rise to the suit - 2 - which was decided in favour of the plaintiffs-appellants by the trial court. In the appeal preferred by defendant-respondents, Lower Appellate Court after considering the materials cursorily in para 12 of the judgment arrived at the conclusion that scientific measurement of the plots in question with specific report regarding the portions in their respective possession etc. was essential for determination of the controversy, which was not done. Simultaneously, he also arrived at the conclusion that the details of possession of adjoining plots owned by co-villager Khirodhar Sah is also required to ascertain whether any portion of the suit plot belonging to the parties are in his possession or not. Accordingly, Lower Appellate Court thought it proper to provide, opportunity to the parties, and remanded the matter to the trial court for fresh decision. Learned counsel for the appellant placing reliance upon a decision in case of P. Purushottam Reddy and another v. Pratap Steels Ltd. reported in (2002)2 SCC 686; wherein para 10, it has been held as such: “It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order - 3 - of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” And also upon decision reported in Kattukandi Edathil Krishnan and another v. Kattukandi Edathil alsan and others reported in (2006) 9 SCC 166; Narayanan V. Kumaran and others reported in (2004)5 SCC 26; wherein almost same view has been taken submitted that it was incumbent upon the court below to decide the appeal on its own merit on the materials available which were according to learned counsel sufficient to decide all such issues involved. On the other hand learned counsel for the respondents submitted that court below has passed appropriate order there was no scientific report which was essential for determination of the controversies between the parties. On going through the decisions of Apex Court, it is clear that the legislature has casted duty on the appellate court to finally decide the appeal. The provision as contemplated under Order 41 Rule 24 of the Civil Procedure Code which appear relevant in this appeal read as such: “24. Where evidence on record sufficient Appellate Court may determine case finally : - 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. It is the duty of the appellant to plead and prove his - 4 - case and if there is any ambiguity in the pleadings and evidence specifically as regard to identity of the subject matter of the suit, the appellate court has got no authority to permit the plaintiff to remove any such ambiguity in order to succeed. Similarly, if there is any ambiguity in the case of defendant normally, no such privilege can be granted to him also, if the lower appellate court on the basis of the materials available arrives at the conclusion that there is any ambiguity with respect to the identity of the suit land or any type of ambiguity, a like in instant case, no further opportunity could have been given to either of the side for removal of lacuna. Here it will be relevant to consider the provision as contemplated under Order VII Rule 3 of the Civil Procedure Code which reads as such: “3. Where the subject-matter of the suit is immovable property: - Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.” The lower appellate court must have decided the appeal on its own merit on the materials available which as it appears were sufficient for decision and if the court arrives at a finding that the details mentioned is not sufficient to identify the subject matter and suit suffers vagueness, let the law take its own course. Taking into consideration all such aspects, order of - 5 - the Lower Appellate Court is hereby set aside the appeal stands allowed and the court below is hereby directed to without any prejudice of the instant order decide the appeal on its own merit on the materials available and dispose it of preferably within three months on receipt of the copy of this order or communication by any means. Rajeev/ (Akhilesh Chandra, J.)