Pradeep Kumar Tamkoria. v. Krishna Kumar Tamkoria.

C.A.V ORDER

The plaintiffs-appellants have preferred this appeal against the judgment and order dated 21.01.2013 passed by the learned 3rd Additional District Judge, Begusarai in Title Appeal No. 45/2008 by which he has set aside the judgment and decree dated 30.04.2008 passed by the learned 1st Subordinate Judge, Begusarai in Title Suit No. 51 of 1982 and has remitted back Title Suit to the 1 Subordinate Judge to settle relevant issues on recast and to decide objection petition against Survey Knowing Pleader Commissioner and to pass a fresh judgment and decree in accordance with law.

The suit was instituted by the plaintiffs for declaration of title and recovery of possession and for setting aside the sale deed and also for mesne profit. The defendants entered appearance and contested the case leading to the aforesaid judgment whereby the trial court decreed the suit and the defendant 1 party was directed to hand over the vacant possession of the suit house and the land to the plaintiffs within two months from the date of the order. The defendants preferred the aforesaid Title Appeal No. 45/2008 against the judgment and decree of the learned Sub-Judge. The title appeal has been allowed. The judgment and decree of the learned Sub-Judge passed in Title Suit has been set aside and the suit has been remanded for a fresh judgment in accordance with the directions.

The learned counsel for the appellants has submitted that the impugned order is bad in law. It is impermissible to remand the matter on the grounds mentioned by the appellate court. He submits that the matter has been remitted back on the ground that the learned trial court ought to have settled the following issues also for determination besides the other issue:

(i) Whether there is existence of Schedule A and B land?

(ii) Whether prior to 3.05.1987 the plaintiffs were in possession over the Schedule F land?

(iii) Whether defendant no. 1 dispossessed the plaintiffs from Schedule F land on 3.05.1987?

It has also been held that the suit was filed for declaration of title and recovery of possession; therefore, there was no need to pass order in the impugned judgment to prepare preliminary decree and without settling the issues on the point of dispossession. Finding of the learned trial court is also wrong on the ground that without deciding the objection to the Survey Knowing Pleader Commissioner report.

The learned counsel for the appellants has further submitted that the learned appellate court below should have decided the case on its own merit and the remand of the case is not justified and in accordance with law. In support of his contention, he has referred the following decisions:

(i)AIR 1963 Supreme Court 884 (Nedunuri Kameswaramma v. Sampati Subba Rao )

(ii)1995 (2) PLJR 563 (Bhaskar Ganguly @ Vaskar Ganguly v. Sujit Kumar Gupta).

(iii)AIR 1975 Supreme Court 1409 (Pasupuleti Venkateswarlu v. Motor & General Traders).

He has also submitted that there is no finding by the appellate court that there is lack of evidence and when there is sufficient evidence of both the parties on the record, the learned appellate court should have decided the appeal under Order 41 Rule 24 of C.P.C In support of his contention, he has relied upon the following decisions:

(i)AIR 1999 Supreme Court 1125 (Ashwinkumar K. Patel v. Upendra J. Patel.)

(ii)2014 (1) PLJR 358 (Laxmi Mahto v. Leela Devi @ Bindeshwari Devi)

(iii)2003 (4) PLJR 810 (Awadhesh Kumar Mishra v. Sona Devi)

The learned counsel for the respondent nos. 1 to 5 and 8 has submitted that the plaintiffs who are directly affected have not preferred the appeal.

To controvert the aforesaid contention, the learned counsel for the appellants has submitted that Sri Narayan Pd. Tamkoria was plaintiff 1 party and he died during the pendency of the title suit and his heirs were substituted and they have filed the present appeal, as such, it cannot be said that the plaintiffs who are directly affected by the suit property have not preferred appeal.

The learned counsel for the respondents further submitted that the remand order is correct and the suit should have been decided in accordance with law. The remand order is not a formality. The learned appellate court has pointed out the issues which ought to have been settled by the learned trial court. The issues have been mentioned in paragraph 20 of the judgment. He has supported the impugned judgment and in support of his contention, he has relied upon the following decisions:

(i)AIR 2003 Supreme Court 3167 (REMCO Inds. Workers House Bldg. Coop. Socy v. Lakshmeesha M.)

(ii)AIR 1992 Supreme Court 1338 (Pundlik Krishna Ji v. Trimbak Bhikaji Patil)

He has tried to distinguish the decisions cited on behalf of the appellants.

I have perused the materials on the record and considered the submissions of learned counsel for the parties.

It appears that there is no finding by the learned appellate court that the evidence adduced on behalf of both the parties is insufficient to decide the matter nor any parties have ever filed any petition showing their eagerness to adduce any oral or documentary evidence. Both the parties have adduced their oral as well as documentary evidence.

So far as the ground of remand is concerned, the learned court of appeal below in paragraph 22 of the impugned judgment has found that there is no need to pass order by the trial court to prepare preliminary decree. It has been held by the learned court below that the finding of trial court on the point of dispossession without framing of issue and without deciding the objection to the report of the Pleader Commissioner is wrong. It appears that the direction to prepare the preliminary decree is obviously an error by the trial court. So far the objection to the Survey Knowing Pleader Commissioner's report is concerned that is no ground to remand to the trial court.

In the case of Ram Vinod Roy v. Mostt. Ram Sumari Devi reported in 2004 (2) PLJR 755, several judgments have been considered. In my opinion, this judgment is also helpful for deciding the matter. It is better to quote paragraph 7 of the judgment:

“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 AIR 1988 SC 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 AIR 1963 SC 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 read the right conclusion. It has been observed in its judgment reported in (1999) 3 SCC 161 (Ashwinkumar 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 Madres High Court in its judgment reported in AIR 1965 Madras 417 (Balasubramania lyer 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”.

The issue relating to remand is governed by the provisions of Order 41 Rules 23 to 27 of the Code of Civil Procedure. It is settled principle of law that where the 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.

The decision cited by the respondents in the case of REMCO Inds. Workers House Bldg. Coop. Socy v. Lakshmeesha M. reported in AIR 2003 Supreme Court 3167 (Supra) is not helpful to the defendants-respondents in the facts and circumstances of this case as in that case the basic issue of the effect of earlier grant of occupancy rights dated 28.05.1965 (Ex.D-3) in favour of the tenant-Muniyappa on the subsequent granted dated 9.12.1969 (Ex.P-1) in favour of plaintiff/respondent was neither addressed to by any of the courts below nor a decision has been rendered on the same, as such, the case was remanded.

In the case of Pundlik Krishna Ji v. Trimbak Bhikaji Patil reported in AIR 1992 Supreme Court 1338 (Supra) there was question of termination of the tenancy/the genuineness of the lease deed dated 30.04.1951 The case of the respondent land owner was wholly based on the said document. The High Court had no material before it to come to the conclusion that the lease deed was a genuine document. As such the judgment of the High Court and also of the courts below were set aside and case was remanded to the concerned trial court for deciding the ejectment application after giving full opportunities to the parties to produce evidence on the issue of genuineness or otherwise of the lease deed. In my humble view, this decision is not applicable in the facts and circumstances of the present case.

It appears that the view in the case of Ram Vinod Roy v. Mostt. Ram Sumari Devi reported in 2004 (2) PLJR 755 (Supra) is applicable in the facts and circumstances of this case.

It appears that the Pleader Commissioner's report and the objection of the parties thereto constitute only one piece of evidence. Consideration of the said piece of evidence alongwith 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 the record and come to its independent conclusions, completely unmindful of the judgment of the trial court. In this view of the matter, I am of the view that the impugned judgment is bad in law and is fit to be set aside.

In the result, the impugned judgment dated 21.01.2013, passed by the learned court of appeal below, is set aside. The learned court of appeal below should dispose of the appeal on its own merits. The appeal is allowed.

There would be no order as to costs.