Khuda Nawaz Ansari Son Of Late ... vs The State Of Jharkhand Through ...
2022 Latest Caselaw 4905 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   M.A. No. 461 of 2016
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1. Khuda Nawaz Ansari son of Late Moinuddin Ansari
2(i) Rasulan Bibi (wife)
2(ii) Hasnul Hoda (son)
2(iii) Murshid Alam Ansari (son)
2(iv) Rashida Khatoon (daughter)
2(v) Muneja Khatoon (daughter)
2(vi) Razia Khatoon (daughter)
2(vii) Hasan Bano (daughter)
2(viii) Nazmun Tara (daughter)
All are residents of Village New Pindargaria, Bhawanipur, Salagidih, PO
PS Chas, District Bokaro.
3(i) Khodeja Bibi wife of late A.G. Ansari
3(ii) Gulam Hasnain Ansari son of Late Abdul Gaffar Ansari
3(iii) Abdul Gani Ansari son of Late Abdul Gaffar Ansari
3(iv) Md. Eliyas Ansari son of Late Abdul Gaffar Ansari
3(v) Md. Ali Asgar Ansari son of late Abdul Gaffar Ansari
4. Ahsanullah Ansari son of Late Moinuddin Ansari
5. Hafizuddin Ansari son of Late Moinuddin Ansari
6. Mafizuddin Ansari son of Late Moinuddin Ansari
7. Mohiuddin Ansari son of Late Manisuddin Ansari
8. Abdul Razaque Ansari son of Late Manisuddin Ansari
9. Md. Habib Ansari son of late Manisuddin Ansari
10. Khazamuddin Ansari son of late Manisuddin Ansari
11. Md. Yasin Ansari son of late Nizamuddin Ansari
12. Abdul Quayum Ansari son of Late Nizamuddin Ansari
13. Md. Ayub Ansari son of late Nizamuddin Ansari
14. Samsuddin Ansari son of Late Allauddin Ansari
15. Fakhre Allam Ansari son of late Allauddin Ansari
16(i) Anwar Ali son of Late Kutubuddin Ansari
16(ii) Sahabuddin Ansari son of late Kutubuddin Ansari @ Pan Babu
Ansari
16(iii) Jiyaul Haque Ansari son of Late Md. Siddique Ansari
16(iv) Widow Saira Khatoon wife of late Md. Siddique Ansari
All 3(i) to 16(iv) are residents of Village New Pindarajora, Bhawanipur,
Solagidih, PO PS Chas, District Bokaro.
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17. Kamaluddin Ansari son of late Md. Hussain Ansari @ Pan Babu
Ansari
18. Md. Ishaque Ansari son of late Md. Hussain Ansari @ Pan Babu
Ansari
19. Md. Yakub Ansari son of late Md. Hussain Ansari @ Pan Babu
Ansari
20. Gayasuddin Ansari son of late Md. Hussain Ansari @ Pan Babu
Ansari
21. Md. Zafar Imam Ansari son of Late Md. Husain Ansari @ Pan Babu
Ansari
22. Nishar Ahmad Ansari son of Late Md. Husain Ansari @ Pan Babu
Ansari
23. Tajuddin Ansari son of Late Md. Husain Ansari @ Pan Babu Ansari
24. Fajle Haque Ansari son of Late Md. Husain Ansari @ Pan Babu
Ansari
25. Suleman Ansari son of Late Md. Husain Ansari @ Pan Babu Ansari
26. Abdul Sattar Ansari son of late Hussain Mohammad Anari
27. Abdul Jalil Ansari son of Late Noor Mohammad Anasari
28. Md. Khalil Ansari son of Late Noor Mohammad Anasari
29. Md. Sanaullah son of Late Noor Mohammad Anasari
30. Md. Younus Ansari son of Late Basiruddin Ansari
31. Md. Yusuf Ansari son of Late Basiruddin Ansari
32. Md. Abdul Kalam Ansari son of Late Basiruddin Ansari
33. Md. Abdul Azis Ansari son of Late Basiruddin Ansari
All from 17 to 33 are residents of Village Pindergoria, Bhawanipur,
Solagidih, PO PS Chas, District Bokaro.
                                             ...   Appellants
                              -versus-
1.   The State of Jharkhand through Chief Secretary, Dhurwa, Ranchi.
2.   The Deputy Commissioner, Bokaro.
3.   District Fishery Officer, Bokaro.
4.   The Circle Officer, Chas, Bokaro.
                                         ...   Respondents
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      CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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      For the Appellants : Mr. Ashim Kumar Sahani, Advocate
                           Mr. Ajit Kumar, Advocate
      For the Respondent: Mr. Deepak Kumar Dubey,
                           A.C. to A.A.G. II
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                                  ORDER

RESERVED ON 12.04.2022 PRONOUNCED ON 6.12.2022

This miscellaneous appeal filed under Order XLIII Rule 1(u) of the Code of Civil Procedure is against the judgment dated 26th May, 2016 passed in Civil Appeal No.16 of 2014 whereby the learned Principal District Judge, Bokaro, while setting aside the judgment passed in Title Suit No.45 of 2007, remanded the suit to the Court concerned for deciding afresh in the light of of provisions of Order XLI Rule 23(A) of the Code of Civil Procedure.

2. Learned counsel appearing for the appellants submitted that on absolutely a wrong notion and erroneous consideration, which are apparent on the face of the record, the order has been passed. As per him, the main ground for remand is at paragraphs 47, 48 and 49 of the impugned judgment, but the observations made in the aforesaid paragraphs are absolutely erroneous and against the law and in fact the learned Principal District Judge has passed the impugned judgment without appreciating the facts of the case and the materials available on record, which is impermissible. As per him Appellate Court should not have remanded the matter as there was sufficient evidence to decide the suit. The appeal being in continuation of the suit, should have been decided by the Appellate Court on the basis of the evidence led. He further submits that a fundamental error has been committed by the Appellate Court in giving direction to the Trial Court to adduce a particular document in evidence, which is impermissible in law. Further, the direction of the Appellate Court to implead the State of Jharkhand as one of the defendant, shows non-application of mind by the Court concerned, as the First Appeal itself was filed by the State of Jharkhand and not only this, the State of Jharkhand was defendant in Title Suit No.45 of 2007, thus, on this ground, he prays that the impugned judgment of remand is absolutely bad.

3. Counsel appearing on behalf of the State submits that the Appellate Court felt that it was necessary to rehear the Title Suit, thus, the matter was remanded. He contends that the First Appellate Court felt that some documents were not proved properly, so the Appellate Court has set aside the judgment passed in Title Suit and remanded the same for fresh decision and no illegality can be found in the impugned judgment.

4. To decide the issue, it is not necessary to deal with the entire facts of this case. Briefly stating, a plaint was filed, which was numbered as Title Suit No.45 of 2007, by the plaintiffs-appellants herein against the State and others. In the aforesaid suit, on the basis of the pleadings, 9 issues were

framed. The Trial Court answered the issues and ultimately, decreed the suit. The defendants in the said suit were State of Jharkhand and others. Aggrieved by the said judgment, State of Jharkhand preferred an appeal under Section 96 of the Code of Civil Procedure before the First Appellate Court. The Principal District Judge, Bokaro heard the parties and vide impugned judgment, was pleased to set aside the judgment passed by the Trial Court and remanded the matter to the Trial Judge for deciding the suit afresh in terms of Order 41 Rule 23A of the Code of Civil Procedure.

5. Order XLI Rule 23A of the Code of Civil Procedure provides for remand of cases otherwise than on preliminary point, wherein decree is reversed in appeal, and retrial is considered necessary. It is necessary to quote Order XLI Rule 23A of the Code of Civil Procedure, which reads as under:-

ORDER XLI APPEALS FROM ORIGINAL DECREE 23-A. Remand in other cases - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

6. Further, there are other provisions relating to hearing of appeal and remand of a case and remitting the issue for trial or for production of additional evidence. It is necessary to quote other provisions contained in Order XLI Rule 23, 24, 25, which read as under:-

ORDER XLI APPEALS FROM ORIGINAL DECREE

23. Remand of case by Appellate Court. - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

23-A. ... ... ...

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.

25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

7. The issue of remand has been dealt with by the Hon'ble Supreme Court in a recent judgment in the case of Shivakumar & Others Versus Sharanabasappa & Others reported in 2020 SCC OnLine SC 385. After dealing with the provisions of Order XLI the Hon'ble Supreme Court in paragraphs 26.3 and 26.4 has held as under: -

26.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23-A of Order 41 is not complete without reference to the provision contained in Rule 24 of Order 41 that enables the appellate court to dispose of a case finally without a remand if the evidence on record is sufficient; notwithstanding that the appellate court proceeds on a ground entirely different from that on which the trial court had proceeded.

26.4. A conjoint reading of Rules 23, 23-A and 24 of Order 41 brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an appellate court is to follow the mandate of Rule 24 of Order 41 CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a retrial is considered necessary that the appellate court shall adopt the course of remanding the case. It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the trial court may not be considered proper in a given case because the first appellate court itself is possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several eventualities which may justify an order of remand or where remand would be rather necessary depending on the facts and the given set of circumstances of a case.

8. Further, in the case of Nadakerappa Since Deceased by Lrs. and Others versus Pillamma Since Deceased by Lrs. and Others reported in 2022 SCC OnLine SC 387 the Hon'ble Supreme Court at paragraph 25 thereof has held as under:-

25. The Division Bench, without assigning any cogent reasons, has set aside the order of the learned Single

Judge and has remanded the matter to the Land Tribunal. It is settled law that the order of remand cannot be passed as a matter of course. An order of remand cannot also be passed for the mere purpose of remanding a proceeding to the lower court or the Tribunal. An endeavour has to be made by the Appellate Court to dispose of the case on merits. Where both the sides have led oral and documentary evidence, the Appellate Court has to decide the appeal on merits instead of remanding the case to the lower court or the Tribunal. We are of the view that, in the instant case, the Division Bench has remanded the matter without any jurisdiction.

9. On the aforesaid touch stone of law, which has been laid down by the Hon'ble Supreme Court as also keeping in mind that the appeal is continuation of suit and the Appellate Court has all the powers to decide the matter itself, if there are sufficient materials on record, it has to be seen in this case whether the order of remand was justified or not.

10. The main ground for setting aside the judgment is enshrined in the observations and directions at paragraphs 47, 48 and 49 of the impugned judgment. Paragraph 47, 48 and 49 of the impugned judgment read as under:-

47. On the facts and in the circumstances mentioned above the findings on issue of the learned court below is set-aside in the interest of justice and case is remitted back to the learned court below with the direction to direct the plaintiff-appellant to implead the State of Jharkhand as one of defendant in this case to came out with clear picture of title and also to allow both the parties to lead evidence in support of their case before their right, title, interest and possession of both the parties may be described properly in accordance with law.

48. It is further directed that after remand the State of Jharkhand or the Defendant no.1 to 4-Appellant no.1 to 4 must produce the original copy of exhibits which were marked as Ext.A to Ext.F respectively during the suit before the learned court below or any other relevant documents.

49. Apart from this the Plaintiffs-Respondents must prove the Jot Patta dated 22.04.1931 by leading proper evidence by comparing the Sale Deed from the relevant register of Sale Deed maintained in the Office of Registrar where the Jot Patta was executed.

11. The directions and the findings at paragraph 47 of the impugned judgment is absolutely erroneous as there was no scope for the Appellate Court to pass the directions as State of Jharkhand was already a party to the title suit and was represented. Further, the appeal before the Principal District Judge was at the instance of the State. In that view, the Principal District Judge completely mis-directed himself while giving direction to implead State of Jharkhand as one of the defendants.

12. Further, the direction to lead proper evidence to establish right, title, interest and possession was also beyond the jurisdiction of the learned Principal District Judge, as it is clear that a plaintiff in a Civil Suit has to stand

on his own legs and if the plaintiffs have failed to prove their right, title, interest and possession, the suit is bound to fail. The Court cannot be a party and direct the plaintiffs to lead evidence in support of their right, title, interest and possession. If there is no sufficient evidence, the suit is bound to fail and the Court must hold so.

13. Further, the direction given at paragraph 48 of the impugned judgment, also, is bad as the Court cannot direct production of a particular document and original copy of exhibits, which were marked as Exhibit 'A' to 'F' by the Trial Court. If the Principal District Judge was not satisfied with the marking of exhibits, he could have easily invoked Order XLI Rule 27 of the Code of Civil Procedure than to remand the matter.

14. Further, the direction at paragraph 49 of the impugned judgment is also bad as it is for the parties to adduce relevant evidence, which they think fit, the Court cannot direct that a particular document or particular evidence be produced. If the Court feels that in absence of certain evidence, a proper judgment cannot be pronounced, he can resort to Order XLI Rule 27 of the Code of Civil Procedure.

15. In the instant case, I am of the opinion that if at all the Appellate Court felt that in absence of a particular document, proper judgment could not have been rendered, he could have invoked Order XLI Rule 27 of the Code of Civil Procedure, and without doing so, he remanded the matter while setting aside the judgment of the Trial Court on flimsy grounds. From the materials on record, I am of the opinion that the Appellate Court should have exercised the jurisdiction vested under Rule 24 of Order XLI of the Code of Civil Procedure and if at all it was necessary, the Appellate Court should have additional invoked Rule 27 of Order XLI of the Code of Civil Procedure, rather than to remand the matter by setting aside the judgment. Thus, the procedure adopted by the Principal District Judge was absolutely bad and not in accordance with the Code of Civil Procedure.

16. Further, from the impugned judgment, I also form a view and hold that the Appellate Court, without trying to dispose of the case on merits, as a matter of course for the mere purpose of remand, has remanded the case.

17. In view of what has been held and observed above, the judgment dated 26th May, 2016 passed in Civil Appeal No.16 of 2014 whereby the learned Principal District Judge, Bokaro, while setting aside the judgment passed in Title Suit No.45 of 2007, remanded the suit to the Court concerned for deciding afresh in the light of provisions of Order XLI Rule 23(A) of the Code of Civil Procedure, is hereby set aside. The First Appellate Court is

directed to proceed with the appeal in terms of Rule 24 of Order XLI of the Code of Civil Procedure and may invoke Order XLI Rule 27 of the Code of Civil Procedure if at all necessary and the conditions enshrined in Order XLI Rule 27 are fulfilled.

18. This miscellaneous appeal is, accordingly, allowed.

19. In view of this appeal having been allowed, no order needs to be passed on I.A. No. 11129 of 2019. The said interlocutory application stands disposed of.

(Ananda Sen, J.) Kumar/Cp-02