IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.100 of 2003
BHUBNESHWARI DEVI
Versus
ISAK LAL YADAV & ORS
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20. 12.07.2010 Heard learned counsel for both sides, who are in
agreement that this appeal be disposed of at the admission stage
itself.
This appeal has been preferred against order of the
lower appellate court, remanding the Title Appeal No. 01 of
1998, for a fresh decision on the materials available on record
and in Para 19 of the judgment, it is said that issue of adverse
possession is required to be framed and if at all it is necessary
further evidence may be taken up.
After some arguments, learned counsels
representing the parties arrived at agreement that there was
ample evidence, oral and documentary on the record for
determination of all relevant issues, there is nothing to adduce
any more.
The court below appears, discussing the finding of
the trial Court in casual manner and arriving at the conclusion
that some relevant points for determination of particular issue,
that is question of title of plaintiff and his vendors had not
properly been considered.
If there is pleading of the parties and evidence
available on record, the lower appellate court may frame or
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modify the relevant issues, and arrive at its finding, but only
because some of the points upon which decision on main issues
was dependent there is no specific finding of the trial Court,
the lower appellate Court has got no right to remand the case,
all endeavours must have been more to decide the appeal on its
merit, this is what Rule 24 of Order 41, Code of Civil
Procedure requires, it reads as such:-
24. Where evidence on
record sufficient, Appellate Court
may determine case finally –
Where the evidence upon the
record is sufficient to enable the
Appellate Court to pronounce
judgment, the Appellate Court
may, after resettling the issues, if
necessary, finally determine the
suit, notwithstanding that the
judgment of the Court from whose
decree the appeal is preferred has
proceeded wholly upon some
ground other than that on which
the Appellate Court proceeds.
As stated earlier, the learned counsels representing
the parties had frankly submitted that no more evidence is
required to be adduced by either of the side. I find no reason to
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concur order of the court below, remanding the appeal.
In the result, impugned order is set-aside and matter
is remitted to the lower appellate court for fresh decision on the
materials available on record. Simultaneously, it is also
directed that lower appellate court shall preferably decide the
appeal on its merit, within six months of receipt of copy of this
order.
The parties shall appear before the lower appellate
court for further endeavours on 30th July 2010, i.e. Friday,
accordingly, this appeal stands disposed of.
Let, this order be communicated to the lower
appellate court through Fax, at the cost of appellant.
As state Praveeen (Akhilesh Chandra,J.)