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2024 DAILYLAW 1486 (ORI)

Raina Malik v. Kailash Malik

2024-11-20

G Satapathy

body2024
JUDGMENT: G. Satapathy, J. 1. This appeal under Order-XLIII Rule-1(u) r/w Sec. 105 of the Code of Civil Procedure, 1908 (in short “the CPC”) is directed against the reversing judgment passed on 16.08.2023 in RFA No.02 of 2008 by which the learned Additional District Judge, Jajpur, while setting aside the judgment and decree dated 05.10.2007 and 12.10.2007 passed by the learned Civil Judge, (Sr. Division), Jajpur in T.S. No. 233 of 1996 dismissing the suit of the Plaintiffs, has remitted the aforesaid suit to the learned Sr. Civil Judge for fresh disposal in the light of observation made in the judgment passed in the first appeal. For clarity and better appreciation, the parties in this appeal from the order(SAO) are referred to as they were in the original suit in T.S. No. 233 of 1996. 2. The short facts involved in this case in precise are that one late Mahendra Malik and Dibakar Malik who were the predecessors in interest of the principal Respondents in this present appeal had instituted the suit against the present Appellants and Proforma Respondents in the Court of learned Civil Judge(Sr. Division), Jajpur in T.S. No. 233 of 1996 for partition of suit schedule properties morefully described in schedule-A, B and C of the suit constituting altogether 41 plots. According to the original Plaintiffs, the suit schedule properties are their undivided joint family property, but the CS ROR has been wrongly prepared. The original Plaintiffs had claimed that they were the sons of Yudhistira, but their sister Michhu being the daughter of Yudhistria had relinquished her interest in their favour before her death, though the Defendants Nos. 18 & 19 are her LRs. The original Plaintiffs had also claimed right over schedule “C” land which is Sikkim tenant Property by alleging that Tauli and Chintei, the predecessors-in-interest of the Defendants had managed to record the Sikkim plots more in their favour. It is their further claim that they are entitled to ½ share in the suit properties, but when the Defendants did not agree for a partition of the suit properties, they filed the suit for partition. 3. The Defendant Nos. 1 to 5, 7 to 10 and 14 filed their joint written statement denying the claim of the Plaintiffs by inter-alia questioning the maintainability suit for want of cause of action and disputing the genealogy appended to the plaint. 3. The Defendant Nos. 1 to 5, 7 to 10 and 14 filed their joint written statement denying the claim of the Plaintiffs by inter-alia questioning the maintainability suit for want of cause of action and disputing the genealogy appended to the plaint. According to the answering Defendants, the original Plaintiffs were only entitled 1/3 rd share and the note of possession over schedule “B” property is the outcome of partition by metes and bounds and thereby, they alternatively pleaded for allotment of 2/3 rd share in their favour in respect of suit schedule “A” land which was acquired by Tauli, Chintei and Kapila from the Jamindar with 1/3 rd share each. It is the further pleading of the Defendants that Kapila died in the year 1935, but Sec. 236 of Orissa Tenancy Act came into force after 1935 and, thereby, the Plaintiffs were not entitled to any share as Sikkim tenant and they(answering Defendants) being the successors of Tauli and Chintei are entitled to 1/3 rd share. It is the further case of the the answering Defendants that Yudhistira being the father of the Plaintiffs had filed O.L.R. Case No. 1360/76 against Srinath Samal and Khageswar Samal admitting his share as 7 Anna in schedule “C” land for which they are estopped to raise any contrary claim. While praying to dismiss the suit, the answering Defendants had claimed possession over 2/3 rd of the suit schedule properties by advancing alternative plea of adverse possession and plea of ouster. On the other hand, Defendants Nos. 18 to 21 filed their separate joint written statement, but supporting the stand taken by the Plaintiffs. 4. On the basis of rival pleadings, the learned trial Court framed necessary issues and proceeded to adjudicate the suit by dismissing it. Accordingly, Plaintiffs challenged the judgment and decree passed on 05.10.2007 and 12.10.2007 by the learned Civil Judge, (Sr. Division), Jajpur in T.S. No. 233 of 1996 by preferring an appeal before the learned Additional District Judge, Jajpur in RFA No. 02 of 2008, wherein learned Additional District Judge after hearing the parties and on going the pleadings and evidence on record formulated the following two points:- (i) Whether Arta Malik is the common ancestor of the parties? (ii) Whether the suit schedule properties are liable for partition? (ii) Whether the suit schedule properties are liable for partition? In consideration of the aforesaid two points, the learned ADJ, Jajpur by the impugned judgment has answered the points in favour of the Plaintiffs, but remitted the matter back to the learned trial Court for fresh disposal in accordance with law by holding that the suit properties are in joint possession of the parties and have not been partitioned among the parties by metes and bounds and the suit properties are thereby liable for partition. The aforesaid findings of the learned First Appellate Court are under challenge in this appeal from order by the unsuccessful Respondents who were contesting Defendants in the suit. 5. Mr. B. Muduli, learned counsel appearing for the Appellants, has submitted that although the Plaintiffs have claimed for partition over 41 plots, but separate note of possession was not reflected in respect of 6 plots only, however, the learned First Appellate Court has not differ with the findings of the learned trial Court to the extent of land possessed by the predecessor-in interest of the Plaintiffs which was to the extent of Ac 2.45 decimal and which comes to 1/3 rd of the suit properties, but the learned First Appellate Court remitted the matter back to the learned trial Court after long lapse of 15 years without determining the share of the Plaintiffs to the extent of 1/3 rd of the suit properties in plot Nos. 195,2182,1007,1972,1990 and 2093. He has further submitted that assuming the aforesaid suit plots to be in joint possession of the parties and have not been partitioned among the parties by metes and bound, the Appellate Court should not have remitted the matter back to the trial Court for fresh adjudication in respect of the whole suit properties, instead it should have calculated the share of the parties in respect of the aforesaid suit plots. Mr. Muduli has accordingly prayed to allow the appeal by setting aside the impugned judgment of the First Appellate Court by restoring the findings of the learned trial Court. 5.1. On the other hand, Mr. S. Rath, learned counsel appearing for the contesting Respondents has submitted that the learned First Appellate Court has rightly passed an order by setting aside the impugned judgment and decree of the learned Civil Judge, Sr. 5.1. On the other hand, Mr. S. Rath, learned counsel appearing for the contesting Respondents has submitted that the learned First Appellate Court has rightly passed an order by setting aside the impugned judgment and decree of the learned Civil Judge, Sr. Division in the suit because there is unity in possession of the suit land and the same having not been partitioned by metes and bound, the learned First Appellate Court has no other option, but to direct for partition by setting aside the impugned judgment of the learned trial Court. On the aforesaid submission, the learned counsel appearing for the Respondents has prayed to dismiss the appeal. Further, in support of his contention, Mr. Rath has also relied upon the decisions in (i) Pallabgunjan Satpathy and others Vrs. Banchha @ Banchhanidhi Palei and others ; 2014 (II) CLR 339, (ii) Surjeet Singh and another Vrs. Sadhu Singh and others ; 2018 SAR (Civil Supp.II) 865, (iii) Jayaprakash and another Vrs. T.S. David and others ; 2018 SAR (Civil) 418 and (iv) Hiya Associates and others Vrs. Nakshatra Properties Pvt. Ltd. ; 2018 SAR (Civil Supp.II) 535. 6. After having considered the rival submissions upon perusal of record, there appears no dispute about the learned First Appellate Court setting aside the impugned judgment of the learned trial Court by answering point Nos.(i) and (ii) in favour of the Appellants therein who are Respondents herein, but strangely enough, the learned First Appellate Court after holding the suit property to be liable for partition in answering point no.(ii) has remitted the matter back to the learned trial Court for its fresh disposal. It is not understood as to under what circumstance the learned First Appellate Court has remitted the matter back for fresh disposal. For better clarity, the relevant findings of the learned First Appellate Court on point no.(ii) is extracted here under:- “When the properties are in joint possession of the parties and have not been partitioned among the parties by metes and bound, it can be definitely said that the unity of title over the land under Khata No. 2 & 70 so also the land under plot Nos. 1007,1972,1990 and 2093 under C.S. Khata No. 90 still exists. Under such circumstances, the properties under Khata Nos. 2 & 80 and the properties under plot Nos. 1007,1972,1990 and 2093 under C.S. Khata No. 90 are liable for partition. 1007,1972,1990 and 2093 under C.S. Khata No. 90 still exists. Under such circumstances, the properties under Khata Nos. 2 & 80 and the properties under plot Nos. 1007,1972,1990 and 2093 under C.S. Khata No. 90 are liable for partition. Therefore, the findings of the learned trial Court on that aspect is not acceptable.” 7. Having held that the aforesaid suit plots are liable for partition, the learned First Appellate Court has not proceeded further to determine the share of the parties nor has discussed anything or evidence on record to find out the share of the parties. Why the learned First Appellate Court has not proceeded further to determine the share or interest of the parties is not understood, but the law on this point has been couched in the latin maxim “Interest republicae ut sit finis litium” which means that it is in the best interest of the State to put an end to the litigation. Although the learned First Appellate Court has overturned the findings of the learned trial Court, but it has not proceeded further to determine the share or interest of the parties and remitted the matter back for fresh disposal which is contrary to the law. It is not the case where the learned 1 st Appellate Court has stated that the evidence is deficient to decide the share or interest of the parties. 8. The responsibility on a Judicial Officer is manifold, but his primary duty is to decide the case in accordance with law on the existing materials/evidence on record, but leaving or shirking away from such responsibility is not conformity with the judicial discipline which a judicial Officer has to follow. In the context of the present judgment, there appears absolutely no reasoning as to why the learned First Appellate Court remitted the matter back for fresh disposal in accordance with law, especially when it has not been concluded in the impugned judgment that the evidence is deficient to determine the share or interest of the parties, but the findings of the learned First Appellate Court has driven the parties to this Court for seeking redressal of their grievance which is not in the interest of justice. The contesting Appellants in this appeal has also stated in their written notes that the learned First Appellate Court could have determined the share of the parties by declaring the share of the Plaintiffs to be 1/3 rd in the suit property. 9. Be that as it may, the scope and limitation of remand has been outlined in Order XLI, Rule 23 to 25 of the CPC including Rule 23-A, but Rule 23, 23-A and 25 clearly refers to remand to the Court from whose decree, the appeal is preferred. Out of the aforesaid three contingencies, Order XLI, Rule 23 of the CPC refers to remand of the suit decided upon a preliminary suit, but it is not the case at hand. The second contingency i.e. Order XLI, Rule 23-A of the CPC categorically lays down that where the Court from whose decree an appeal is preferred has disposed of the suit otherwise than on a preliminary point and the decree is reversed in the appeal, but a retrial is considered necessary, in such contingency, the Appellate Court shall have the power to remand the suit for fresh adjudication and the last contingency is that where the Court from whose a decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of facts, which appears to the Appellate Court essential to the right decision of the suit on merits, the Appellate Court may, if necessary, frame issues and refer the same for the trial to the Court from whose decree the appeal is preferred and in such case, it shall also direct such Court to take the additional evidence required. 10. On a careful conspectus of the impugned judgment passed by the learned First Appellate Court, it appears that the learned First Appellate Court has made an open remand to the learned trial Court for fresh adjudication in the matter which in the circumstance the learned Appellate Court deems to have resorted to Order XLI, Rule 23-A of the CPC which is contrary to the principle of remand. Since the learned First Appellate Court has not come to a finding that the evidence on record is deficient so as to enable it to determine the share of the parties or it is unable to pronounce the judgment on the existing evidence and thus, the remand order as passed by the learned First Appellate Court in this case being contrary to law is liable to be set aside. Further, public policy demands that litigation should be concluded finally as far as possible. Further, the impugned judgment of the learned First Appellate Court is erroneous not only on the above premises but also for the following reasons that it has not come to any finding that the conclusion so arrived at by the learned trial Court on different issues are wrong and it is unable to pronounce judgment for want of evidence and it has not at all assigned any reason to remit the matter back to the learned trial Court for fresh disposal. Further, it has not been clarified by the learned First Appellate Court whether the evidence is deficient or there is lack of issue, but on the other hand, it appears to this Court that there is no such infirmity or deficiency of evidence on record. It clearly appears from the impugned judgment that the learned First Appellate Court has simply avoided to decide the lis finally by determining the share of the parties, but it has driven the parties to litigate again and again by remitting the matter back to the learned trial Court without deciding it finally. In the event, the learned First Appellate Court has decided the issue by determining the share or interest of the parties, it would have given more precise meaning to the parties to decide further either to challenge such finding of the learned First Appellate Court or not. 11. No doubt learned counsel for the Respondents has relied upon the decision in Pallabgunjan Satpathy(supra) , but it is not applicable to the case at hand since the learned First Appellate Court had not reversed judgment and decree of the learned trial Court by considering that a retrial is necessary nor the First Appellate Court has concluded that the learned trial Court has omitted to frame or try any issue to determine any question of facts. Similarly, the ratio in Surjeet Singh(supra) is distinguishable from the facts of the present case inasmuch as therein a remand of suit was considered necessary by the High Court of Himachal Pradesh to decide the first appeal and cross objection afresh on merits in accordance with law, but herein the learned First Appellate Court has not whispered a single word as to whether the retrial or remand of the suit is necessary. Moreover, the decision as relied on by the Respondents in Jayaprakash and another(supra) is considered respectively, but found distinguishable from the facts of the present case inasmuch as the exparte decree passed therein was set aside without noticing the Defendants and the trial Court again decreed the suit exparte against such Defendants, but in the present case there is absolutely no mention as to why the retrial is considered necessary in this case, rather the learned First Appellate Court has proceeded to hold that the suit property is liable for partition, but it has withheld to determine the share/interest of the parties which is contrary to law. 12. It is also well settled that remand of a case to the Court from whose decree the appeal is preferred is considered necessary when the superior Court/Appellate or Revisional Court finds such Court to have failed to decide some material issues in the original case or there is some procedural lacuna noticed in the trial which is not only adversely affected the rights of the parties, but also cannot be rectified without a retrial or when some additional evidence is considered necessary to decide the rights of the parties which was not before the trial Court and, therefore, the remand of the case for suit should not be considered lightly, rather it should be passed on sound exercise of principle in conformity with the provisions of law. In this case, the learned First Appellate Court has not only remitted the matter in contravention to the provisions of law, but also has failed to record any finding as to why retrial or remand is necessary only to determine the share/interest of the parties. Consequently, such observation/finding of the learned trial Court being unsustainable is liable to be set aside and it is, accordingly, set aside. Consequently, such observation/finding of the learned trial Court being unsustainable is liable to be set aside and it is, accordingly, set aside. It is, however, made clear that the findings of the remand of suit back to the learned trial Court for fresh disposal is hereby set aside and the learned First Appellate Court is hereby directed to decide this appeal on merits afresh in accordance with law by determining the share and interest of the parties on the basis of analysis of evidence on record. This Court has, however, not expressed any opinion with regard to findings of the learned First Appellate Court on point nos. (i) & (ii) which may be further subject to challenge by any of the parties, if not satisfied with the result of the first appeal. 13. In the result, the present appeal from order stands allowed on contest, but to the extent indicated above, however, no order as to costs. The appeal is remitted back to the learned First Appellate Court for fresh disposal in the light of observation made hereinabove.