S.K Katriar, J.:— The defendant is the appellant against an order of remand. This appeal is directed against the judgment dated 29.9.2000, passed by the learned IVth Additional District and Sessions Judge, Samastipur, in Title Appeal No. 38 of 1989 (Most. Ram Sumari Devi v. Ram Binod Rai), whereby he has set aside the judgment and decree dated 30.6.1989, passed in Title Suit No. 35 of 1979 (Bal Govind Raout v. Ram Binod Rai), impugned before him, and has remitted back the matter to the learned trial court for a fresh judgment in accordance with the observations made therein and in accordance with law.

2. The suit was instituted for removal of encroachment allegedly by the defendant (appellant) to the extent of four dhurs. In other words, it is a suit for declaration of title and recovery of possession of 4 dhurs of land. The defendants entered appearance and contested the matter leading to the aforesaid judgment, whereby the trial court dismissed the suit. The plaintiffs appealed which has been allowed by the impugned judgment, that of the trial court has been set aside, and the suit has been remitted for a fresh judgment, in accordance with the directions. While assailing the validity of the impugned judgment, learned counsel for the defendant (appellant) submits that the impugned order is bad in law. It is impermissible to remand the matter on the grounds mentioned by him. He submits that the matter has been remitted back on the ground that the learned trial court ought to have framed an issue that the registered deed of absolute sale of the year 1978, from Ram Prakash Rai in favour of the defendants (appellants), was valid or not and, secondly, on the ground that the learned trial court, has not considered a vital piece of evidence on the question of encroachment, namely, the Pleader Commissioner's report and the objection filed by the plaintiffs (respondents).

3. Learned counsel for the plaintiffs (respondents) has supported the impugned judgment.

4. I have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the defendants (appellants) is right in his submission that the question of validity or otherwise of the aforesaid sale-deed does not arise in view of the pleadings of the parties and the learned court of appeal below seems to have made out a third case on account of mis-appreciation of the cases of the parties as disclosed in their respective pleadings. The Supreme Court in its judgment reported in (1977) 3 SCC 532 : A.I.R 1977 S.C 890 (Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga) has observed that it is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties, and that it is the case pleaded which has to be found. The Supreme Court held on facts that the High Court in appeal went wrong in making out an entirely new case of benami transaction which was not pleaded and was not the subject-matter of the trial. The Supreme Court has held in its judgment reported in A.I.R 1956 S.C 231 (J.K Iron and Steel Co. Ltd. Kanpur v. The Iron and Steel Mazdoor Union, Kanpur) that the role of pleadings is to ascertain the real dispute between the parties, to narrow the area of conflict, and to see just where the two sides differ. It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusion that they think are just and proper.

5. In this background, learned counsel for the defendant (appellant) is right in his submission that the parties has approached the court with the limited case whether or not the defendants have encroached the lands of the plaintiffs to the extent of four dhurs. Learned counsel for the plaintiffs (respondents) has not been able to point out any material from the pleadings of the parties to show that this issue arises in the suit. He has in fact not controverted this submission. Therefore, the first ground of remand is non-est and bad in law.

6. In so far as the second ground of remand is concerned, the learned court of appeal below (in paragraph 16 of his judgment) has found fault with the discussion in paragraph 30 of the judgment of the learned trial court which in substance means that the learned trial court has erred in summarily rejecting the objections to the Pleader Commissioner's report. Criticising the aforesaid approach of the trial court, the learned court of appeal below has observed (in paragraph 16 of his judgment) that “In my opinion, great injustice has been done to the party concerned who filed the objection report. It was legitimate that learned court below should decide for all purposes whether Commissioner's report was confirmed or set aside. Without coming to a finding to this effect and confirming the said Commissioner's report, learned court below has no jurisdiction to hold that the Commissioner's report has nothing in it and irrelevant and that the objection petition does not stand in the way of the Commissioner's report.”

7. On a thoughtful consideration of the matter, I disagree with the approach of the learned court of appeal below. The question as to on what ground the learned court of appeal below, being a court of facts, ought to remand a matter back to the trial court is well settled by a long line of judgments of high authority. The issue relating to remand is governed by the provisions of Order 41, Rules 23 to 27 of the Code of Civil Procedure. The Supreme Court in its judgment reported in (1988) 4 SCC 163 : A.I.R 1988 S.C 2123 (K. Krishna Reddy v. The Special Dy. Collector, Land Acquisition Unit II. LMD Karimnagar Andhra Pradesh) has observed that the appellate court should not exercise the power of remand lightly unless the award is wholly unintelligible. It has been held in the judgment reported in A.I.R 1963 S.C 884 (Nedunuri Kameswaramma v. Sampati Subba Rao ) that there was no need to remand the matter, as the evidence which had been led in the case was sufficient to reach the right conclusion. It has been observed in its judgment reported in (1999) 3 SCC 161 (Ashwin Kumar K. Patel v. Upendra J. Patel) that the appellate court should not ordinarily remand a case merely because it considers the reasoning of the lower court to be wrong. Remand of a case delay and prejudice the involved parties. Thus when material is available before the appellate court, it should exercise its own judgment and decide the appeal. A learned Single Judge of the Madras High Court in its judgment reported in A.I.R 1965 Madras 417 (Balasubramania Iyer v. Subbiah Thevar) has held that it is only in exceptional cases that the appellate court should remand the matter, for example, in a situation if the trial court has disposed of the suit on a preliminary issue of the judgment is wholly unintelligible or incomprehensible, The Madras High Court proceeded to observe that if the trial court has not disposed of the suit on a preliminary point but has delivered judgment on merits, then it is the duty of the appellate court to deal with the appeal on its merits. The fact that there are some defects and infirmities in the reasoning of the trial court is surely not a ground for the appellate court not to do its duty of disposing of the appeal on merits.

8. Another recognised ground for remand is that the parties were shut out from leading material evidence. An equally recognised ground in appeals arising out of eviction suits is where the trial court has failed to discuss the issue relating to partial eviction. In such cases, the appellate court quite often retains the appeal and remits the matter to the trial court on the limited issue, giving liberty to the parties to lead evidence on the limited question of partial eviction.

9. A Division Bench of the Calcutta High Court in its judgment reported in 33 Calcutta Weekly Notes 1211 (Promotha Nath Mazumdar v. Nagendra Nath Mazumdar) dealt with a similar question. Speaking for the Court, Rankin, C.J observed as follows:—

“This brings me to observe that I entirely fail to understand the procedure of the learned Subordinate Judge in directing a de novo trial by the first Court. Having several difficult questions before him which had been determined by the trial Court in one way, it was the duty of the Subordinate Judge, if he was dissatisfied with the view taken by the first Court, to come to a conclusion on the evidence for himself after arriving at the necessary finding of facts and of law. I must strongly deprecate delivering a lecture on points of law to the trial Court and sending a case back for de novo trial to that Court when there is no reason whatever to think that either party had not an opportunity of producing all the evidence that it desired to produce in the first instance. That appears to me to amount merely to throwing the work of the Court on somebody else. It multiplies proceedings. I need not say that ordinarily, if an Appellate Court disagrees with the lower Court and is not satisfied with that Court's opinion, its duty is to come to a proper conclusion for itself. Prior to the recent amendment of the Civil Procedure Code, this Court in second appeal being unable at times to come to findings of fact was in the unfortunate position of having to order a remand after an endeavour to explain the law applicable to the case. That is not now the law even in this Court. The learned Subordinate Judge in the present case ought to have come to proper findings for himself instead of entailing on the parties unnecessary trouble and expenses of a de novo trial.”

10. The Privy Council observed as follows in its judgment reported in A.I.R 1948 P.C 36 (Md. Akbar Khan v. Motal):—

“Order 41, Rule 23 as amended in Madras in 1930 says: ‘Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed on appeal, or where the appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, the appellate Court may by order remand the case.”

11. Dealing with a comparable issue in an indentical situation, a learned Single Judge of the Madras High Court in his judgment reported in A.I.R 1972 Madras 316 (Annamalai v. Narayanaswami Pillai) held that “… Having regard to the fact that the defendants who should have urged this plea did not get the issue framed and they have not filed any appeal against the decree for partition, it is not right for the Court to take upon itself the task of framing the issue and non-suit the plaintiffs.” Proceeding further, the learned Single Judge observed that the issue relating to remand is governed by the provisions of Order 41, Rules 23 to 27 and proceeded to observe that “… where the learned trial court has considered the evidence adduced before him and come to some conclusion, the appellate Court should not normally remand the case. It should see first whether it cannot dispose of the case itself under Order 41, Rules 24, 25, 26 and 27. Only if it is not possible so to do and it is necessary in the interests of justice to remit the suit, remand should be resorted to…..”

12. The Orissa High Court in its judgment reported in A.I.R 1965 Orissa 108 (Kailash Chandra Mohanto v. Rajkishore Mohanto) held that the trial court ought to have framed an issue of adverse possession and given his finding therein. Even so, it was still open to the lower appellate Court to give his finding on the point when evidence was sufficient to give such finding by virtue of Order 41, Rule 24″, which the learned lower appellate court had done. The High Court in its second appellate jurisdiction approved the said course of action and held that there is no need in such a situation to remand the matter to the trial court.

13. A learned Single Judge of the Himachal Pradesh High Court in its judgment reported in A.I.R 1972 Himachal Pradesh 17 (Parkash Chand Anand v. Dhanwant Singh) observed that the parties were fully conversant of their respective case. They led evidence and a correct decision could be arrived at upon such evidence. As such, there was no necessity for remitting the case, as no fresh trial was needed. Applying the aforesaid principles to the facts and circumstances of the present case, it appears to me that the Pleader Commissioner's report and the objection of the parties thereto constitute only one piece of evidence on the main issue which arises for adjudication in the suit, namely, whether or not the defendant has encroached the lands of the plaintiffs, apart from other evidence that the parties have led in support of their respective cases. Consideration of the said piece of evidence along with objection may have been done in a perfunctory manner by the trial court, or at worse may be a case of non-consideration of the same, but the same cannot be a ground for remand. It is the duty of the lower appellate court, being a court of facts, to re-appraise the entire evidence available on record and come to its independent conclusions, completely unmindful of the judgment of the trial court. In that view of the matter, I am of the view that the impugned judgment is bad in law and is a fit to be set aside.

14. In the result, the impugned judgment dated 20.9.2000, passed by the learned court of appeal below, is set aside. The learned court of appeal below should dispose of the appeal on merits.