JUDGMENT
A.K. Parichha, J.
1. The appellants as plaintiffs filed Title Suit No. 12 of 1998 in the Court of Civil Judge (Sr. Division), Talcher for declaration of their right title over the suit land and for issuance of permanent injunction restraining the defendant-respondents from interfering with their possession over that land. The case of the plaintiffs was that the suit land described in Schedules ‘A’ and ‘B’ of the plaint originally belonged to Pitabas Sahu. On his death his four sons, Bharat, Suna, Panchu and Sudam amicably divided the said property among themselves and in such division schedule ‘A’ properties fell to shares of Bharat, Panchu and Suna and Schedule ‘B’ land fell to the share of Sudam. Bharat, Panchu and Suna left their village and settled permanently at Palalahara. Bharat Sahu, ancestors of defendant Nos. 1 to 4 sold his share in the suit land to late Balabhadra and Bhagaban by plain paper sale deed dated 12.12.1959 and delivered possession. Similarly, Suna Sahu, father of defendant No. 5 also sold his 1/4th. share in the suit land to Balabhadra and Bhagaban by means of a plain paper sale deed and delivered possession. Late Panchu, ancestor of defendant Nos. 6 to 9 also sold his 1 1/4th share in the suit land to the plaintiff-appellants and delivered possession and accordingly, the plaintiff-appellants remained in possession of all the above noted lands. It was further pleaded that during Hal settlement operation though the parties gave consent about the plaintiff appellants’ right over the lands, yet during final settlement operation the suit land was recorded in the name of the sons of Pitabas. The plaintiff appellants tried for mutation of the lands in their name, but the Tahasildar refused their prayer, which necessitated filing of the above said suit. In the plaint the plaintiff-appellants also pleaded that they have derived their title over the suit land by virtue of their continuous, open and adverse possession for 30 years thereon.
2. The defendant-respondents denied the plaint averment regarding sale of the suit land by plain paper sale deeds to plaintiffs or their ancestors and the possession of the plaintiff-appellants over the same. They also denied acquisition of title by the plaintiff-appellants over the suit land by way of adverse possession. The defendants further challenged the maintainability of the suit on the ground of limitation, lack of cause of action, non-joinder of necessary parties and principle of res-judicata.
3. Considering the plea of the parties, learned trial Court framed as many as seven issues and allowed the parties to lead evidence. On consideration of such evidence he decree of the suit with the observation that the plaintiffs succeeded in establishing their acquisition of title over the suit land on the basis of the sale deeds as well as through adverse possession. The defendants filed appeal bearing Title Appeal No. 43 of 2000 of the Court of learned Additional District Judge, Talcher. The said Court after considering the submissions of the parties and the evidence on record set aside the impugned judgment and decree of the trial Court and remanded the suit with the observation that necessary issues had not been framed and adjudicated. Learned appellate Court indicated three additional issues and directed learned trial Court to dispose of the suit afresh after framing those additional issues and giving opportunity to the parties to adduce further evidence on those Issues. Aggrieved by the said order, the plaintiff-appellants have filed the present appeal.
4. Mr. N.R. Rout, learned Counsel for the appellants submits that the additional issues Nos. 2 and 3 relate to acquisition of title through the un-registered sale deeds and through adverse possession but these aspects were discussed in details by learned trial Court while deciding Issue No. 5. He further states that additional Issue No. 1 relating to the relationship of landlord and tenant in respect of the Schedule ‘A’ proper was nobody’s case and therefore, such an issue was/is not necessary for adjudication of the suit. Mr. Rout further contends that even if the first appellate Court felt that some necessary issues had not been framed by learned trial Court, but evidence were available on record on those aspects, then it could have framed those issues and decided the same on the evidence available on record or if such evidence were not sufficient to adjudicate the issues it could have directed learned trial Court to record evidence of the parties on those issues and submit such evidence to the first appellate Court for adjudication of the issues. According to him, not adopting the above noted course and making open remand of the suit to the trial Court for fresh disposal was against the norms of Order 41 Rule 23 A or 25 of the C.P.C. In support of his plea Mr. Rout cited the case of Ashwinkumar K. Patel v. Upendra J. Patel and Ors. and the unreported case of Sarat Chandra Sahu v. State of Orissa and Anr. in RSA No. 445 of 2006 of this Court.
5. Dr. A.K. Rath, learned Counsel for the respondents on the other hand states that in view of the specific pleadings of the plaintiffs that they acquired title over the suit land by way of adverse possession and the specific denial of the defendants to such pleading learned trial Court was duty bound to frame a specific issue as to whether plaintiffs have acquired title over the suit land by way of adverse possession and that omission to frame such issue precluded the parties from leading proper evidence on that score. He further submits that there was a claim from the side of the defendants that plaintiffs were possessing the suit land as Bhagchasies (tenants) and not as owner-purchasers and because of this pleading there was necessity of deciding whether the relationship of landlord and tenant exists between the parties and whether such an issue was entertainable in Civil Court. According to him for these reasons framing of additional issues and remand of the suit was legally just and proper. In support of his contention, Dr. Rath cited the case of Shri Mahadev Bisi and Ors. v. Niranjan Bisi 2004 (II) OLR 229.
6. Besides the power contemplated under Order 41 Rule 23 & 23 A, C.P.C. a further power has also been conferred under Order 41 Rule 25 on the appellate Court to frame issues and refer them for trial to the Court whose decree has been appealed from, if such additional issues appear essential for just decision of the suit. The scope and ambit of the provision of remand was exhaustively dealt with in the case of Ashwinkumar K. Patel v. Upendra J. Patel and Ors. (supra) by the apex Court. In that judgment the following observation finds place in paragraph-7.
In our view, the High Court should not ordinarily remand a case under Order-41, Rule 23, C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.
The same principle has also been noted by this Court in the cases of Shri Mahadev Bisi and Ors. v. Niranjan Bisi (supra) and Sarat Chandra Sahu v. State of Orissa and Anr. (supra) and the High Court of Bombay and the High Court of Patna in the cases of Narayan v. Malappa Delho Hansda v. Charani Hansda . So the judicial pronouncement on the point says that where there is need for framing of additional issues for proper adjudication of the dispute between the parties, the first appellate Court should normally take recourse to the provisions of Order 41 Rule 25, C.P.C. and remand the matter to the trial Court to frame that specific issue and record its own finding on the issue or may direct the trial Court to record the evidence of the parties on the specific issue and resubmit the matter to the first appellate Court for adjudication of the issue. It is, however, clear that even if a specific issue has not been framed by the trial Court, but the parties were aware of the pleadings and led evidence on that score, then the first appellate Court should record its finding on the issue.
7. In the present case admittedly there was plea of the plaintiff appellants that they acquired title over the suit land not only through the unregistered sale deed but also by continuously remaining in possession over the same for a period of 30 years, hostile to the interest of others. This claim was denied by the defendants in the written statement. The parties were therefore, aware of the plea of adverse possession and led evidence on that score. Similarly, the execution of the unregistered sale deed and the validity thereof had been challenged by the defendants in the written statement and evidence was led on that aspect by the parties and the learned trial Court decided the said controversies in Issue No. 5. The evidence, the pleadings and the findings of the trial Court were available before the first appellate Court. So even if there was no specific issue on the above noted aspects learned first appellate Court could have framed specific issues on that score and adjudicated those issues or in the worst case after framing those additional issues could have sent the matter to the trial Court to record any additional evidence on those issues and to resubmit the record for final adjudication by the first appellate Court. Without adopting these steps, remanding the suit to the trial Court for fresh adjudication was not only against the judicial mandate recorded in the above noted cases, but also amounted to a process which would lead the case to further delay and uncertainty.
8. Regarding additional issues about the relationship of landlord and tenant and the jurisdiction of this Civil Court it was not the case of any of the parties and therefore, such additional issue was not at all necessary for proper adjudication of the suit.
9. For the aforesaid reason, the impugned order is unsustainable in law and the same is accordingly set aside. Consequently, the matter will go back to the first appellate Court for fresh adjudication of the appeal on its own merit, keeping in mind the legal process and the observations noted above. Considering the fact that the first appeal is of the year 2000, the learned first appellate Court would do well to dispose of the same as early as possible, preferably within a period of six months from the date of receipt of this order.
10. In the result, the appeal is allowed on contest. Consequently Misc. Case No. 6 of 2004, which is pending is also disposed of. No cost.