JUDGMENT
B.P. Das, J.
1. Heard Shri S. K. Das for the appellant and Shri P. K. Mohapatra for the respondents.
2. The plaintiff is in appeal against the order dated 20.3.1999 passed by the 2nd Addt. District Judge, Puri, in T. A. No. 18/62 of 1998/95 setting aside the judgment and decree and remanding the suit, i.e., T. S. No. 210/83 to the Civil Judge (Junior Division), Puri, with a direction to readmit the suit and proceed to determine the suit keeping in view the direction of this Court given in S. A. No. 410 of 1989.
3. The short facts necessary for disposal of the present appeal may be stated thus :
The original appellant, namely, Giridhari Pradhan, having died, his legal heirs have been substituted in his place as appellants. The original appellant filled T. S. No. 210/83 in the Court of the Civil Judge (J.D.), Puri, praying for permanent injunction restraining the defendant-respondents from dispossessing him from the suit property.
Plaintiff’s case in the suit is that defendant No. 2-respondent No. 2, Dhyan Ch. Das Goswami, the Mahanta of Radhakanta Math of Puri, was the Marfatdar of defendant No. 1-respondent No. 1, Lord Jagannath Mahaprabhu of Bije Sri Purusottam Khetra, Puri, and owner of the suit property, which is “Amruta Monohi” in character. One Babaji Gour Govinda Das was engaged to look after the garden known as “Itota” measuring an area of six acres and odd. According to the plaintiff, during Car festival, a large number of huts were being constructed there to accommodate the devotees and the pilgrims. The said Gour Govinda Das converted the suit land to a kitchen garden and also constructed a hut and was residing there. In course of time said Gour Govinda Das claimed tenancy right over the suit property for which the plaintiff, who was then a Moharir and was looking after the affairs of the Math, was approached by the then hereditary trustee of the Math to evict the said Gour Govinda Das forcibly and as a reward for evicting the said Gour Govinda Das, the plaintiff was given two acres of land by way of an unregistered lease deed dated 15.2.1970. The plaintiff also claimed title to the suit land by way of adverse possession on the basis of his long standing possession.
The case of the defendants, as would appear from their joint written statement, is that the plaintiff was merely a Gumasta of the Math for which he was provided with a room for his residence, and the unregistered lease deed dated 15.2.1970 was a forged document and the same was utilized in order to grab the suit property. Defendants’ further case is that as the suit land as described in the plaint was not identifiable from the description given in the plaint, no effective decree could be passed in the suit. That apart, the Commissioner of Endowments having not been impleaded as a party, the suit was liable to be dismissed for non-joinder of necessary party.
The trial court considering the evidence on record dismissed the suit by judgment dated 31.3.1988 against which the plaintiff carried an appeal being T. A. No 1/34 of 1989/88 and the learned Addl. Sub-Judge, Puri, disposed of the appeal on 9,11.1989 setting aside the judgment and decree passed by the trial Court and decreeing the suit. The defendants preferred an appeal being Second Appeal No. 410/89 in this Court and this Court disposed of the aforesaid second appeal on 15.12.1993 with the following observations :
“Having found that the plaintiff has been in possession of some land out of the suit property by payment of rent to the Marfatdar for which reason he may be entitled to maintain his possession until evicted in due process of law, no effective decree can be passed in absence of proper identification thereof.”
“I am inclined to remit the case to the trial court for the limited purpose of identification of the property of which the plaintiff has been in possession by acceptance of rent. He would be entitled to an injunction for the time being till he is evicted in due course of law in respect of such properties.”
It is further stated that against the aforesaid order passed in the second appeal, the defendants filed a special leave petition in the Supreme Court but the same was dismissed on 13.5.1994.
4. Shri S. K. Das, learned counsel for the appellant, submits that after disposal of the second appeal, the plaintiff filed an application for amendment of the plaint detailing therein identification of the land and the amendment was duly allowed by the trial court on 12.4.1994. On 29.11.1994 the plaintiff-appellant filed an application under Order 26, Rule 9 of the Code of Civil procedure (‘CPC’ in short) for appointment of a survey-knowing commissioner for identification of the suit property. The trial court allowed the said application and appointed a survey-knowing commissioner, who submitted his report giving identification and demarcation of the suit schedule property. The trial court by judgment dated 29.4.1995 did not accept the Commissioner’s report and dismissed the suit with the observation that the description of the suit property in the plaint was not sufficient for its identification. Against the judgment and decree passed by the trial court, the plaintiff-appellant preferred an appeal before the District Judge, Puri. The appeal on being transferred was heard by 2nd Addl. District Judge, Puri, who by judgment dated 20.3.1999 passed in T. A. No 18/62 of 1998/95 allowed the appeal and set aside the judgment and decree and remanded the suit to the trial court. In paragraph 8 of the judgment, the lower appellate court came to conclude as follows :
“…. The only direction given to the learned lower Court by the Hon’ble Court is for the limited purpose of identification of the property of which the plaintiff has been in possession by acceptance of rent. Thus in view of the above mentioned direction of the Hon’ble Court there was no necessity to frame the issue in question by the learned lower Court. As per the direction of the Hon’ble Court in S.A. 410/89 the learned lower Court without framing the issue in question should have deputed a Civil Court Commissioner to identify some and out of the suit property of which the appellant plaintiff was found in possession on payment of rent to the Marfatdar vide Ext. 2 series more particularly Ext. 2(c) dt. 30.8.80. Thus the learned lower Court lost sight of the direction of the Hon’ble Court given in S. A. No. 410/89 and misdirected his finding given in the impugned judgment. So the impugned judgment passed by the learned lower Court is not in accordance with the direction given by the Hon’ble Court in ASS. A. No. 410/89 and as such the impugned judgment is liable to be set aside as the learned lower Court has failed to exercise his jurisdiction properly. ….”
5. It appears that the trial court had framed an issue to the effect “Is the description of the suit property given in the plaint by the plaintiff sufficient for identification ?”. According to the lower appellate court, the issue was framed as per the direction of this Court given in the second appeal. But the lower appellate court has observed that from the L.C.R. it was found that an issue was framed on 6.12.1983 to the effect “Is the suit land properly described ?” and the same was also answered by the trial court against the plaintiff-appellant as per its judgment dated 31.3.1988. According to the lower appellate court, when that issue had already been answered, there was no necessity to frame an issue after the matter was sent back to the trial court by this Court while disposing of the second appeal. That apart, there was no direction from this Court in the second appeal to frame an issue. Similarly there was no occasion on the part of the trial court to frame the issue and answer the same on the face of the direction of this Court to the trial court to identify the property of which the plaintiff had been in possession by acceptance of rent.
6. The fact remains that the civil court commissioner has already given a report and the said report is on record. According to Shri Das for the appellant, instead of remanding the matter to the trial court, the lower appellate court should have decided the question of identification of the property as the entire evidence was available before it. As the suit is of the year 1983, further remand of the matter to the trial Court will be time-consuming and the parties may not be able to enjoy the fruits of the litigation. That apart, i find that the order of remand passed by the lower appellate court does not come within the realm of Order 41, Rule 23, C.P.C. Law in this regard is well settled that the Appellate Court is required first to make an endevour to answer the disputed findings and where inspite of such findings it would remand the suit for fresh trial. It should be remembered that early conclusion of a lis on merit is the public policy. In the name of “ends of justice” or “proper adjudication” the Appellate Court is not to avoid the onerous responsibility cast on it by the CPC. (See AIR 1986 Orissa 207 : Rushi v. Madan Behera).
7. On the facts and circumstances of the case, in my considered opinion, the lower appellate court should have made an endeavour to deal with the issue and finding first instead of remanding the matter to the trial court. Accordingly, I set aside the impugned order dated 20.3.1999 passed in T. A. No. 18/62 of 1998/95 and direct the District Judge, Puri, to do deal with the issue and the finding first. Let this exercise be completed within a period of four months from the date of receipt of this order. Both the parties are directed to appear before the District Judge on 20.1.2003 when the latter shall dispose of the matter after hearing the parties in accordance with law.
The misc. appeal is allowed with the above direction. No costs.