Posted On by &filed under Gauhati High Court, High Court.


Gauhati High Court
R.K. Tombi Alias Tombisana Singh vs R.K. Maipaksana Singh And Ors. on 20 September, 2000
Author: H Singh
Bench: H Singh


JUDGMENT

H.K.K. Singh, J.

1. This Second Appeal is against the appellate decree dated 29.11.1996 passed by the learned District Judge Manipur East,
Imphal in Civil Appeal No. 10/1995 thereby setting aside the decree dated 2.1.1995 passed by the learned Subordinate Judge No. 11, Manipur East in original suit No. 21/1993. By the aforesaid appellate decree, the learned appellate court after setting aside the impugned judgment and decree of the trial court remanded the suit with a direction to frame additional issues and also to modify some of the issues in the light of the observation given in the judgment and for proceeding with the case after giving opportunities to the parties to adduce additional evidence in respect of the additional and the modified issue.

2. The appellant herein as plaintiff brought the suit before the trial court praying for declaration of his right and title over the suit land under patta No. 76/130 (old)/patta No. 76/308 covered by Dag No. 3083 Tellou, village No. 761 I.E.T. measuring 2.75 acres and for declaration that entries made in favour of the principal defendants in the land records in respect of the suit land as null and void. According to the plaintiff, while he was in service as a sepoy in the Assam Rifles orally purchased, through his brother (defendant No. 1), his elder sister R.K. Sanahanbi Devi and their mother Late Nupimacha Devi, the suit land from its original owner Rajmani Sharma, the father of the pro forma defendants (respondents herein) at a sum of Rs. 700 in 1960. It is pleaded by the plaintiff that his family members possessed the suit land till 1969 and thereafter he himself has been in possession and enjoyment of it since the day of Sripanchmi of the year 1970 through his tenants though the suit land was found recorded in the name of defendant No. 1, thereafter, in the name of defendant No. 2 and lastly in the name of defendant No. 3. Hence, the suit.

3. The defendant Nos. 1, 2 and 3 contested the suit by filing a joint written statement. According to them, the defendant No. 1 purchased the suit land with his own money from its original owner and got his name recorded in the record of rights. So, he has full authority to transfer the same to whomsoever he liked. It is also asserted that earlier, regarding the same suit land the plaintiff had instituted another suit being original suit No. 45 of 1991/34/1993 between the same party and the suit was disposed of on 29.9.1993 by rejecting the plaint under Order 7 Rule 11 (d) of CPC. It was also pleaded that the suit was barred by the principles of res judicata under Section 11 of CPC.

4. The proforma defendants, who are the legal heirs of the original owner of the suit land, viz. Late Rajmoni Sharma, in their written statement stated that the suit land was sold to the plaintiff for Rs. 700 orally in the year 1960 and possession was delivered in his
favour. They also asserted that the defendant Nos. 1, 2 and 3 had no right over the suit land.

5. The trial court framed the following issues :

“1. Whether the plaintiff has acquired right to the suit land by means of adverse possession as against the defendants ?

1 (A) Whether the plaintiffs suit is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988 vide order dated 14.11.1994?

2. Whether the plaintiff has locus standi to file the present suit ?

3. Cause of action ?

4. Whether the suit is barred by Section 11 of the C.P.C. 1908 as a suit of similar nature between the same party in respect of the present suit land was already decided by the learned Sub- Judge-I, Manipur East vide order dated 29.9.1993 in O.S. No. 45/91/34/93 of her court?

5. Whether the plaintiff is entitled to the reliefs claimed ?”

6. The suit was decreed by the Trial Court and as noted above, on appeal, the learned first Appellate Court set aside the judgment and decree of the Trial Court and remanded the case.

7. Mr. M. Manglem, the learned counsel appearing on behalf of the appellant has questioned the legality of order of remand submitting, inter alia, that there was no necessity of framing of any additional issues or amending of any existing issues.

8. The present appeal has been registered as a second appeal by this court and even substantial points of law for the purpose of decision of the second appeal have been framed at the time of admission of appeal by an order dated 11.3.1997 which are also reproduced below :

” 1. Whether non-framing of any issue as regards the question as to whether defendant No. 1 as a trustee of the plaintiff and misled the parties to adduce evidence ?

2. Whether the first appellate court can remand the suit with the finding that proper issues were not framed by the trial court without framing the issues necessary for proper disposal of the suit ?

3. Whether the first appellate court while remanding the suit followed the Order 41 Rule 23 of C.P.C. ? And any other question of law.”

9. At the outset, one important question of law which has arisen in
the present appeal has to be decided. That question is, whether this court should hear the present appeal as a second appeal and in accordance with the provision contained under Order 42 read with Order 41 of CPC or as an appeal under Order 43 Rule l(u) C.P.C.

10. The power of the appellate court includes power to remand a case (Section 107 of CPC). The provision of remand of the case by the first appellate court is found in Rules 23 and 23A of Order 41 (Rule 23A was inserted by Amendment Act 104 of 1976). In our present case, the decree/order of remind was passed in an appeal against the decree of the trial court which was passed after trial on all the issues framed in the suit. Thus, in the present case, the remand was made under the provisions of Rule 23A of Order 41 C.P.C. And the learned first appellate court, after setting aside the judgment and decree, directed the trial court to proceed with the case afresh by framing additional issues and also modifying some of the issues in the light of the judgment and the parties were to be given opportunities to adduce evidence in respect of the said additional and modifies issues.

11. Now, the question to be determined is whether the trial court has finally adjudicated upon the rights of the parties in respect of the ‘lis’ between the parties. The answer is in the negative. The learned appellate ‘court did not decide the rights of the parties finally. But it was left to be decided by the trial court afresh after trial, as directed. Thus, may considered opinion in a case like the present one is that, the scope and ambit of this court in hearing the present appeal will be in respect of the legality or otherwise of the order of remand only and not to decide the entire case on the right and title of the contesting parties.

12. The order of remand was only on the ground of non-framing of essential issues. The first appellate court indicated that one additional issue regarding acquisition of right of the plaintiff over the suit land by means of adverse possession as against the true owner was to be framed. The learned court also directed that another issue as to whether defendant No. 1 had acquired title by adverse possession was also to be framed. Lastly, it was also directed that an issue on the question as to whether the defendant No. 1 was a trustee of the plaintiff at the time of the sale transaction and also possessed the suit land on behalf of the plaintiff, was also to be framed. And the learned appellate court reached the conclusion that the determination on these issues were necessary for a correct decision in the case.

13. Issues arises when a material proposition of fact or law is affirmed by one party and denied by the other and the material propositions
are those propositions which the plaintiff must allege in order to show his right to sue or a defendant must allege in order to constitute his defence and each material proposition affirmed by one party and denied by the other shall form a subject-matter of distinct issue. Formulation of the essential distinct issues for determination of the right of the parties is one of the most important duty of the court. Thus, at the first hearing of the suit the court shall ascertain the allegations made in the pleadings and whether those allegations made in the pleadings by the one party are admitted and denied by the other side and for that matter the court may examine the parties or any other person (Order 10 C.P.C.). The materials from which issues may be framed are described in Rule 3 of Order 14 CPC.

14. Here it may be pointed out that all the allegations made by one of the parties and denied by the other do not necessarily constitute-the essential distinct issues for a case. But, only those issues which are essential and necessary for the determination of the matter in controversy in the case are to be framed. Thus, ever if, a disputed fact arose between the parties, the same may not be relevant or essential for the purpose of deciding the case.

15. Provision of remand of the appellate court particularly in respect of remand under the provisions of Rule 23A of Order 41 CPC has to be considered along with other provisions like Rules 24 and 25 of Order 41 CPC. Again, before an order of remand is made either in Rule 23 or Rule 23A of Order 41, the appellate court has to consider if the case may be decided finally under the provisions of Rule 24 of Order 41. The settled proposition of law is that if the parties fully knew each others cases as pleaded, and also have led evidence on their pleaded cases, even if any specific issue on any specific point has not been framed, a decision may be made on the basis of the evidence led by the parties, if according to the learned court, no prejudice has been caused. Though this accepted proposition has to be applied in a given case cautiously and the most important point in this matter is to see if no prejudice has been caused to any of the parties. Thus, an attempt is to be made by the appellate court to see if the case can be decided on the basis of the evidence available on record, in this regard, I re-call a decision in the case of Lalit Mohan Nath, plaintiff-petitioner v. on the death of Mohan Nath, his heirs Jhanendra Nath and others, defendants- Opp. Parties, reported in AIR 1974 Gau. 68, wherein it has been held by a Single Bench of this court that remanding of a case without making an attempt to dispose of the matter under Order 41 Rule 24 is illegal.

16. Issue No. 1 as framed by the trial court pertains to acquisition of title of the plaintiff by adverse possession against the defendant. The
defendants means all the defendants as arrayed in the plaint whether they are contesting or not contesting. Again, defendant for the purpose of Limitation Act includes any person from or through whom the defendant derives his liability to be sued. Thus, the issue suggested by the learned first appellate court regarding acquisition of right of the plaintiff against the true owner and his legal heirs, proforma defendants being there already as the issue No. 1, the direction is not called for and it may even be noted here that all the proforma defendants have filed a joint written statement in which they have admitted the claim of the plaintiff.

17. Aagain regarding the acquisition of right by adverse possession by the defendant No. 1, no issue was framed by the trial court. And according to the learned first appellate court this issue should be framed to enable the defendant No. 1 to adduce evidence and prove the same from perusal of the written statement filed by the defendant No. 1 (defendant Nos. 1, 2 and 3 have filed a joint written statement) it clearly discloses that no specific averment had been made by the defendant No. 1 regarding acquisition of his right by adverse possession. It has been averred in para 9 of the written statement, the defendant No. 1 purchased the suit land with his own name from the father and husband of proforma defendants in the year 1960 or so and since then the defendant No. 1 has been possessing the suit land by getting his name recorded in the record of rights in respect of the said land. And in his statement on oath as D.W. 1, the defendant No. 1 stated that he purchased the land about 10 or 20 years ago from the day of his statement (defendant No. 1 was examined on 4.8.1994). He again stated that he possessed for about 20 years. Here it may be pointed out that while trying the issue No. 1, the court has to discuss not only the evidence produced on behalf of the plaintiffs, but also the evidence produced on behalf of the defendant, Thus, the contesting defendant had ample opportunity to adduce evidence on issue No. 1.

18. Regarding the issue on the question whether the defendant No. 1 was the trustee of the plaintiff, as this matter is covered by the issue No. 1A, no other issue is necessary.

19. It has been noticed above that before an order of remand is made, the appellate court has to see if the entire case may be disposed of on the basis of the available materials on record. In our present case, the learned first appellate court discussed some evidence adduced by the parties, but no attempt was made to see whether the case could have been decided on the basis of the evidence on record. Thus, I am of the opinion that it would be just and proper for the first appellate court to make an attempt to decide the matter finally on
the basis of the evidence adduced by the parties on the existing issues, without making any order for remand of the case to the trial court.

20. For the aforesaid reasons, the appeal is allowed. The impugned judgment and decree of the first appellate court are set aside and the case is remanded to the first appellate court to are set aside and the case is remanded to the first appellate court to rehear the appeal and dispose of the same early. The Court Fee paid by the appellant in this appeal be refunded.


Leave a Reply

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

89 queries in 0.172 seconds.