IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.253 of 2009 Ramshakhi Devi wife of latye Rajendra Prasad Chourasiya ,R/o Moh: Ali Nagar, P.S. Bihar Sharif Town, Biharsharif, Disatrict Nalanda, at present residing At Chourasiya Zarda Store Moh. Chowk Bazar P.S. Biharsharif, Town Biharsharif, District Nalanda ……Appellant. Versus 1. Gayatri Devi wife of late Krishna Prasad C/o Sharwan Kumar AtgharaPanchi Sarson Tail Agency, R/o ohalla Chowk Bazar P.S. Biharsharif Town Bihar Sharif, District Nalanda. 2. Ashok Kumar son of late Krishna Prasad At present Rasi Dukan Moh: Lahari P.S. lahari Town Biharsharif, Disty. Nalanda. 3. Sharwan Kumar son of late Krishna Prasad at present Panchi Sarson Tail Agency, Moh: Lahari P.S. Lahari Town Biharsharif Dist. Nalanda. 4. Suresh Kumar son of late Krishna Prasad at Present Resident of Flat No. S/3 Venkatesh Vijay Apartment, Ratansi Nagar, Town & District Sangali, State Maharastra. 5. Jyotish Kumar son of late Krishna Prasad at present resident of Flat No. G/3 Venkatesh Vijay Apartment, Ratansi Nagar, Town & Dist. Sangali, State Maharastra. 6. Arvind Kumar son of late Krishna Prasad at Present R/o Flat No. G/4 Venkaytesh Vijay Apartment, Ratansi Nagar, Town & District Sangali State Maharastra. 7. Sanjay Kumar @ Lallu at present Resident of Bedam Dukan, near Bari Devi Mandir, Maruphganj, Town Patnacity, Dist. Patna. 8. Smt. Manju Devi wife of Arjun Prasad at present Re3sident of Aramghar, Moh Bharao Par, P.S. lqahri Town Biharsharif, Dist. Nalanda. 9. Smt. Sharda Devi wife of Lakhan Bhadani at present Resident of village Makhdumpur P.S. Makhdumpur, Dist. Gaya. 10. Smt. Sudha Devi wife of Sunil Kumar at Present Residednt of Rui Dukan, Near Tam Tam Parav, Maruphganj, Town Patnacity, Dist. Patna. 11. Sushmqa Devi wife of Ajay Kumar At present Near Sendicate Bank Town & District Dhanbad. All daughters of late Krishna Prasad Resident of Mohalla Chowk Bazar, P.S. Biharsharif, Town Biharsharif, District Nalanda ……..Respondents. ---------------------------------- 12 12.09.2011 Heard Mr. L.N. Das, the learned counsel appearing on behalf of the appellant. This appeal has been filed against the judgment and 2 decree dated 6.4.2009passed by the Ist Additional District Judge, Nalanda in Title Appeal No. 15/1985 by which he has allowed the appeal and reversed the judgment and decree of the court below. The plaintiffs who are respondents herein have filed a suit for partition of their shares to the extent of 76 paise in the property mentioned in shchedule-2 of the plaint. The plaintiffs are claiming themselves to be purchasers of 76 paise share in schedule-2 property whereas the defendants who are also purchasers have claimed the entire Schedule 2 properties and denied the title of the plaintiff’s vendor in the same. Crystallising the facts as pleaded by the parties, there is no dispute that Hakim Ahsan was the original title holder and he had two wives. According to the plaintiffs, from the first wife Hakim Ahsan got two sons and from the second wife he had got one son. The plaintiffs claim their purchase from one of the sons of Hakim Ahsan from the first wife whereas the defendants claim their purchase from the decedants of the second wife with further case that the second wife had received the property by way of oral gift from Hakim Ahsan in the year 1927, who had only one son from the first wife. The issue of existence of another son to Hakim Ahsan from first wife, oral gift by Hakim Ahsan to his second wife and the claim of adverse possession as raised by the defendants besides other issues had been considered and decided by the trial court against the plaintiff and the suit was dismissed. In appeal by the plaintiffs, the appellate court came to uphold the 3 case of the plaintiffs that Hakim Ahsan had two sons from the first wife and further also decided the issue of adverse possession against the defendants. However, the appellate court set-aside the finding of the trial court on the point of oral gift by Hakim Ahsan in favour of his second wife in the year 1977 holding that “… learned court below had not considered the matter seriously so the order on the point of oral gift ought to have been considered and it is expedient to set aside the finding of the oral gift by the court below …….” And remanded the matter for fresh finding on this issue with direction to obtain and consider documents referred in Ext. E and E/1 in original. It appears that in view of the direction in the remand the trial court made efforts to find out and procure the original of the documents referred in Ext. E and E/1. Having failed in its attempt to get the documents in original from the Municipality the trial court informed the appellate court regarding the non-availability of the documents as directed and sought direction to proceed further in such circumstance. The appellate court thereafter directed the trial court to proceed in accordance with law. The trial court, then, reconsidered the evidence available on record after hearing the parties and recorded the finding that the fact of Oral Hibba of Hakim Ahsan to the second wife Najmunisa could not be established by the defendants and returned the finding to the appellate court. In the appellate court,, thereafter, the defendants who were respondents also filed their cross-objection challenging the finding of the trial 4 court on the issue of oral Hibba. From perusal of the impugned judgment of the appellate court it appears that the appellate court has recorded that it had also tried to trace out the documents referred in Ext. E and E/1 but the same could not become available. The appeal was, therefore, decided on the basis of the evidence on record. After considering the evidence and the rival submissions, the appellate court has also come to the finding that the fact of oral gift by Hakim Ahsan in favour of second wife Najmun Nishan could not be established. Further the appellate court has also decided the issue of adverse possession against the defendants on the ground that the plaintiff and the defendants are co sharers and therefore, there can not be claim of adverse possession among co- sharers. The case of ouster as pleaded by the defendant also did not find favour with the appellate court. On the basis of these findings the appellate court allowed the appeal and reversed the judgment of the trial court. Learned counsel appearing on behalf of the appellant has submitted that the remand order by the appellate court was specific, directing the trial court to consider the documents referred in Ext. E and E/1 in original and as those documents could not become available before the trial court, it had erred in law in recording a finding contrary to its earlier finding on the basis of the same material and evidence. Learned counsel has further submitted that the trial court could have the jurisdiction to differ from its earlier finding only when some new material or 5 evidence would have come before it and not otherwise and for this purpose the learned counsel has relied upon the provision relating to remand as contained in the Code of Civil Procedure. It has been next submitted that in the appellate court the respondents had filed their cross-objection against the finding on the issue of oral gift but the appellate court did not allow the respondents an opportunity of hearing on the cross-objection and did not consider the cross objection. It has been urged that only a reference of the cross objection has been made in the judgment but no details have been discussed. It has, thus, been submitted that substantial question of law arises for consideration in this appeal. The earlier judgment of the appellate court in the first instance in which the remand order had been passed on the issue of oral gift shows that the appellate court was not satisfied with the finding recorded by the trial court on the issue of oral gift which is also clear when the appellate court had held “ that learned court below had not considered the matter seriously, so the order on the point of oral gift ought to have been considered and it is expedient to set aside the finding of the oral gift by the court below.” In the later part of the order the appellate court had pointed out deficiency in the finding on this issue by the trial court and issued a direction to make effort to obtain the original documents from the Municipality as referred in Ext. E and E/1. The submission of the learned counsel that in view of this direction the trial court should have limited itself to procure the document in original and only thereafter should have ventured to 6 record a fresh finding, if needed, considering those original documents along with other evidence, can not be accepted in view of the tenor of the appellate court judgment. It is manifest that the finding on oral Hibba, on the basis of available evidence on record less the original document as referred in Ext .E and E/1, was not affirmed by the appellate court and the remand order with this reversal of the finding attained finality . As such the remand order cannot be taken to be limiting the scope of the trial court to consider its finding only on the availability of the documents in original as referred. Further more, when the fact of non- availability of the required documents was brought to the notice of the appellate court, it still directed the trial court to proceed in accordance with law. The trial court had rightly proceeded thereafter and recorded its finding on the basis of the evidence on record. The finding is to be arrived at by a court taking over all view of the entire evidence and this process is not like a mathematical formula. The absence of documents in original or referred in Ext. E and E/1 from evidence might have its impact but it cannot be accepted that the court below should have arrived to the same finding in that circumstance. Even thereafter the said finding had been sent to the appellate court below wherein the appellants filed their cross objection. The cross-objection filed by them related to the finding recorded against them on the issue of oral gift. The said issue and the finding have been fully considered by the appellate court which has recorded a finding of fact that there was no oral 7 gift by Hakim Ahsan in favour of his wife Najmunnisa. The thorough and detail consideration of evidence in view of the submission of both the parties is apparent from the impugned judgment of the appellate court. The submission regarding non- consideration of cross objection has no force in view of the fact appearing from the impugned judgment itself that the appellants/defendants have been finally heard on the issue of validity of oral Hibba and legality of the finding of the trial court. In view of the aforesaid discussions no substantial question of law arises for consideration in this appeal. It is accordingly dismissed. M.Rahman (V. Nath, J)