IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.128 of 2005 MATRU SOREN, S/O LATE MUSSO SORE, R/O KARIGHATI, P.O. SHYAMPUR (KACHAHRI) P.S. HAVELY KHARAGPUR, DISTRICT MUNGER .. APPELLANT Versus 1. JAIPAL MARANDI, S/O LATE PURAN MARANDI 2. LALBABU MARANDI, S/O DOMAN MARANDI 3. SOMAR SORAN, S/O LATE MUNSI SOREN ALL RESIDENTS OF KARIGHATI, P.O. SHYAMPUR *KACHAHRI) P.S. HAVELY KHARAGPUR, DISTRICT MUNGER 4. NANKKU MANRANDI, S/O LATE MANJHALA MARANDI, R/O VILLAGE UMI BANBARSHA, P.O. RATANPUR, P.S. BARIYARPUR, DISTRICT MUNGER .. RESPONDENTS **** FOR THE APPELLANT .. M/S RAJENDRA NARAIN, KAMAL KISHORE JHA, SANJAY KR. SRIVASTAVA & RAINA KUMARI, ADVS. FOR THE RESPONDENTS .. MR. AJIT SINGH, ADV. **** /12/ 30 July 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 28.12.2004, passed by the Additional District Judge, VII, Munger, in Title Appeal No. 11 of 2004, by which he has set aside the judgment and decree, dated 19th and 29th January, 2004, in Title Suit No. 56 of 1995 and remanded the case to the lower Court with a direction to make one Havildar Soren as defendant and to issue notice to appear in the suit to 2 put up his case if he likes with further direction to give fresh findings on all issues. 3. The defendant-respondent is the appellant before this Court. The plaintiffs-appellants are respondents who filed a suit of partition for carving out his share in the land of the share of Deven Soren on the ground that 136 bigha and odd land acquired jointly by settlement by kabuliat from ex- Raja in favour of Manjhla Manjhi, Muso Manjhi, Devan Manjhi, Fagu Manjhi and Mahla Manjhi, son of Bhagalu and Sonara Manjhi. The genealogy has been given at the foot of the plaint. All the aforesaid settlees are descendants of common ancestor. Devan Manjhi died issueless in 1950. In the year 1970 parties partitioned the 136 bigha and odd, but, land of the share of Devan Manjhi remained joint between the parties and this suit has been filed for partition of the land of the share Devan Manjhi which is the subject matter of the suit out of them Musho Manjhi is defendant and rest, except Devan Manjhi, are the plaintiffs. 4. The case of the defendant that all the settlee is not the descendants of one common ancestor. All settlee except Devan Manjhi are of separate different family and Devan Manjhi was in the branch of defendant and has given 3 different schedule for genealogy. However, the defendant challenged the genealogy given by the plaintiff and asserted that Devan Manjhi was of the branch of defendant and the rest of the settlees were of different branch having no concern with the defendant and so the land of Devan Manjhi was exclusively in possession of the defendants-respondents and it is also denied that the appellant are in joint possession of the land. 5. The trial Court on pleading framed eleven issues, parties adduced evidence and trial Court gave finding on all issues after considering the evidence and held that the plaintiffs have not proved their joint possession over suit property with defendant, the suit suffer from non-joinder, suit as framed not maintainable, plaintiffs have no cause of action and some of their ancestor’s had supported the share of defendant’s father, Muso, over said land which was subject matter of proceeding under Section 145 of the Criminal Procedure Code and dismissed the suit, holding plaintiff is not entitled to any relief. 6. On appeal the learned lower appellate Court did not go into the question of the finding of facts recorded by the learned trial Court. The appellate Court held as follows : 4 “............ by going through this order of 145 of the Criminal Procedure Code (Exhibit 3), I found that Muso, (father of the defendant-respondent- appellant) was first party in the proceeding. Some of the appellants are witnesses for Muso Manjhi in the proceeding, they supported the case of Muso Manjhi. This plaintiff-appellant and Muso Soren denied the right of Havildar Soren and others. In the finding of the order the learned Magistrate has held that first party with his co-sharer is in actual physical possession. He also held the possession of the third party, Mune Soren and others and case of both the parties is that Deven Manjhi is son of Bheem Manjhi and Devan Manjhi died issueless. Between the parties have denied the genealogy of each other. In the proceeding under Section 145 of the Criminal Procedure Code, second party, Havildar Soren, came with a different case. He stated that Bheem Manjhi has two sons, namely, Devan Manjhi and Bandhu Manjhi and both were member of joint family. Devan Manjhi died issueless with Bandhu Manjhi. He is nephew of Devan Manjhi, son of Budhu Manjhi so is in possession of entire land of 27 bigha of Deven Manjhi. In this order the possession of Havildar Soren was denied by the appellant and father of respondents. They had not challenged the case of Havildar Soren that he is nephew of Devan Manjhi. In the proceeding under section 145 of the Criminal Procedure Code appellant and respondents colluded 5 together and ousted Havildar Soren and now both are claiming close patedar of Devan Manjhi. In this suit, absence of Havildar Soren does not look proper. Both the parties claiming the suit land on the basis that Devan Manjhi died issueless and has any near relative, but, the case of Havildar Soren in proceeding under Section 145 of the Criminal Procedure Code is that Bheem Manjhi has two sons, namely, Devan Manjhi and Budhu Manjhi who constitutes a joint family. In this circumstance, the presence of Havildar Soren is essential in this suit. It appears that due to some reason both the parties have avoided Havildar Soren in this case. In absence of Havildar Soren justice can not be done when the Court come to know an another man is also there, who has claimed the said land so the presence of that person in the suit is essential.” 8. Hence, on that basis set aside the judgment and decree of the trial Court and remanded the suit for fresh consideration with direction to make Havildar Soren as defendant. 10. The learned counsel for the appellant contended that the lower appellate Court without considering the finding recorded by the trial Court on the issues framed, set aside the judgment and decree and held that presence of Havildar Soren 6 in the suit is essential on the ground that Exhibit “3”, the final order passed in a proceeding under Section 145 of the Criminal Procedure Code mentions that Havildar Soren claim the land in suit being nephew and co-sharer of Deven Manjhi which was not challenged by the appellant. It has, further, been contended that setting aside the judgment and decree and remanding the case on the ground, mentioned above, without going into the legality of the finding recorded by the trial Court is against the mandate of Order XLI Rule 23A of the Civil Procedure Code. It has, further, been contended that the trial Court proceeded to make out a third case that the presence of Havildar Soren is essential as he claim the suit land which has not been challenged whereas none of the parties, in the suit, in their pleadings has pleaded that Havildar Soren has any right nor it is admitted that Havildar Soren had any right in the property rather in Exhibit “3” itself there is specific mention about the denial of the claim of Havildar Soren is nephew and co-sharer of this defendant-respondent- appellant before lower appellate Court. It has, further, been contended that Exhibit “3” is the order passed in a proceeding under Section 145 of the Criminal Procedure Code which was passed in the year 1966 in which the possession of defendant- 7 respondent-appellant was declared with regard to the suit property and Havildar Soren was also a party, but, Havildar Soren or his heirs did not challenge the order passed in a proceeding under Section 145 of the Criminal Procedure Code, but, the lower appellate Court without considering the question of limitation or without considering the fact that Havildar Soren or his heirs has not challenged the order in a proceeding under Section 145 of the Criminal Procedure Code ordered that the presence of Havildar Soren is essential when the claim of Havildar Soren has specifically been denied by the defendant-respondent-appellant and the impugned order is not sustainable and has relied upon the decisions decisions reported in (2003)4 P.L.J.R., 810 (Awadhesh Kumar Mishra & Ors. Vrs. Sona Devi & Ors.) and (2008) 1 P.L.J.R., 266 (Jai Kishun Rai & Ors. Vrs. Nandu Rai & Ors.). 11. The learned counsel for the respondents, however, supported the order. 12. Hence the question for consideration is that whether the impugned order of remand is sustainable in law or not. 13. However, principle of remand guided under 8 Order 41 Rules 23 to 26 of the Civil Procedure Code. Order XLI Rule 23 of the Civil Procedure Code provides that if a suit has been decided only on preliminary points and decree is reversed in appeal then the case be remanded. Order XLI Rule 23A of the Civil Procedure Code provides that if the decree is reversed in appeal and retrial is considered necessary the appellate Court has same power as it has under Rule 23 of the Civil Procedure Code, i.e., has power to remand. Order XLI Rule 24 of the Civil Procedure Code had that when evidence on record is sufficient appellant Court may determine the case finally. Order XLI Rule 25 of the Civil Procedure Code provides that if the appellate Court find that trial Court has failed to frame or any issue which is essential to the right decision of the suit upon the merits the appellate Court may frame issue and refer the same for trial to trial Court from whose decree the appeal is preferred and in such case shall direct such Court to take additional evidence and trial Court shall proceed to try such issue and shall return the evidence with it’s finding on the issue to the appellate Court and after receipt of evidence and finding as provided under Order XLI Rule 26 of the Civil Procedure Code provides that the appellate Court shall proceed to determine 9 the appeal. 14. Hence, as per provision under Order XLI Rules 23 and 23A of the Civil Procedure Code a remand can be made in two contingencies, first, under Order XLI Rule 23 of the Civil Procedure Code if the case is decided on preliminary issue and the order is reversed in appeal. The second contingency, if decree is reversed in appeal and a retrial is considered necessary. But, for reversing a decree in appeal the appellate Court required to go on to consider the finding and come to a conclusion that the finding recorded by trial Court on issues framed after due consideration of the evidence on issue is illegal and there is reason to reverse the finding then the judgment and decree is reversed and due consideration that retrial is necessary. 15. However, under the facts and circumstances the trial Court framed eleven issues and gave finding on all the eleven issues after considering all the evidence on all the issues. Hence, this is not a case in which the suit is decided on preliminary issue and, Order XLI Rule 23 of the Civil Procedure Code is not applicable. However, in fact and circumstances, since, the trial Court framed eleven issues and on all the eleven issues finding recorded after considering the 10 oral and documentary evidence. But, the lower appellate Court did not go into the finding recorded by the trial Court neither hold that the finding recorded by the trial Court is perverse or illegal nor gave any reasoning for setting aside the finding recorded by the trial Court on issues framed and set aside the judgment and decree of the trial Court on the ground mere consideration of Exhibit “3” that since Havildar Soren claim the land, hence, his presence is necessary. Hence, the order of remand passed on considering that Havildar Soren claimed in Exhibit “3” in a proceeding under Section 145 of the Criminal Procedure Code. 16. Hence, the order of remand challenged on two grounds that finding recorded by the trial Court was set aside without going into the legality of the finding and remanding the case and second on the ground that in Exhibit “3”, Havildar Soren claimed to be the informant of Deven Manjhi has not been challenged by the appellant and father of the respondents, which is against the fact on record as in Exhibit “3” itself which has been mentioned as follows : “Munshi Soren, in his affidavit, has corroborated fully the case of the first party. He at paragraph 3 of his affidavit has stated that all the co-sharers and 11 their heirs and successors in interest cultivated the entire 136 bigha jointly and divide the proceeds according to their share and on some portion they and members of third party have got their houses. At paragraph 4 he has stated that Deven Manjhi live jointly with first party and died issueless. At paragraph 5 of his affidavit he has stated that the claim of second party, Havildar Soren, that he is nephew of Deven Manjhi is false. 17. Hence, it is apparent that in Exhibit “3” there is specific mention that Muso Manjhi who was father of defendant has challenged the claim of Havildar Soren as nephew of Deven Manjhi. Hence, the finding of the lower appellate Court that since Havildar Soren claim to be the nephew of Deven Manjhi was not challenged and, hence, is necessary party is not sustainable without considering the finding or going into legality of the finding recorded by the trial Court on issues framed and, hence, reversing the finding without coming to a stage when after he had to judicially consider the entire evidence and the facts and circumstances of the case and had to come to the conclusion that decree 12 under appeal should be reversed or set aside and before he had come to that conclusion remanding the suit is unsustainable and is against the mandate of the Order XLI Rule 23A of the Civil Procedure Code. However, if the lower appellate Court would have considered that any important issue is left over by the trial Court require to be framed then the lower appellate Court may have framed an issue and have directed the lower Court to take evidence on issue and sent back along with it’s finding to the appellate Court and appellate Court after receipt of finding on issue may have proceeded to decide the appeal. 18. The learned counsel for the respondents, however, relied on decision reported in 2007 (4) P.L.J.R., 135, in this case the lower appellate Court remanded the case to fresh hearing when there was sufficient evidence on record and in the facts and circumstances of the case it was held that when there was sufficient evidence before appellate Court enable it to pronounce judgment on merit it should have examined it’s own judgment on merit and decide the appeal and if any new issue is necessary to be framed it should have framed the issue and refer the same for decision of the trial Court after taking additional evidence and the order of 13 remand should not be passed as a matter of course. 19. Hence, under facts and circumstances of this case the appellate Court did not go into the finding recorded by the trial Court and reverse the judgment and appeal and remand the case. However, the lower appellate Court if considered that if any new issue is necessary it would have frame the issue and refer the same for decision of trial Court after taking additional evidence and ought not have passed an order of remand and, hence, the principle enunciated in 2007 (4) P.L.J.R., 135 (supra) is well applicable that lower appellate Court may have frame issue and refer the same under Order XLI Rule 25 of the Civil Procedure Code for decision on the point of reversal 20. However, the appellate Court ordered to make Havildar Soren a defendant on the ground that in Exhibit “3”, an order passed in 1966 in a proceeding under section 145 of the Criminal Procedure Code, Havildar Soren lodged a claim that he is the nephew of Deven Manjhi which was denied by the appellant and order passed against the Havildar Soren in proceeding under Section 145 of the Criminal Procedure Code and there is nothing on record to suggest that Havildar Soren ever took any step against the order passed in the proceeding 14 under Section 145 of the Criminal Procedure Code which is Exhibit “3”. It is not case of either party to suit that Havildar Soren had any right in the property nor there is any evidence or admitted case of the parties that Havildar Soren has any right, title and interest in property. However, the learned lower Court took into consideration Exhibit “3” an order, passed in a proceeding under Section 145 of the Criminal Procedure Code between the appellants in one side and Havildar Soren in other side and one Mune Soren, a third party. The order passed in 1966 in which possession decided in favour of the appellant. Against the said order Havildar Soren did not proceed either in suit or any other proceeding. 21. However, on the basis of the averment made in order passed in 145 proceeding the appellate Court considered that case of Havildar Soren that Bhim had two sons, Deven Manjhi and Bandhu Manjhi, both were members of joint family. Devan Manjhi died issueless with Budhan Manjhi. Havildar Soren is newphew of Devan Manjhi and son of Budhu Manjhi, so has a claim over entire land of 27 acres and held that in this order possession of Havildar Soren is denied by appellant and father of respondents. They had not challenged the case of Havildar Soren that he is nephew of Devan Manjhai. 15 22. Hence, the sheet anchor of the order of remand by appellate Court took the fact considered by Magistrate order under Section 145 of the Criminal Procedure Code that in said proceeding Havildar claimed to be nephew of Devan Manjhi and the lower appellate Court held that this is not challenged. But this is a fact against the record and can be well founded in Exhibit “3” the order in proceeding under Section 145 of the Criminal Procedure Code itself. There is specific mention in order Exhibit “3” that Musho Soren in his affidavit fully corroborated the case of first party and it has further been mentioned in Exhibit “3” that in paragraph 5 of his affidavit it has been stated “claim of second party, Havildar Soren, is that he is nephew of late Deven Manjhi is false”. 23. Hence, in the said order under Section 145 of the Criminal Procedure Code it has well been mentioned that appellant has denied the claim of Havildar Soren as nephew of Devan Manjhi. Hence, the decision of the appellate Court, itself, apparently to be on wrong fact beyond record. 24. Hence, Havildar Soren claimed in proceeding under Section145 of the Criminal Procedure Code of being nephew of Devan Manjhi has been denied by the appellant 16 and Havildar Soren having lost and hold not in possession against which no action taken and order is of the year 1966, hence, even, if any, right is there also barred by limitation as the present suit is of the year 1995, i.e., after thirty years of the passing of order in a proceeding under Section 145 of the Criminal Procedure Code by order of remand to add him as party to raise his claim does not appear to be justified without any basis and it is neither the admitted case of party that Havildar Soren had any right, title and interest in the property nor anything on record to suggest that Havildar Soren had any right. 25. The learned counsel for the appellant, however, relied upon decisions reported in (2003)4 P.L.J.R., 810 (Awadhesh Kumar Mishra & Ors. Vrs. Sona Devi & Ors.) where it has been held that whenever it is found that something which is fatal has not been decided by the trial Court and the same can not be decided by the appellate Court because of lack of proper material on record then only a remand can be order, however, the principle decided is on the basis of the pleadings of the parties, but, not making out a third case. None of the parties have pleaded that Havildar Soren was a necessary party or has any right, title and interest 17 and if the Court finds that he was a necessary party then the suit may fail if he has not been made a party or even if decreed that may not bind Havildar Soren. The decision reported in (2008) 1 P.L.J.R., 266 (Jai Kishun Rai & Ors. Vrs. Nandu Rai & Ors.). The fact and circumstance of the case mention that one Jhapsi Devi was not made a party and though it has come that the title passes through her the case was remanded on the ground that she has not been made party, but, it was found in the record, itself, that said Jhapsi Devi has given evidence disclaiming her right and in view of her evidence said Jhapsi Devi, according to her claim has no share or interest in the suit property and the order of remand was set aside and held that Title Appeal in continuation of suit Court has full power to decide all questions of facts and law and also to frame issue or to take any evidence which it deems necessary for the proper adjudication of the case and held that the learned lower appellate Court has failed to discharge it’s legal duty without apply it’s mind and without taking necessary steps in the appeal. However, here under the facts and circumstances of the case there is no material to suggest that that title passed through Havildar Soren or was heir of Deven Manjhi have the ratio decided is not applicable. 18 26. However, having regard to the discussions, made above, and the facts and circumstances of the case, the order of remand passed by the lower appellate Court is hereby set aside and the case is remitted back to the lower appellate Court to decide in accordance with law. 27. With these observations and directions, this Miscellaneous Appeal is allowed. A.F.R. Cp:3/S.A. ( Gopal Prasad, J. )