MISC. APPEAL No.183 OF 2003 Against the judgment, dated 5th April, 1999, passed by Sri Mahendra Narayan Singh, 2nd Additional District & Sessions Judge, East Champaran, Motihari, in Title Appeal No. 81/91/3/93. 1. (a) INDRAJIT ROY S/O LATE DHENUKHA ROY 1. (b) VISHWANATH ROY S/O LATE DHENUKHA ROY 1. (C) SURENDRA ROY S/O LATE DHENUKHA ROY 2. SARJUG RAI S/O LATE BABU RAM RAI 3. (a) BALKESHI KUMAR W/O RAMASHISH ROY 3. (b) PARMANAND PD. YADAV S/O RAMASHISH ROY 3. (C) RAM AYODHYA YADAV S/O RAMASHISH ROY 3. (d) KRISHNA ROY S/O RAMASHISH ROY U/G OF HIS MOTHER BALKESHI KUMAR 4. YUGAL RAI S/O LATE BABU RAM RAI ALL RESIDENTS OF VILLAGE: AJAGRAWA, P.S.: PAKRI DAYAL, DISTRICT: EAST CHAMPARAN. …………. PLAINTIFFS-RESPONDENTS 1ST SET…….. ………Appellants Versus 1. BIJOO RAI 2. (a) UGAN DEVI W/O JANGI RAI 2. (b) SARVANAND RAI S/O JANGI RAI 3. JAMADAR RAI S/O MAKHAN RAI 4. MANAGER RAI 5. VOKINDRA RAI 6. MOHINDRA RAI 7. HARINDRA RAI SONS OF KAWAL RAI AND RESIDENTS OF VILLAGE: AJAGARWA, P.S.: PAKRI DAYAL, DISTRICT: EAST CHAMPARAN, 8. SHODARA DEVI, WIFE OF DEWAN RAI, DAUGHTER OF KAWAL RAI, RESIDENT OF VILLAGE : SUGA PIPARA, P.S. : PATORI, DISTRICT : EAST CHAMPARAN, 9. RAMDEO RAI 10. SHAMDEO RAI SONS OF JAGDEO RAI, RESIDENTS OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, 11. BALKESHI, WIFE OF BIHARI RAI, DAUGHTER OF JAGDEO RAI, RESIDENT OF VILLAGE : GOSAIPUR, P.S. : SHEOHAR, DISTRICT : SITAMARHI, AT PRESENT RESIDENT 2 OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT ; EAST CHAMPARAN, 12. DEORATIA, WIFE OF DEWAN RAI, DUAGHTER OF JAGDEO RAI, RESIDENT OF VILLAGE : DUMLA, P.S. : PAKRI DAYAL, DISTRTICT : EAST CHAMPARAN, ………DEFENDANTS 1ST PARTY ……..APPELLANTS ………RESPONDENTS ……………RESPONDENTS 1ST SET. 13. RAM NANDAN RAI 14. DAYA RAI SONS OF BUJHAWAN RAI, RESIDENTS OF VILLAGE : KHAIRA PAHARI, P.S. : SHEOHAR, DISTRICT : SITAMARHI, AT PRESENT RESIDENTS OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, 15. JALLANDHAR RAI 16. SIKANDAR RAI 17. RAMNATH RAI 18. RAM NARAYANA RAI 19. RAM BABU RAI SONS OF GAJJU RAI (WRONGLY DESCRIBED AS LAKHAN RAI), RESIDENTS OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, 20. RAMCHANDRA RAI 21. BIDESHWARA RAI SONS OF LAKHAN RAI, RESIDENTS OF VILLAGE: AJAGARWA, P.S.: PAKRI DAYAL, DISTRICT: EAST CHAMPARAN, 22. RAGHUNATH RAI, 23. KISHUN RAI 24. BUNILAL RAI SONS OF DHENUKHA RAI, RESIDENTS OF VILLAGE: TIKULIA, P.S.: MOTIHARI MUFASSIL, DISTRICT: EAST CHAMPARAN, 25. VISHUVA NATH RAI, SON OF JANAK RAI, RESIDENT OF VILLAGE : TIKULIA, P.S. : MOTIHARI MOFASSIL, DISTRICT : EAST CHAMPARAN, 26. AKALOO RAI, SON OF MOTILAL RAI, RESIDENT OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, .DEFENDANTS…RESPONDENTS 2ND PARTY…….RESPONDENTS. .RESPONDENTS 2ND SET. 27. YOGINDRA PRASAD YADAV, SON OF BANKU RAI, RESIDENT OF VILLAGE : SEKHAUNA TOLAK RUPAULIA, P.S. PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, 28. RAGHUNATH BAITHA 29. BIGAN BAITHA 30. GONAUR BAITHA 3 SONS OF GENI BAITHA, RESIDENTS OF VILLAGE : KUAWA, P.S. : PAKRI DAYAL, DISTRICT EAST CHAMPARAN, 31. LAXMI RAI 32. RUPNARAYAN RAI SONS OF MAHGAHI RAI, RESIDENTS OF VILLAGE : KAUWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHMAPARAN, 33. JAGAT NARAYAN SINGH, SON OF BRICHHA SINGH, RESIDENT OF VILLAGE : AJAGARWA, P.S. : PAKRI DAYAL, DISTRICT : EAST CHAMPARAN, .…DEFENDANTS 2ND PARTY . RESPONDEDNT 2ND PARTY……..RESPONDENTS ……….RESPONDENT 4TH SET. FOR APPELLANTS - M/s Hemendra Prasad Singh I and Anil Kumar, Advocates, FOR RESPONDENTS- M/s Rajesh Kumar and P.K. Agrawal, Advocates, P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. 1. This Miscellaneous Appeal is directed against the order dated 5th April, 1998, passed by the 2nd Additional District & Session Judge, East Champaran Motihari in Title Appeal No. 81/91/3/93 by which he set aside the judgment and decree dated 15.06.1991 passed by trial Court in Partition Suit No. 338/81/14/90 and he remanded the case with a direction to decide the Suit after considering Exhibits “C” & “D” filed by the defendants no. 5 to 9 on issue no. (iii) and also gave judgment on issue no. (vii) after hearing the parties. 4 2. The respondents-appellants filed a suit for partition for carving out his 1/5th share in the joint family property. The defendants appeared and filed written statement, however, three sets of written statements submitted by the parties. 3. On the pleading of the parties 9 issues were framed which are as follows:- (i) Is the suit, as framed, maintainable? (ii) Whether the plaintiffs have got cause of action or right to sue? (iii)Whether defendant no. 1 is the daughter of Patiram Rai? (iv) Whether Parsuram Rai left behind five daughters? (v) Whether lands of khata nos. 49, 56, 57 and 119 were the self acquisitions of Patiram Rai, Sukram Rai and Parasuram Rai? (vi) Whether the suit is bad due to partial partition? (vii) Whether the story of separation as alleged by the defendants correct? 5 (viii) Whether the plaintiffs are entitled to a decree for partition? If so to what extent and in which property? (ix) To what relief or reliefs, if any, are the plaintiffs entitled? 4. However, issues no. (iii), (iv), (v), (vi) and (vii), the parties adduced oral and documentary evidence. 5. However, the trial Court, after considering the oral and documentary evidence adduced by the parties, gave the finding of all issues. However, the trial Court took issues No. (iii), (iv), (v), (vi) and (vii), together, while deciding issue no. (iii), held that defendant no. 1 is the daughter of Patiram. While deciding issue no. (iii), (v), (vi) and (vii), held that there was no partition in the family by meets and bounds and so claim of the plaintiffs about the partition is allowed. While deciding the issues no. (ii), (viii) and (ix) the trial Court held that the plaintiffs have got cause of action and are entitled to a decree for partition, to the extent the plaintiffs prayed for in the plaint. While deciding issue no. (i) held that none 6 of the parties advance argument on the issue hence held that the suit as framed is maintainable. 6. Against the judgment and decree of the trial Court, appeal was preferred before the appellate Court, however the lower first appellate Court did not go into the question, whether the finding recorded by the trial Court is sustainable in law or not and fact but taking into consideration the submissions of the parties the lower appellate Court set aside the judgment and decree on the ground that while deciding issue no. (iii), the learned lower Court has not considered Exhibits “C” and “D” stating that no document filed by defendant 5 to 9, further on the ground that the trial Court has not given any finding on issue no. (vii), remanded the case and also gave judgment on issue no. (vii) after hearing the parties. 7. The learned counsel for the appellants, however, contends that the appellate Court without going into the merits of findings recorded by the trial Court, set aside the judgment and decree of the trial Court merely on the ground that two documents have not been considered and further contended that merely because there is some defect or infirmities on the trial Court 7 judgment is not a ground for the appellate Court to set aside the judgment and decree and remanded the case without going into the reasonings or the finding recorded by the trial Court and to decide whether the reasonings are sustainable in law or not and further it is the duty of the appellate Court being a Court of fact to dispose off the appeal on merits on well appreciating the evidence adduced by the parties given to it’s finding irrespective of the finding recorded by the trial Court and hence the appellate Court has acted clearly without jurisdiction and mechanically set aside the judgment and decree of the trial Court and remanding the case. 8. The learned counsel for the respondents, however, contended that the lower appellate Court has well considered that the documents having not been considered which has relevance for the point in issue and hence set aside the order to remand for fresh consideration. 9. On respective submissions of the parties, question for consideration, whether the order, setting aside the judgment and decree of the trial Court and remanding the case is sustainable in law. 8 10. However, the principle of remand is well enunciated, under Order XLI, Rules 23 to 28 of the Civil Procedure Code. Order XLI, Rule 23, provides that if suit is disposed off on preliminary point and the decree is reversed in appeal, the appellate Court may remand the case to trial Court. Order XLI, Rule 23 A of the Civil Procedure Code provides that when a suit is disposed off, otherwise than on preliminary point and the decree is reversed in appeal and a retrial is considered necessary the appellate Court shall have the same power as it has under Order XLI Rules 23 of the Civil Procedure Code. 11. Order XLI, Rule 24, provides that if there is sufficient evidence on the record to enable the appellate Court to pronounce judgment, the Appellate Court may after recasting the issue, if necessary, finally determine the suit. Order XLI, Rule 25 of the Civil Procedure Code, provides that where the Court from whose decree, the appeal is preferred has omitted to frame any issue to determine any question of fact which appears to the appellate Court essential to the right decision of the suit on merits, the appellate Court may frame the issue and refer the same for the trial Court 9 with a direction to take additional evidence and to return the evidence to the appellate Court together with its finding. Order XLI, Rule 26 provides that on receipt of such evidence and finding shall form part of the record in suit proceed to dispose off the appeal. Order XLI, Rule 27 provides that if appellate Court satisfy and feel that there is justification of recast additional evidence in the appellate Court on the grounds mentioned therein under Order XLI Rule 27 of the Civil Procedure Code then may take additional evidence or direct trial Court to record the additional evidence and sent it to appellate Court for its consideration. Order XLI, Rule 28 provides the mode of taking additional evidence. Hence, as per Order XLI Rules 23 and 23 A of the Civil Procedure Code provides that the order of remand can be passed in two contingencies. 12. The first contingency is under Order XLI Rule 23 of the Civil Procedure Code, if the lower Court has decided the case on preliminary issue, however, the case, this is not in the facts and circumstances of this case, as the trial Court while framing 9 issues after taking into consideration, the respective pleadings of 10 the parties and gave finding on each and every as part of the matter. 13. The next contingency is that, if the trial Court has given finding on each issue then in that case the appellate Court is required to go into the finding recorded by the trial Court and held that finding recorded by the trial Court is not sustainable and unless the trial Court going into the finding recorded by the trial Court and decides that the finding recorded by the trial Court is not sustainable and takes a decision to reverse the finding and considered that the retrial is necessary and then only in that contingency the appellate Court can set aside the decree and remand the case. However, under the present facts and circumstances of the case, the appellate Court did not go into the finding recorded by the trial Court considered, whether this finding recorded by the Trial Court suffers from any infirmity, but merely considered the submission of the parties and come to a conclusion that two documents have not been considered or a finding has not been given on issue no. (vii) and hence set aside the judgment and decree and reverse the decree without going into the reasoning of the finding recorded 11 by the trial Court and without taking into consideration that the retrial is considered necessary and remanded the case which is not the mandate of the remand as provided under Order XLI Rule 23 of the Civil Procedure Code. Further if the trial Court finds that there is some irregularities and illegalities in the decision of the trial Court then the duty has been cast on the appellate Court under Order XLI, Rule 24 of the Civil Procedure Code, being a Court of fact to go into the evidence. If there are sufficient evidence on record, to consider the issues on merit or even reframe the issues and take into consideration, the evidence and come to its independent findings irrespective of the finding recorded by the lower Court or trial Court, but the appellate Court did not proceed to consider the evidence to come to its independent finding, However, the lower appellate Court has set aside the judgment and decree of trial Court and in consequence set aside the finding recorded by the trial Court without going into the reasoning of the finding or without considering, whether the reasonings given by the trial Court are good or sustainable in law remand the case on reversing the judgment and decree without going into legality of 12 finding recorded by trial Court. Hence the lower appellate Court before reaching a stage, where the appellate Court could have taken the decision to reverse the judgment and reversed the decree and hence has exceeded the jurisdiction to set aside the judgment and decree and remand the case. 14. It is pertinent to mention here, that the power to remand has been granted subject to condition, the appellate Court comes to a finding or reverse the decree in appeal is only after the trial Court comes to a finding that the judgment and decree and the findings recorded by the trial Court suffer from infirmity. 15. However, under the present facts and circumstances of the case, the trial Court did not at all gone into the finding or reasoning of the trail Court and set aside the judgment and decree and hence exercise the jurisdiction of the remand without going to a stage of holding that the finding recorded by the trial Court is sustainable or not and hence clearly acted without jurisdiction in simply and mechanically setting aside the judgment and decree and remanding the case, merely on the ground that two documents have not been considered and further without going into the duty 13 cast on him under Order XLI Rule 24 of the Civil Procedure Code to decide the appeal on merits. However, even if the appellate Court found that there is some deficiency in the judgment and there are evidence available on record to dispose off appeal then he may have proceeded under Order XLI, Rule 24 of the Civil Procedure Code to decide appeal or if the situation so arises under Order XLI Rule 25 or Order XLI Rule 27 of the Civil Procedure Code and hence the order passed by the learned appellate Court is not sustainable in law and hence the impugned order is set aside, the case is sent down to the appellate Court to decide in accordance with law. 17. The Appeal is allowed. (Gopal Prasad, J.) The Patna High Court, The 28th day of September, 2010, N.A.F.R./Cp:3/Safik