Jharkhand High Court
Mahabir Pandey @ Badhan Pandey vs Murlidhar Pandey on 12 May, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.470 of 2018
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Mahabir Pandey @ Badhan Pandey S/o Late Shiv Sevak Pandey, R/o
Village Horam Shivadih, P.O. & P.S. Barkagaon, District Hazaribag.
... Appellants
-versus-
1. Murlidhar Pandey
2a. Madhubala Devi W/o Late Hiramana Pandey
2b. Onkarnath Pandey S/o Late Hiramana Pandey
Both residents of Village Horam, Shivadih, P.O. & P.S. Barkagaon, Distt.
Hazaribag.
3. Tapeshwar Pandey
4. Mithilesh Kumar Pandey
Both sons of Late Shivdeo Pandey, R/o Village Horam Shivadih, P.O. &
P.S. Barkagaon, District Hazaribag.
... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellants : Mr. Sudhir Kumar Sharma, Advocate
For the Respondents : Mr. Arun Kumar, Advocate
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ORDER
RESERVED ON 02.05.2022 PRONOUNCED ON 12.05.2022
This miscellaneous appeal under Order XLIII Rule 1(u) of the
Code of Civil Procedure has been filed challenging the judgment dated 13th
June, 2018 and decree signed on 26th June, 2018 passed by the Principal
District Judge, Hazaribag in Title Appeal No.7 of 2018.
By the aforesaid judgment and decree, the Principal District Judge
had set aside the judgment dated 8th December, 2017 (decree dated 19th
December 2017) passed by the Civil Judge Junior Division, Hazaribagh in Title
Suit No.63 of 2004 and remanded the matter to the Trial Court for fresh
decision, after framing two new additional issues.
2. A plaint was filed by the appellants for declaration of right, title and
interest over the suit land and for confirmation of possession over the same.
They also prayed for perpetual injunction in relation to the land mentioned in
schedule of the plaint. The suit was contested by the defendants by filing
written statement. The Trial Court framed 9 issues, which are as follows: -
I. Is the suit maintainable in its present form?
II. Has the plaintiff got any cause of action for the
suit?
III. Is the suit barred by law of limitation and
adverse possession?
IV. Whether the suit is barred by acquiescence,
estoppels, resjudicata and waiver?
V. Whether the suit is barred under provisions of
Specific Relief Act?
VI. Has the plaintiff get valid title and possession
over the suit land?
VII. Has the plaintiff right to get decree of
perpetual injunction over the suit land against
the defendants?
VIII. Has the plaintiff entitled to get decree of cost
and other reliefs as prayed for?
IX. To what relief or reliefs, if any, the plaintiff is
entitled to?
3. After considering the evidence, both oral and documentary, led by
the parties, the Trial Court decreed the suit in favour of the plaintiff.
Challenging the judgment and decree passed by the Trial Court, the
defendants preferred an appeal before the Principal District Judge, Hazaribagh
under Section 96 of the Code of Civil Procedure. The aforesaid appeal, which
was registered as Title Appeal No.7 of 2018, was heard by the Principal
District Judge, Hazaribagh. The First Appellate Court, after perusing Exhibit 2,
which is a "Sada Hukumnama" found that in the said Hukumnama, Plot
No.1651 was not mentioned, which was purchased by sale deed - Exhibit 8/D
and through Hukumnama dated 25.01.1950 plot No.1651 was rectified as plot
No.1657 and 44 decimals land out of 52 decimals of plot No.1657 was settled
in favour of the plaintiff. The Court also expressed doubt as to how the
executor of Hukumnama had right to execute the same in relation to plot
No.1657 in the Hukumnama. The Court casted a doubt about the right of the
executor of the Hukumnama. After raising a doubt, the Appellate Court felt that
two vital issues were not properly framed. The First Appellate Court also found
other findings of the Trial Court with regard to Issues Nos.6 and 7 as to
suffering from non-consideration of the validity of Exhibit 2, which is the
Hukumnama in the light of sale deed dated 08.04.1916 Exhibit 8/D. Thus, the
First Appellate Court set aside the findings of the Court below in respect of
Issues Nos.6 and 7. The Court also held that since findings in Issues Nos.6
and 7 is set aside, consequently decision in respect of other issues were also
set aside. Appellate Court, thereafter, framed two issues and directed the Trial
Court to re-admit the suit in its original number and proceed to determine the
suit on the basis of the evidence recorded in the original trial subject to just
exceptions.
4. Being aggrieved by the aforesaid order of remand, the plaintiff has
preferred this appeal.
5. Counsel appearing on behalf of the appellants submits that the
First Appellate Court completely misdirected himself by passing the impugned
judgment. It is his contention that the First Appellate Court is also a Court of
fact and that being so, the Court should have re-appraised the entire evidence
and should have come to an independent conclusion when in fact all the
evidences are on record. He submitted that the First Appellate Court had set
aside the judgment and remanded the entire suit, which is not in accordance
with the provisions of Order XLI of the Code of Civil Procedure. He submits
that the issues, which were framed by the First Appellate Court could have
been easily dealt with by the First Appellate Court himself and the remand of
the entire suit after setting aside the judgment of the Trial Court was not
warranted. It is his submission that the First Appellate Court had abdicated the
jurisdiction vested upon him under the Code of Civil Procedure while passing
the impugned judgment of remand.
6. Counsel for the respondent appeared and submitted that the First
Appellate Court felt that two vital issues are necessary, which were, in fact, not
decided by the Trial Court and, thus, had set aside the judgment and directed
the Trial Court to give findings on the new issues framed. The First Appellate
Court, thereby, has committed no illegality.
7. I have heard the counsel for the parties and have gone through
the Lower Court Records.
8. Admittedly, the Title Suit was decreed in favour of the plaintiff. The
defendants challenged the judgment and decree before the First Appellate
court. The First Appellate Court felt that two vital issues were not framed by
the Trial Court, thus, the Appellate Court framed two issues and directed the
Trial Court to re-admit the suit and proceed to determine the suit. The
aforesaid judgment suggests that after setting aside the judgment and decree
passed by the Trial Court, the Principal District Judge remanded the case to
the Trial Court for fresh decision after framing two new issues. The order of
this remand is under challenge. The only contention to be decided in this
appeal is as to whether the First Appellate Court has rightly exercised the
jurisdiction in remanding the case to the Trial Court for fresh trial.
9. To appreciate this case, it is to be understood as to what are the
provisions in the given situation in the Code of Civil Procedure for remanding a
case.
10. There are three provisions under the Code of Civil Procedure,
which deals with the power of the Appellate Court to remand a case to the
Trial Court, which are Order XLI Rule 23, Rule 23A and Rule 25.
11. Order XLI Rule 23 of the Code of Civil Procedure gives power to
the Appellate Court to remand a case when the suit is disposed of on
preliminary point. In a situation when the Trial Court disposes of a suit only on
the preliminary issue, the Appellate Court then can set aside the judgment of
the Trial Court and remand the case to the Trial Court with a direction to re-
admit the suit under its original number and proceed to determine the suit. The
evidence, if any, recorded during the original trial, subject to all just exceptions,
will be evidence during the trial after remand.
12. Order XLI Rule 23A of the Code of Civil Procedure provides for a
remand to the Trial Court where the suit has been decided otherwise than on
a preliminary point. In an appeal where the suit has been decided otherwise
than on a preliminary point, if the Court feels the decree has to be reversed
and a re-trial is considered necessary, the Appellate Court can exercise the
same power it has under Rule 23.
13. Order XLI Rule 25 of the Code of Civil Procedure provides for
remand by the Appellate Court when it finds that it is essential for a right
decision of the suit to frame further issues. If the Appellate Court feels that for
correct decision, some issues need to be framed, which were not framed by
the Trial Court, the Appellate Court can pass an order of remand, remanding
the case to the Trial Court after framing the issues and direct the Trial Court to
take evidence and record findings on the said issues and return to the
Appellate Court the findings, on the newly framed issues to the Appellate
Court for proper decision of the appeal. In this case the Appellate Court retains
the appeal to itself.
14. Another provision is very important, which is Order XLI Rule 24 of
the Code of Civil Procedure, which provides that where there are sufficient
evidence on record, the Appellate Court may resettle the issues and
pronounce the judgment finally after determining the recasted / resettled
issues. In this scenario, it will be immaterial whether the Trial Court proceeded
upon some other grounds than what the Appellate Court intends to proceed.
This provision provides that if there are sufficient evidence on record, the
Appellate Court can recast the issues and/or can frame new issues and decide
the appeal.
15. Thus, if the aforesaid provisions of law are summed up, I find that
if a judgment, which is passed solely on the preliminary point, is challenged
before the Appellate Court and the Appellate Court wants to differ with the said
findings and is of the opinion that the entire suit be decided, he can remand
the case to the Trial Court to decide all the issues passed on the evidence
already recorded by the Trial Court and in case where no evidence was
recorded, the Trial Court, on remand, should record evidence and decide the
suit. In this scenario, suit is admitted under its original number.
16. Further, in a situation if the suit is decided on merit on all the
issues framed, the First Appellate Court feels that the judgment and decree of
the Trial Court needs to be reversed in the appeal and there is a necessity of
retrial, then the Appellate Court will remand the matter for retrial, in which case
the Appellate Court will have the same power as vested upon the Court in
terms of Order XLI Rule 23 of the Code of Civil Procedure. In this scenario, the
Appellate Court should give reasons as to why there is a necessity of re-trial. If
the Appellate Court feels that some additional issues need to be framed, the
Appellate Court can frame the said additional issues and in a situation if the
Appellate Court feels that there is no sufficient evidence on record to decide
the additional issues, the Appellate Court will remand the case to the Trial
Court, but only for a limited purpose. The remand would be only for the
purpose of recording evidence on the newly framed issues and to arrive at a
finding on these issues and after recording the findings on these issues, the
Trial Court is duty bound to return the findings to the Appellate Court
whereafter the Appellate Court has to decide all the issues afresh. In such
scenario the Appellate Court retains the appeal. Where the Appellate Court
finds that issues to be recasted and additional issues are necessary to be
framed and to answer the said issues, which have been framed, the evidence
already exists, the Appellate Court should not remand the case, rather has
power to recast the issues and/or frame additional issues and proceed on the
evidence which are on record. Aforesaid finding is supported by the decision of
the Hon'ble Supreme Court in the case of J. Balaji Singh versus Diwakar
Cole & Others reported in (2017) 14 SCC 207 and in the case of Shivakumar
& Others Versus Sharanabasappa & Others reported in 2020 SCC OnLine
SC 385.
17. To decide the instant case, I have to see in which category this
case falls and whether retrial was necessary or not.
18. Admittedly, the suit which was decided bearing Title Suit No.63 of
2004 was not decided on preliminary point. The suit was contested and the
Court passed a judgment decreeing the suit answering all the points. The
Appellate Court felt that two issues were not framed by the Court, which
should have been framed. The issues, which the Appellate Court has framed
are as under:-
(1) Whether plot no.1651 of registered sale deed
no.464, dt. 08.04.1916 can be rectified as plot
no.1657 by a sada Hukumnama by the purchaser
or their descendants?
(2) Whether on the basis of Hukumnama Ext.2 dt.
25.01.1950 which even does not disclose the
source of right of executor with regard to land of
Khata no.44, Khewat no.2/1, plot no.1657 having
0.52 acre of village - Horam Shivadih, P.S.
Barkagaon, P.S. no.123, District Hazaribag,
plaintiff Mahabir Pandey got valid, right, title and
possession over the suit land?
19. If the aforesaid two issues are understood properly, it will be clear
that these two issues are essentially a question of law, which had to be
decided in the appeal. Reframed Issue No.1, in fact, relates to the question as
to whether a plot number of a registered sale deed can be rectified by a Sada
Hukumnama by the purchaser or their descendents. This is an essential
question of law. Further, if the second issue is read properly, I find that the
same is also a question of law, which would be whether on the basis of a
Hukumnama, which does not disclose the source of right of executor with
regard to particular land, no person can derive valid right, title and interest over
that land through the said Hukumnama. I find that to answer these questions,
only material which are necessary are the registered sale deed and the
Hukumnama. Admittedly, the registered sale deed and the Hukumnama are on
record. Thus, when these documents are on record, the Appellate Court could
have easily decided these additional issues, which were framed by him. These
two questions of law should have been decided by the Appellate Court and
thereafter should have applied the same with the facts of this case. Without
deciding these newly framed / recasted issues, which is a question of law, the
Appellate Court directed the Trial Court to re-admit the suit under the original
number and proceed to determine the suit. The operative portion of order of
remand is as under:-
"Further court below is also directed to re-
admit the suit under its original number in the
register of civil suits, and proceed to determine the
suit, and the evidence recorded during the original
trial shall, subject to all just exceptions, be evidence
during the trial after remand. Court below is also
directed to adjudicate the suit preferably within six
months."
20. From the aforesaid conclusion, I am of the opinion that the
Appellate Court has exercised power under Order XLI Rule 23A as because
admittedly the suit was not decided on the preliminary point, which is evident
from the judgment of the Trial Court and also from paragraph 29 of the
judgment of the First Appellate Court.
21. On the facts of this case, what has been stated above, the
remand could not have been made under Order XLI Rule 23 or 23A of the
Code of Civil Procedure.
22. Further the First appellate Court only referred to the aforesaid two
provisions, i.e., Order XLI Rule 23 and Order XLI Rule 23A of the Code of Civil
Procedure, but did not consider Order XLI Rule 24 and Rule 25 of the Code of
Civil Procedure.
23. Since the First Appellate Court felt that some issues need to be
framed and in fact framed two issues, the Appellate Court should have
exercised jurisdiction under Order XLI Rule 25 or under Order XLI Rule 24 of
the Code of Civil Procedure. There was no scope of remanding the suit for
fresh trial in terms of Order XLI Rule 23 and 23A of the Code of Civil
Procedure.
24. As held in this case, Order XLI Rule 23 and 23A of the Code of
Civil Procedure are not applicable, then the next question which falls for
consideration is what would be correct provision of law, which should have
been invoked in this appeal.
25. As discussed in detail, Order XLI Rule 25 provides for a remand
where the Trial Court, after recording evidence and arriving at a finding on the
newly framed issues, sends the file to the Appellate Court for deciding the
appeal. This provision is exercised when there is no sufficient evidence on
record to decide the additional issues or the recasted issues. In a case where
there is sufficient evidence, this provision should not be invoked by the First
Appellate Court. The provision, which should be invoked by the First Appellate
Court is of Order XLI Rule 24 of the Code of Civil Procedure. In this case, as
held above, I find that to answer the newly framed issues, two documents are
necessary. Reference of those documents are there in the Trial Court
judgment itself. Exhibit 2 is the Hukumnama dated 25.01.1950. Exhibit 8 are
the sale deeds. In presence of these documents, this Court feels that there
was no necessity for the Appellate Court to remand the case even if two new
issues were framed. Those two issues, predominantly are questions of law,
which could have been easily decided by the Appellate Court. The Appellate
Court, thus, had abdicated the power and jurisdiction vested upon him by the
Code of Civil Procedure. This is a fit case where the Appellate Court could
have exercised jurisdiction in terms of Order XLI Rule 24 of the Code of Civil
Procedure.
26. Thus, on law and the facts of this case and what has been held
above, the judgment dated 13th June, 2018 and decree signed on 26th June,
2018 passed by the Principal District Judge, Hazaribag in Title Appeal No.7 of
2018 is set aside. The First Appellate Court is directed to decide the appeal on
all the issues including the two issues so framed by him. The First Appellate
Court is directed to decide the appeal preferably within a period of five months
from the date of receipt of a copy of this order.
This appeal stands allowed.
(Ananda Sen, J.)
Kumar/Cp-02
