Case: Syeda Rahimunnisa Vs. Malan Bi (Dead) By Lrs. &amp; Anr.Etc

In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court.32. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds?33. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent’s favour.34. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect.35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.36. We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court.37. Indeed, it is clear from mere reading of the pleadings. The main case set up by the respondents for claiming title over the suit-land was founded only on the plea of adverse possession against the State. In other words, the respondents’ case was that they acquired title over the suit-land on the strength of their adverse possession in the suit-land through their predecessors who were in continuous possession over the suit-land for the last 100 years qua state. The respondents did not claim title on the strength of any grant or Lease Deed or Patta etc. issued by the State in their favour.38. The only question which, therefore, arose for consideration before the courts below was whether the respondents were able to establish their adverse possession over the suit-land as against the State so as to entitle them to claim title in their favour over the suit-land.39. The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointed out.40. We also find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members of respondents’ family was of no relevance.41. In these circumstances, the alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC.42. In the light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.43.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that thesuit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on nosay the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer ine High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to thatis a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trialrespondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointedalso find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members offamily was of nothese circumstances, the alleged gift whether executed between the two members offamily or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 ofthe light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.