Jharkhand High Court
Smt. Sumitra Devi vs Deleted/ Died (Jalwanti Devi) on 11 February, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 313 of 2013
Smt. Sumitra Devi, W/o Arun Kumar Sinha, R/o Gola Road, Sinha Market, P.O. &
P.S. Ramgarh, District-Ramgarh
.... .... Appellant
Versus
1. Deleted/ Died (Jalwanti Devi)
2. Raj Kumar Mistry
3. Madan Mistry
Sl. Nos. 2 &3, both sons of Late Ramchandra Saw Sonar and residents of
village Saudagar, Mohalla Ramgarh, P.O. & P.S. Ramgarh, District-Ramgarh.
4. Deleted/ Died (Mandodri Devi)
5. Nagendra Prasad, son of Late Ramavtar Sahu
6. Krishna Prasad, son of Late Ramavtar Sahu
7. Jawahar Prasad, son of Late Ramavtar Sahu
8. Sandip Kumar, son of Late Ramavtar Sahu
All residents of Ghutwa, P.O. & P.S. Barkakana, District Ramgarh
9. Arjun Sao, Son of Ganga Sao, R/o Saudagar Mohalla, P.O. & P.S. Ramgarh
Cant., District Ramgarh
... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellant : Mr. Niraj Kishore, Advocate,
Mr. Birendra Kumar, Advocate
For the Resp No. 2 : Mr. Ajay Kr Singh, Advocate
Mr. Satyendra Kumar Singh, Advocate
Ms. Punam Shrivastava, Advocate
Mr. S G Raman, Advocate
Mr. Vijay Kumar, Advocate
------
Order No. 13 / Dated : 11.02.2025.
Heard, learned counsel for the parties.
1. The instant Misc. Appeal has been filed against the order of remand dated
22.08.2013 (decree signed on 27.08.2013) passed by learned District
Judge-VI, Hazaribag, in Title Appeal No.22 of 2007.
2. Plaintiff's had filed suit for declaration of right, title and interest over
Schedule-A, B and C property, with a further prayer to declare the sale-deed
executed by Janki Sonar to Ramavtar Sao dated 28.08.1958 with respect to
Schedule-B property and another sale-deed executed by Mandodri Devi to
defendant no. 1 [Sumitra Devi] and others on 09.08.1989 in Schedule-B
as illegal, void and inoperative, was dismissed by the learned Trial Court.
3. Plaintiff preferred First Appeal being Title Appeal No. 22/2007 in which the
first Appellate Court set aside the judgment and decree passed in the Title
Suit No. 05/1990 and remanded the case to the learned Lower Court with a
direction to re-admit the suit, frame issue(s) and to decide all the issues
afresh after impleading the State of Jharkhand through Deputy
Commissioner, Ramgarh as a party.
4. Instant appeal has been preferred by the defendant no.1 against the order
of remand passed by the First Appellate Court.
5. It is not in dispute that schedule land was originally recorded in the name of
Shyamlal Baniya and Modilal Baniya in the record of rights. The recorded
tenant(s) died as bachelor and the property devolved on Mihilal Baniya.
Mihilal Baniya sold the said land in the year, 1931 as detailed in Schedule-
B to Jailal Sonar and thereafter constructed a house and started living with
his family in the said plot of land. After death of Jailal Sonar, plaintiff(s)
inherited the property and came in possession of it.
6. In the year 1957, Janki Sonar was given temporary accommodation in two
rooms of the house who executed a registered sale-deed on 18.02.1958 in
favour of Ramawtar Sao with respect to land under khata no. 267, plot nos.
2915 and 2916 as detailed in Schedule-C, without having any right, title and
interest or possession over the said property. Further, sale-deeds were
executed by Mandodri Devi wife of Ramavtar Sao along with her sons
(Defendants 3,4,5 &6) in favour of Sumitra Devi (Defendant no.1) which is
in challenge in the suit.
7. Defendant nos. 2 to 7 did not appear and ex-parte proceeding was drawn
and the only contesting defendant was defendant no. 1 [Sumitra Devi
(appellant)]. It is case of the defendant(s) that plot of lands under plot no.
2915 area 0.15 acre and plot no. 2916 area 0.02 acre were reverted back to
the then landlord Amulya Ratna Goswami, who settled the said land in
favour of Janki Sao @ Janki Sonar in the year 1931. Mihilal Baniya had no
concern with the said land under plot no. 2915 and plot no. 2916. It was
Janki Sonar and not Jailal Sonar who was in possession of these plots till
28.08.1958 and sold part of the land together with the house bearing
enrolment no. holding no. R/470 to Ramavtar Sao-husband of defendant no.
2 and father of defendant nos. 3 to 6. Since the date of purchase, they are
in continuous possession of the land and paying the rent to the State.
8. It is not in dispute that Shyam Lal Bania was the original recorded tenant. In
sum and substance, Plaintiff's claim chain title over the suit land through
sale by the recorded tenant, whereas the Defendants claim through Janki
Sonar that land was reverted back by the recorded tenant to the ex-landlord
who settled it in favour of Janaki Sao.
9. On the basis of the pleadings of the parties, the following main issues were
framed:-
(iv) Whether Mihilal Baniya was brother of recorded tenants Shyam Lal
Bania and Modilal Baniaya?
(v) Whether Jailal Sonar had acquired right, title, interest and possession
over the suit land mentioned in Schedule-B on the basis of alleged
unregistered sale-deed executed by Mihilal Baniya in the year 1931?
(vi) Whether the settlement made by Amulya Ratna Goswami in favour of
Janki Sao @ Janki Sonar with respect to plot No. 2915, area 15 decimals
and plot no. 2916 area 2 decimals was valid, genuine and operative and
whether settle came in possession till 28.08.1958 over the settled land
as claimed by the defendants?
10. Learned Trail Court dismissed the suit by answering issue nos. (iv)
and (v) in the negative. It was held that the plaintiff(s) failed to prove that
Mihilal Baniya was brother of the recorded tenant and that he came into
possession after the death of recorded tenant Shyamlal Baniya as his name
was not entered in the record of rights. Whereas Jailal Sonar came into
possession over the suit land on the basis of Ext. 2, 1 to 1/E. Claim of title
on the basis of Hukumnama (Ext. K) followed by act of possession, was
accepted. It was also not that by Title Suit No. 1/1978 with respect to 4
decimals of land which was part of the suit land was decreed (Ext.P). The
Court further held that the settlement made in favour of Janki Sonar was
valid and after the said settlement there was evidence of act of possession
of Janki Sonar.
11. Learned First Appellate Court set aside the judgment and decree for
the reason that the Trial Court was silent about the question as to whether
Janki Sao @ Janki Sonar had right, title and interest over khata no. 267
under Khewat no. 3/1 having plot no. 2915 area 15 decimals and plot no.
2916 area 01 decimal one house total 16 decimals of land in mouza
Ramgarh. Claim of title on the basis of hukumnama was also not accepted.
12. It is submitted by the learned counsel on behalf of the appellant that the
order of remand is not sustainable for the reason that entire evidence was
on record and the First Appellate Court being last court of fact could have
decided the issue. All the issues were decided by considering the evidence
on record by the learned Trial Court. As the land was originally a raiyati land,
therefore, State was not a necessary party. Therefore, order for impleading
State as a party was uncalled for.
13. Learned counsel on behalf of the contesting private respondent no. 2
submits that there is no illegality in the order by which the judgment and
decree passed by the Trial Court has been set aside. However, remand
being made on the ground that State being made a party was not required.
14. I find force in the argument advanced on behalf of both sides that
State was not a necessary party in the suit as the land was not a
Gairmajurwa malik which originally recorded in the name of the ex-landlord,
but a raiyati land recorded in the name of Bania, therefore, there was no
question of interest of the State to be involved in it. Further, either parties
are continuing in possession over it, without any let or hindrance even after
coming into force of the Bihar Land Reforms Act 1950. There is evidence of
galore of act of possession, by sale, transfer of property followed by mutation
in municipal record. State never raised any claim over the suit property at
any point of time. In this view of matter, the order, directing to implead State
as a party is clearly unsustainable.
15. Law is settled that appellate court could remand the case before it
where the court from whose decree an appeal was preferred, had disposed
of the suit upon a preliminary point and that decree was reversed in appeal.
A conjoint reading of Rules 23, 23A and 24 of Order XLI of the CPC 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 XLI CPC
and to determine the suit finally.
16. It is only in such cases where the decree in challenge is reversed in
appeal and a re-trial 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 to be proper in a given case because the First Appellate Court
itself is possessed of jurisdiction to enter into facts and appreciate the
evidence. Under Rule 24 Order XLI CPC 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. (See Shiv
Kumar @ Ors. Vs Sharanbasappa 2020 SCC OnLine SC 385).
17. In the present case it was incumbent on the part to decide the case
on the basis of materials on record and there was no sufficient reason to
remand the case for retrial on all issues. Accordingly, the impugned order is
set aside.
Miscellaneous Appeal is allowed.
(Gautam Kumar Choudhary, J.)
Pawan/ -
