IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.365 of 2007 SRI DEVI @ SIRI DEVI @ SIRO DEVI, Daughter of late Deep Narayan Mandal and wife of Sri Shanti Prasad Mandal of village – Karari Tintenga, Post Office – Karari Tintenga, of Police Station – Gopalpur, District – Bhagalpur. ----------------------- Plaintiff/Respondent/Appellant. Versus 1. Dharbendra Prasad Yadav 2. Rabindra Prasad Yadav 3. Dhirendra Prasad Yadav 4. Narendra Prasad Yadav All are sons of late Panchanand Yadav and all are resident of village and post office – Karari Tintenga, police station – Gopalpur, District – Bhagalpur. ----------- Defendants 1st Party/Appellants/Respondents 1st Party. 5. Sarita Devi, daughter of late Jamadar Mandal, resident of village – Karari Tintenga, Post Office – Karari Tintenga, Police Station – Gopalpur, District – Bhagalpur. At present wife of Ramchandra Mandal, resident of village and post office – Simra, Police Station – Barari, district – Purnea at present police station Kursela, district – Katihar. ---------------- Defendant 2nd Party/Respondent 2nd Party/Respondent 2nd Party. ----------- For the appellants : Shri vishwanath Pd. Sinha, Sr. Adv. Shri Rajesh Kumar, Adv. Shri Sanjay Kumar Singh, Adv. For the Respondents : Shri Ratna Deep Prasad, Adv. Shri Ashok Kumar Yadav, Adv. ******** 08. 14.07.2010 Heard learned counsel for the appellant and learned counsel for respondents 1 to 4. None appeared on behalf of the respondent no.5 in spite of service of notice. This appeal has been preferred against order of the Lower Appellate Court dated 12th July 2007, remanding the Title Appeal no. 125/2005 to the trial court for a fresh decision after framing two issues namely, (1) whether the defendant 1st party has got possessory title over suit land? (2) whether suit is bad 2 for defects of parties? Simultaneously, opportunity to the parties have also been given to adduce evidence, if any, on the aforementioned issues. Learned counsel for the appellant contended that the issues framed by the trial court, had sufficiently covered all relevant questions for determination and evidence on record is also sufficient for final disposal of the appeal on its own merit. It was not at all required to be remanded for fresh decision. On the other hand, learned counsel for the respondents tried to support the direction of the Lower Appellate Court on the ground mentioned therein. In short, the relevant facts is that one Bhudeo Mandal was original owner of the subject matter of the suit besides other lands, who by virtue of deed of gift transferred 15 acres 61 decimals land to the plaintiff-appellant and by virtue of another gift 13.86 acres land was transferred to respondent no. 5. It is also admitted that defendant-respondents are purchaser of 6.05 acres of land from respondent no.5 through a sale deed. It is also a case of defendant-respondents that from brother of respondent no. 5, they purchased 4.87(or .78) land. During revisional survey operations, areas of different plots have been recorded with variation from entries made earlier. Perhaps, this is the very root of litigation between the parties. As per defendant-respondents, in spite of 6.05 acres 3 land transferred to them by respondent no.5, they are in possession of 7.25 acres, as over the same possession was delivered to them by their vendor. It is also the case of defendant-respondents that out of the land purchased from brother of respondent no.5, some of the portions have been included in other plots. It is also case of the contesting respondent that some of the portions of the relevant lands were allotted under Ceiling Act to Mahendra Harijan and Parmeshwar Harijan, but they never came in possession of the lands with respect to which Parcha was issued to them rather it remained in possession of vendor of the defendants and thereafter came in their possession. From the judgment of trial court it appears that on basis of the pleadings of the parties and materials available, he framed altogether five issues stated below: I – Is the suit as framed maintainable? II - Has the Plaintiff any cause of action to bring the suit? III - Has the plaintiff any right, title and interest over the suit land? IV – The Cadestral plot nos. 4877, 4878, 4879 and 4880 are recorded as Revisional Survey Plot No. 10752 of an area 5 Acres 48 decimals and of rest area of 57 decimals amalgamated in Revisional Survey Plot no. 10708? V – Is the plaintiff entitled to get relief or reliefs as claimed for? And accordingly decreed the suit on contest with cost giving rise to this appeal, wherein order of remand under 4 challenge was passed. It is undisputed that all the relevant documentary and oral evidence have already been adduced by the parties and there is nothing more required. Moreover, the issues suggested by Lower Appellate Court are not of such a nature which may not cover under issues 3 and 4 framed by the trial court. As provided under Order XXXXI Rule 24 of the Civil Procedure Code which reads 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.” Duty has been cast upon the appellate court to preferably decide the appeal on its own merit on basis of the materials available unless and until there is some specific requirement, which cannot be done without remanding the matter for fresh decision. From the order of the Lower Appellate Court, nowhere it appears that he after examining the materials available arrived at any such conclusion that the issues required in his opinion for decision cannot be decided on the materials available. Thus, impugned order appears not sustainable. In the result, this appeal stands allowed. Order of the Lower 5 Appellate Court is set aside and matter is remitted for disposal of the appeal on its own merit deciding all the relevant issues. Simultaneously, it is also directed that the court below must proceed expeditiously and preferably dispose of the appeal within six months from the date of the communication of the order. Let this order be communicated by Fax at the cost of the appellant. Rajeev/ (Akhilesh Chandra, J.)