Jharkhand High Court

Anil Baran Chatterjee vs The Chief Secretary on 30 January, 2025

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      M. A. No. 650 of 2016
                           -----

Anil Baran Chatterjee, S/o of late Basant Kumar Chatterjee, R/o Village Karhria @ Babugram, P.O. Babugram, P.S. Chandankiary, District-

Bokaro (Jharkhand).                    ...       ....         Appellant
                           Versus

1. The Chief Secretary, State of Jharkhand at Ranchi

2. The Deputy Commissioner, Bokaro, P.O., P.S. and District-Bokaro

3. The District Fishery Officer-cum-Chief Executive Officer, At Camp- II, Bokaro, now office address near Chas Block, P.O. and P.S. Chas, District-Bokaro (Jharkhand) ... .... Respondents

-----

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

-----

For the Appellant         : Mr. S. N. Das, Advocate
                            Mr. N. K. Sahani, Advocate
                            Mr. O.P. Singh, Advocate

For the Respondents State : Mr. Sanjay Kumar Tiwari, S.C.-I Mr. Krishna Kumar Bhatt, A.C. to S.C.-I

-----

Oral Order 26 / Dated : 30.01.2025

1. Appellant is the plaintiff and aggrieved by the order dated 29.08.2016 passed in Civil Appeal No.11/2016 by Principal District Judge, Bokaro.

2. Parties shall be referred to by original placement in the suit for convenience.

3. Plaintiff filed the suit for declaration of right, title and interest over the suit land and for declaration that schedule land (Tank) had been de-listed from the Sairat Panjee (Register).

4. The suit was contested by District Fishery Officer-cum-Chief Executive Officer inter alia on the ground that nature of land was Gairmazurwa Malik land and after coming into force of the Bihar Land Reforms Act, it had vested in the State.

5. The following main issues fell for consideration by the Trial Court:-

Issue No.6 Whether the plaintiff had right, title, interest over the suit property?

Issue No.7 Whether the suit property (Tank) had been delisted from the Sairat Panjee?

6. Learned Trial Court recorded the finding in favour of the plaintiff with regard to both these issues and decreed the suit in favour of the plaintiff.

7. The State preferred an appeal in which judgment and decree were set aside and the matter was remanded back to the trial Court.

8. It is argued by the learned counsel on behalf of appellant that order of remand is the teeth of the ratio laid down by the Hon'ble Supreme Court in (2015) 11 SCC 782 (Lisamma Antony & Ors. Vs. Karthiyayani & Ors), (2023) SCC OnLine 196 (Sirajudheen Vs. Zeenath).

9. It is submitted by the learned counsel on behalf of the appellant that from the impugned order at para 28 of the judgment, it is apparent that the ground for setting aside the judgment passed by the Trial Court and for remanding the matter, as stated by the First Appellant Court, was that the plaintiff-respondent had suppressed several relevant facts from the Court below.

10. It has not been stated in the order that what facts were suppressed, and if at all any facts were suppressed, it could have been cited and then only an adverse inference could have been drawn by the First Appellate Court. As a matter of fact, the order was passed in favour of the appellant-plaintiff in BPLE Case No. 01/1964-1965/429/73-74 (Ext.7), Title Suit No. 110 of 1933 was adduced into evidence (Ext.

5) and also the certified copy of order passed by the Additional Collector in Misc. Case No. 92 of 1990 dated 02.02.1991 (Ext. 6) was adduced into evidence. Learned Trial Court considering these documents decreed the suit.

11. Learned First Appellate Court noted that the Trial Court failed to consider Exts. A and B, if it was so, these documents could have been considered by the First Appellate Court.

12. Law on remand has been settled by catena of decisions by the Hon'ble Supreme Court wherein it has been held that the Appellate Court finds that evidence on record was sufficient under Order XLI Rule 24 of CPC, it has to pronounce judgment. In this case no party had filed any petition for additional evidence and the materials were sufficient on record. Therefore, the Court could not have remanded the case without formulating any issue or point for determination. Reliance is placed on (2023) SCC Online SC 196 (para 29).

13. It is submitted by learned counsel on behalf of the State that the suit land belongs to the State, as it was earlier recorded in the Record of Rights as Gairmazurwa Malik land and after vesting, it got vested in the State. D.Ws. 1 and 2 have specifically deposed that the Fisheries Department used to settle the pond on year-to-year basis. Furthermore, Ext. 1 was the letter issued by the Circle Officer to the District Fishery Officer and Ext. B was the attested copy of the list of Sairat, issued by the Circle Officer, which showed that the suit land came under Sairat Panji and was not a private land. It was for these reasons that the learned First Appellate Court set aside the order and remanded the case to the Trial Court.

14. There cannot be any quarrel with the illegal proposition advanced on behalf of the appellant that when the materials are sufficient for recording a finding, the Appellate Court should desist from remanding the matter to the Trial Court, as it results in avoidable delays in dispensation of justice. It has been held in Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 "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".

15. In the present case, the learned First Appellate Court has not stated what were the documents suppressed by the plaintiff and by only making a sweeping statement of suppression of fact, the order has been set aside and then the matter remanded to the Court below. D.W. 2 himself admits in his cross-examination, as stated in para 44 of the judgment of the First Appellate Court, that an encroachment proceeding was drawn being BPLE Case No. 429 of 1973-74 against the plaintiff which was later on dropped.

16. In adjudication of title where documents were brought on record, a claim of title cannot be brushed aside basing only oral evidence. In any case, the material appears to be sufficient on record for adjudicating the title. It does not appear that the defendant had moved the First Appellate Court for additional evidence. Under the circumstance, the impugned order of remand is unsustainable and, is accordingly set aside. Learned First Appellate Court is directed to decide the matter and dispose of the same as expeditiously as possible preferably within

six months from the date of this order.

Defendant will be at liberty to move the First Appellate Court for adducing any additional evidence which will be considered on its own merit.

This Appeal is, accordingly, allowed.

Pending I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) Satendra/Pawan