Sunder Ahir And Others v. Mt. Phuljharia And Another

Raj Kishore Prasad, J.:— This second appeal is by the plaintiffs against the judgment of reversal of the First Additional Subordinate Judge, Sasaram, dismissing the plaintiffs' suit, on the ground of want of title and limitation.

2. Mr. Lakhshman Saran Sinha, who appeared for the appellants, put forward three objections to the decree appealed from (1) that the Court of appeal below, before remand, having accepted the plaintiffs' genealogy, it was not open to the same court, after remand, to go behind its previous finding, and hold that the plaintiffs' genealogy has not been proved (2) that the Court of appeal below acted illegally in making out a third case, which was not the case of any party, that there were two persons of the name of Parbhu, and, therefore, Parbhu, of village Aorahin and Parbhu of village Baluahi were two different persons in that, this has vitiated its finding on the question of title of the plaintiffs and (3) that the finding of limitation is also vitiated, because if the plaintiffs genealogy is accepted as correct as was done by the first appellate court before remand, then the plaintiffs were co-sharers with the defendants, and therefore, there was no question of plaintiffs' want of possession.

3. In order to appreciate the points raised, on this appeal by the appellants, it is necessary to state a few facts, which have bearing on the questions at issue. According to the plaintiffs, in village Aorahin, where they also resided, there was one Harbans Ahir, who had three sons, Aklu Ahir, Ramai Ahir and Parbhu Ahir. The plaintiffs are the grandsons of Akin Ahir. Prabhu Ahir had also three sons: Nathun Ahir, Nanhaku Ahir, and Ramgahan Aliir. Ramai Ahir, Nathun Ahir, Nau-haku Ahir and Ramgahan Ahir, all died issueless one after another. The last male holder of the disputed property was Nanhauku Ahir. The plaintiffs claim the disputed land as being the next reversioners of Nanhauku Ahir.

4. Parbhu Ahir was married to Mosstt. Kauleshwari, daughter of Deoki Ahir of Village Baluahi, and, after his marriage, Parbhu Ahir went to reside with his father in-law at Baluahi. Deoki Ahir had one son Sarjoo Ahir, who died leaving behind his widow, Mst. Tapasia. In the record of rights, the disputed land was recorded in the name of Mst. Tapasia, daughter-in-law of Deoki having, 4/- share, Khobhari Ahir, husband of defendant No. 1 and father of defendant No. 2 who was the sister's son of Deoki Ahir, who had also settled down in village Baluahi, as having -/4/- share, and, Parbhu Ahir having the remaining -/8/- share.

5. The defendant disputed the genealogy set up by the plaintiffs, and contended that the plaintiffs had nothing to do with the family of Parbhu Ahir, who belonged to village Baluahi, where the defendants resided; and that Parbhu Ahir was not the son of Harbans Ahir, but one Bhagwan Ahir of Village Baluahi. They, however, admitted that Nathun Ahir, Nanhak Ahir and Ramgahan Ahir were the sons of Parbhu Ahir.

6. On the pleadings of the parties, therefore one of the questions was whether Parbhu Ahir belonged to Aorahin to the family of the plaintiffs, or to village Baluahi to the family of Bhagwan Ahir, having nothing to do with the plaintiffs family at all.

7. The learned Munsif, Mr. Ali Athar, who tried the suit in the first instance, decreed the plaintiffs suit, holding that Parbhu Ahir belonged to the plaintiffs' family and that the plaintiffs genealogy was correct. On appeal by the defendants Mr. S. Wasiuddin, Second Additional Subordinate Judge, Arrah, who heard the appeal on the first occasion, before remand, held that the plaintiffs' genealogy was correct, and, that Nanhaku last died, about six or seven years ago. He however, remanded the suit to the first Court for deciding it according to law with certain directions. He accordingly set aside the Judgment and decree of the first court, and remanded the suit with the following directions:

“This document and the Khatian entries coupled with the oral evidence adduced on behalf of the plaintiffs in my opinion support the genealogy as given by the plaintiffs, I, therefore, in view of these facts hold that the learned lower court was correct in holding in favour of the plaintiffs. On the question of genealogy and also on the point that Nanhauku died last 6 or 7 years ago.

This point is thus decided. In view of my findings on point No. 1 it would be clear that the plaintiffs would not be entitled to any relief unless they pay ad valorem court-fees and in the circumstances of the case after considering all the aspects of the matter I think that it will be proper and also equitable that the suit be remanded to the trial Court who will give an opportunity to the plaintiffs to amend the plaint and pay ad valorem court-fee and the defendants be given an opportunity of filing additional written statement, if any.

The Court will then decide the suit according to law. It may be mentioned here that the learned court did not consider this aspect of the matter whether the plaintiffs' suit was maintainable as framed if they be found out of possession.”

8. On remand, after compliance with the order of remand, Mr. P. Rahman, the learned Munsif, who was a different presiding officer, this time, and, who heard the suit after the remand, again decreed the plaintiffs' suit holding that the plaintiffs had subsisting title to the lands in dispute, and, that the plaintiffs' genealogy was correct. An appeal against this judgment after remand of the first court was taken by the defendants to the first court of appeal, which was heard this time by a different presiding officer, namely, Mr. A.M Rahman, First Additional Subordinate Judge, Sasaram.

9. He reversed the decision of the learned Munsif, and held that the genealogy given by the plaintiff was incorrect, and therefore, they had fain led to prove that they were, in any way related to Parbhu Ahir of village Baluahi, and, as they had failed to prove their possession within twelve years of the suit, their suit was barred by limitation. On these findings, he allowed the appeal of the defendants, set aside the judgment and decree of the first court, and dismissed the plaintiffs' suit.

10. The plaintiffs, therefore, have come up in second appeal against the said judgment.

11. Tile principal question for consideration is: Can a court of appeal, which is a court of co-ordinate Jurisdiction, on appeal against the decision of the first court after remand, go behind its earlier finding on the first occasion before remand, and come to a contrary finding?

12. In support of his contention that the court of appeal after remand cannot go behind its earlier finding on the first occasion before remand, notwithstanding that the presiding officers of the court on the two occasions are different. Mr. Sinha has placed strong reliance on Baraboni Coal Concern Ltd. v. Ram Chandra, AIR 1939 Pat 580 (A); Sheolal Balmukund v. Jugal Kishore, AIR 1940 Nag 349 (B); and Latchumammal v. Gengammal, ILR 34 Mad 72 (C).

13. Mr. D.N Varma, appearing for the respondents, however, resisted the contention of Mr. Sinha, and argued that because the judgment and decree of the first court were set aside, and, the whole suit was remanded for retrial, the finding on the Question of plaintiffs' title and genealogy must be considered to be not a final decision, but a mere observation, in that, the judgment of the first court having been set aside, there was no finding of the first court, which could be affirmed by the appellate court, while remanding the suit to the first court.

14. In the Patna case of Baraboni Coal Concern Ltd. (A) (Supra), it was held by a Division Bench of this Court that if a Bench remands a case to the lower Court either under O. 41, R. 23, or under O. 41, R. 25, or under the inherent powers of the Court, the matters finally disposed of by the order of remand cannot be re-opened when the case comes back from the lower court; but, if at the time of remand, no final decision is given on a point though some observations only are made in respect of it, it is open to another Bench when finally determining the case to come to its own conclusion on it.

15. In this case, the liability of the appellant, Baraboni Coal Concern Ltd. personally to satisfy the decree of Ramchandra Marwari, respondent, if the appellant failed to account for the assets of the Economic Coal Co. Ltd., which came into the hands of the appellant, was finally determined by the former Bench. But, as the lower court had not determined if the appellant had accounted for the assets of the Economic Coal Co. Ltd., which came into the hands of the appellant, the case was remanded only for investigating and deciding the point as to whether the appellant had failed duly to account for the assets of the Economic Coal Co. Ltd., which came into its hands.

16. In such circumstances, it was held that the question of liability of the appellant having been finally determined by the former Bench, this question could not be reopened before the subsequent Bench hearing the appeal at the final stage.

17. The earlier decision of this Court in Brij Raj Krishna v. Chathu Singh, 4 Pat LT 35 : AIR 1923 Pat 226 (D), in which it was held that when one Bench set aside the decision of the lower appellate court, and, remanded the case after laying down the law to be followed, the decision of the Bench on the point of law was final, and another Bench, a Court of co-ordinate jurisdiction, could not go behind it in appeal against the decision passed after remand, was relied upon in the above case.

18. To the same effect is also the view of the Nagpur High Court in AIR 1940 Nag 349 (B).

19. The case approaching the instant case, however, is of the Madras High Court in ILR 34 Mad 72 (C), in which it was held that where a Judge on appeal decides certain points and remands the case, his decision is binding on his successor before whom the case comes up again on appeal from the judgment on remand. In this case, the District Judge, before remand, came to a particular finding and remanded the case with directions to the Munsif to try a particular question.

20. After remand, the appeal before the District Court was heard by another personnel, and, he came to a finding contrary to the finding arrived at on the first occasion by his predecessor. A Division Bench of the Madras High Court held that the decision of the District Judge on the first occasion was binding on his successor on appeal after remand.

21. The above decisions, therefore, which have been relied upon by Mr. Sinha, fully support the view that if a particular point is decided finally by a remand order, and, the suit is remanded for a particular purpose, then it is not open to the appellate court on appeal against the decision of the first court after remand to come to a finding different from the finding arrived at on the first occasion by its predecessor.

22. I have given my most anxious consideration to the facts of the present case, because at first I was very much impressed by the argument of Mr. Varma that when the judgment of the first court had been set aside completely, there was no finding of the first court which could be affirmed on appeal by the first appellate court, and, as such, whatever was observed by the appellate court while remanding the suit, must be taken not to be its final decision on that point, but merely in the nature of an obiter.

23. After, however, thinking over the matter carefully, and going into the matter deeper, I have come to the conclusion that the contention of Mr. Varma has no substance, and, therefore, it must be overruled, and, that of Mr. Sinha must be accepted.

24. The real ratio governing such class of cases is to be found in the decision of the Privy Council in Rahimbhoy Hibibhoy v. Turner, 18 Ind App 6 (E) which is the leading case on the point. Lord Hobhouse, in this case, in delivering the opinion of the Board, observed;

“It is true that the decree that was made does not declare in terms the liability of the defendant, but it directs accounts to be taken which he was contending ought not to be taken at all and it must be held that the decree contains within itself an assertion that, if a balance is found against the defendant on those accounts, this defendant is bound to pay it. Therefore, the form of the decree is exactly as if it affirmed the liability of the defendant to pay something on each one of these claims, if only the arithmetical result of the account should be worked out against him. Now that question of liability was the sole question in dispute at the hearing of the cause, and it is the cardinal point of the suit. The arithmetical result is only a consequence of the liability.

The real question in issue was the liability, and that has been determined by this decree against the defendant in such a way that in this suit it is final. The Court can never go back again upon this decree so as to say that, though the result of the account may be against the defendant still the defendant is not liable to pay anything. That is finally determined against him, and, therefore, in their Lordships' view the decree? is a final one within the meaning of S. 595 of the Code.”

25. This case was affirmed by the Judicial Committee subsequently in Muzhar Husein v. Bodha Bibi, 22 Ind App 1 (PC) (P).

26. A Division Bench of our High Court in Munshi Lal v. Ramasis Puri, 3 Pat LT 343; (AIR 1922 Pat 384) (G), held that an order of remand cannot be allowed to be challenged in a subsequent appeal against the decree made on remand if no appeal has been preferred against the order of remand, which is appealable. In this case, the Full Bench decision of this Court in Bara Estate Ltd. v. Anup Chandra, 2 Pat LJ 663 : (AIR 1918 Pat 680) (H), was distinguished.

27. Recently, another Division Bench of this Court, in Kanhiya Singh v. Bhagwat Singh, 1954 BLJR 170 : (AIR 1954 Pat 326) (I), relying on Brij Raj Krishna (D) (supra), held that findings necessary for explaining and justifying an order of remand will be taken to be concluded and final, and it will not be open to the court to which the case is remanded, to enter into any decision, or to come to any finding with regard to them.

28. Cases where an order of remand made by a Single Judge of this Court was disregarded by another Single Judge, or by a Bench hearing the appeal, at the final stage, against the decree made on remand, came up for consideration in two Full Bench decisions of this Court: 2 Pat LJ 663 : (AIR 1918 Pat 680) (H), and Haricharan Ram v. Bisesar Dayal, S.A No. 399 of 1939, on remand, decided by Varma, Shearer and B.P Sinha JJ., D/- 9-5-1944 (Pat) (J), which is not reported anywhere.

29. On a consideration of the above decisions, therefore, in my judgment, the guiding principles, which can be extracted therefrom, are:

(1) That if a Bench of the High Court remands a case to the lower Court under its inherent powers, the matters finally disposed of by the order of remand cannot, any of them, be reopened, when the case comes back from the lower court but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, it is open to another Bench, a court of co-ordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and, (2) that even in a case, decided by the first court of appeal other than a case, decided by the High Court, if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again on appeal from the judgment after remand, because such a court is a court of co-ordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his predecessor before remand.

30. The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out if, by the order of remand, the Judge on appeal, has remanded the suit for determination of all the points at issue, or, it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiffs' suit itself, in which case the decree of the first court has to be set aside, and, the suit remitted to the court below for a fresh decision of the case according to law.

31. Applying the above principles to the present case, I would answer the question posed by me in the negative, and hold that the court of appeal below on remand, was not entitled to go behind the decision of its predecessor on the first occasion before remand, for the reasons stated hereafter.

32. In view of the above principles, in order to determine the precise effect and scope of the remand order in question, it is necessary, at first, to construe the order of remand itself. It will appear that by the remand order, Mr. Wasiuddin who heard the appeal in the first instance, finally decided three questions, namely, the question of genealogy, the question as to when Nanhku died, and the further question as to whether Nanhku died last. On all these points, he held in favour of the plaintiffs. He held that the plaintiffs' genealogy was correct, Nanhku died last, and that he died about six or seven years ago.

33. On these findings, therefore, it was established that the plaintiffs had subsisting title to the property in suit, and, that their suit was not barred by limitation, because it had been brought within twelve years of the death of the last male holder. But this decision was not sufficient, in the opinion of Mr. Wasiuddin, to give a decree to the plaintiffs, because they had only prayed for partition of their -/12/- share, and had not sought recovery of possession. Mr. Wasiuddin, on this question, under point No. 1, came to the conclusion that the suit of the plaintiffs was not maintainable, unless the plaintiffs sought for recovery of possession and declaration of their title. In this view, he considered that it will be a great hardship, if the suit was dismissed, and, therefore, he thought that the proper procedure, which should be adopted in such a case, is that the plaintiffs may be given an opportunity of amending the plaint, and paying an ad valorem court-fee, and, on this view, he remanded the suit for giving an opportunity to the plaintiffs to amend the plaint, and Pay an ad valorem court-fee, and to give an opportunity to the defendants, if they so liked, for filing an additional written statement, if any.

34. Mr. Wasiuddin further observed that the question whether the plaintiffs' suit was maintainable as framed, if they be found out of possession, had not been considered by the first court. Whether this view of Mr. Wasiuddin in the order of remand was right or wrong need not be considered by us. On reading the order of remand, therefore, it is clear that what Mr. Wasiuddin did was to decide the question of the plaintiffs' title, and to refer the suit back for deciding only the maintainability of the suit.

35. For deciding this point of maintainability of the plaintiffs' suit, naturally it was necessary to set aside the judgment and decree passed in favour of the plaintiffs by the first court, because even on the finding of the plaintiffs' title by Mr. Wasiuddin, in his view, the plaintiffs' suit could not be decreed without amendment of the plaint, and payment of ad valorem court-fee.

36. In such circumstances, in my opinion, the, proper construction of the remand order is that the question of plaintiffs' title was finally determined by the remand order, and, the suit was remanded only on the question of maintainability of the plaintiffs' suit. In this view of the matter, in my judgment, the decision of Mr. Wasiuddin before remand on the question of genealogy and death of Nanhku must be deemed to have been finally decided by the remand order, and, as such, it was not open to Mr. M.A Rahman, the learned Subordinate Judge, who was a court of co-ordinate jurisdiction, on an appeal on the second occasion against the decree of remand, to go behind that finding and to come to a contrary finding.

37. In this view of the legal position, the finding of the court of appeal below that the genealogy given by the plaintiffs-respondents is incorrect, and, that they have failed to prove that they were, in any way related to Parbhu Ahir of Baluahi and as such, they have failed to establish their title to the property in suit must be set aside, and, the finding of Mr. Wasiuddin before remand that the plaintiffs' genealogy was correct must be restored.

38. In the view, I have taken, on the first question, the second contention of Mr. Lakshman Saran Sinha need not be considered at all. If it had been necessary to consider it, I would have negatived it, because, in my opinion, the court of appeal below has not at all made out a third case for the parties. He has considered the case of the defendants-respondents and accepted their case, and, in doing so, he only made an observation about the existence of two Parbhus, one in village Aorahin and another in village Baluahi. This observation will not mean that he made out a third case for the parties. In this respect, therefore, he has not at all misdirected himself in law.

39. As to the question of limitation, in my opinion, this also must be answered in favour of the appellants, because when it has been found that the plaintiffs have title to the properties in dispute, and, further, that Nanhku, the last male holder of the property, died last, and, died only about six or seven years ago, the question of limitation did not arise at all; and, further, the plaintiffs on their genealogy were co-sharers with the defendants, who were recorded in respect of the disputed land, and, as such, as co-sharers the possession of the defendants would amount to possession of the plaintiffs also, unless their ouster was established, which had not been done in the present case.

40. This principle is well established also by a Division Bench decision of this Court in Dipnarain v. Pundeo*, ILR 25 Pat 412 : (AIR 1947 Pat 99) (K), that as between co-owners there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the other, and, that there is no difference in principle in considering the question of adverse possession as between two co-owners, and between a co-owner and a transferee from another co-owner, nor can a co-owner's heir stand on a better footing than an assignee.

41. In, my opinion, therefore, the plaintiffs' title was not extinguished by the possession of the defendants, and, as such, the plaintiffs were entitled to a decree.

42. For the reasons given above, I would allow the appeal, set aside the judgment and decree of the Court of appeal below, and restore those of the learned Munsif, Mr. P. Rahman, dated 29th March, 1949, and decree the plaintiffs' suit.

43. In the result, the appeal succeeds, and is accordingly, allowed with costs.

44. Ramaswami, C.J:— I agree.

H.G.P

45. Appeal allowed.