Patna High Court
Lakshman Prasad vs Ram Darshan Mahto & Ors on 14 March, 2014
Author: Amaresh Kumar Lal
Bench: Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.561 of 2008
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Lakshman Prasad, son of Late Shri Ram Lochan Prasad, resident of Mohalla-
Miscot, P.S.-Motihari, District- East Champaran.
....Plaintiff-Appellant/s
Versus
1. Ram Darshan Mahto, son of Ganesh Mahto.
2. Ramrit Mahto, son of Ganesh Mahto.
3. Triloki Mahto, son of Bhagirath Mahto.
(All residents of village, P.O. and P.S.-Bagaria, District- East Champaran)
4. Brij Kishore Singh, son of Late Bahadur Singh, resident of village & P.S.-
Banjaria, P.O.-Motihari, District- East Champaran.
5. Smt. Kishori Devi, daughter of Late Bahadur Singh, wife of Uday Singh,
resident of village- Saidpur, P.O.-Chamuhan, P.S.- Karkariyaganj, District-
West Champaran.
6. Krishna Nandan Singh, son of late Mahabir Singh of village-Kachurbari,
P.S.-Adapur, District- East Champaran.
7. Karuna Jha, wife of Laxmi Kant Jha, resident of village and P.S.- Banjaria,
P.O.-Motihari, District- East Champaran.
8. Manju Jha, wife of Awadh Kishore Jha, resident of village-Harpur, P.S.-
Majourganj, District- Sitamarhi at present village and P.S.-Banjaria, P.O.-
Motihari, District- East Champaran.
9. Ramashish Mahto, son of Sunder Mahto, resident of village and P.S.-
Banjaria, P.O.-Motihari, District- East Champaran.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Vijay Shanker Shrivastava, Advocate
Mr. Kumar Uday Singh, Advocate
For the Respondent/s : Mr. B.P. Pandey, Sr. Advocate
Mr. Pravin Kumar Sinha, Advocate
Mr. Aditya Narain Singh No.1, Advocate
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CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
C.A.V. JUDGMENT
Date: 14 -03-2014
The plaintiff-appellant has preferred this appeal against
the judgment and decree dated 21.06.2008 passed by the learned
Additional District Judge, F.T.C.IV, Motihari in Title Appeal No.23
of 1994/25 of 2007 by which the judgment and decree dated
24.02.1994and 9.03.1994 respectively passed by the learned Sub- Patna High Court MA No.561 of 2008 dt.14-03-2014 2/7 Judge-I, Motihari in Title Suit No.1 of 1987 have been set aside and the case has been remanded to the learned Sub-Judge to pass fresh judgment and decree after impleading Government Authorities in the suit, who has issued Purcha in favour of defendant nos. 6 & 8 (respondent nos. 1 and 3) and also to frame and decide the issue of adverse possession claimed by the defendant no.7 (respondent no.2).
2. The plaintiff-appellant filed Title Suit No.1 of 1987 in the court of Sub-Judge for declaration that the suit land belongs to the plaintiff and he is in possession by virtue of purchase from the lawful title holder, who had been in possession of the same and for further declaration that the defendants had no title over the suit land and consequently, they were incompetent to disturb the possession of the plaintiff over the same. Further relief, i.e. in case the plaintiff is found dispossessed from any part of the suit land, then the decree for recovery of possession of the same may also be passed, was also sought for. The Purcha issued in favour of defendant nos. 6 to 8 are fraudulent and not binding on the plaintiff as they were issued behind his back.
3. The defendant nos. 1, 3, 4 and 5 filed their written statement supporting the written statement of defendant nos. 6 and 8. The defendant no.7 filed his written statement and supported the case of other respondents.
Patna High Court MA No.561 of 2008 dt.14-03-2014 3/7
4. On the basis of pleadings of both the parties, seven issues were framed by the learned Sub-Judge. In support of his case, the plaintiff has examined 44 witnesses. The defendants have also examined 41 witnesses.
5. After hearing both the parties, the suit was decreed by the learned Sub-Judge in favour of plaintiff-appellant and the Purcha granted by the Anchal Adhikari in favour of defendant nos. 6 and 8 were also cancelled.
6. Against the aforesaid judgment and decree, Ram Darshan Mahto, Ramrit Mahto and Triloki Mahto, respondent nos. 1, 2 and 3 filed Title Appeal No.23/94. After hearing both the parties, the learned Additional District Judge, F.T.C.IV, Motihari has set aside the judgment and decree dated 24.02.1994 and 9.03.1994 passed by the learned Sub-Judge and remanded the case for fresh judgment and decree after impleading the government authorities, who had issued Purcha in favour of defendant nos. 6 and 8 and also to decide the issue as to whether defendant no.7 acquired title and possession over the suit land by virtue of adverse possession. The learned Additional District Judge has framed 7 issues and remanded the case, as aforesaid.
7. It is submitted on behalf of the appellant that material before the Court was sufficient to decide the matter in issue and if at Patna High Court MA No.561 of 2008 dt.14-03-2014 4/7 all any fresh issue is required to be framed, it could have been done by the appellate court itself. There is no finding of the appellate court that materials are not sufficient nor any of the parties ever applied for any material to be considered as additional evidence. Order 41 Rule 24 of the Code of Civil Procedure deals with such matter. It empowers the appellate court to determine the case finally. He has further submitted that there is sufficient material on the record to decide the matter even on the issue framed by the learned appellate court. In support of his contention, he has relied upon decisions in the case of Smt. Gayatri Devi Vs. Ram Balak Singh and Ors. reported in 2014 (1) PLJR 356 and Kailash Chandra Mohanto and Ors. Vs. Rajkishore Mohanto and Ors. reported in AIR 1965 Orissa 108.
8. The learned counsel for the respondents has submitted that the Anchal Adhikari, who is the Collector under the Bihar Privileged Persons Homestead Tenancy Act, 1947 has passed order granting Purcha to defendant nos. 6 and 8 (respondent nos. 1 and 3). Under the Act, no suit is maintainable against that order except on the ground of fraudulent. Since the Purcha has been granted in favour of defendant nos. 6 and 8, the Anchal Adhikari is necessary party to the suit. Without hearing the State, the Purcha cannot be set aside. He has further submitted that Order 7 Rule 11 (d) read with Section 99 of the Bihar Privileged Persons Homestead Tenancy Act, the suit was not Patna High Court MA No.561 of 2008 dt.14-03-2014 5/7 maintainable, as such; the learned appellate court has rightly remanded the case to implead Anchal Adhikari as a party and after giving notice to proceed with the title suit. Since Anchal Adhikari is the Collector under the Act and has vested the right of possession to respondent nos. 6 and 8, the State is the owner of the land, as such, the State is the necessary party and in the appeal neither any notice has been given to the State nor the Anchal Adhikari has been made party to the suit and without impleading to the proper party, the suit is not maintainable. In support of his contention, he has relied upon a decision in the case of Shiv Kumari Devi and Ors. Vs. Birendra Singh and Ors. reported in 2007 (4) PLJR 107.
9. After hearing the learned counsel for both the parties and on perusal of the impugned judgment, it appears that there is sufficient material before the court to decide the matter in issue and if at all any fresh issue was required to be framed, it could have been done by the appellate court itself, but there is no finding of the court that materials are not sufficient even the plaintiff respondents never applied for any material to be considered as additional evidence. Order 41, Rule 24 of the Code of Civil Procedure empowers the Appellate Court to decide the matter finally, but in absence thereof or in absence of any finding that materials not sufficient and appellate court is not in a position to decide the issue involved, no order of Patna High Court MA No.561 of 2008 dt.14-03-2014 6/7 remand can be passed.
10. In the case of Shiv Kumari Devi and Ors. Vs. Birendra Singh and Ors. reported in 2007 (4) PLJR 107 the suit was remanded for retrial on the ground of improper service of notice on defendants, whereas, in the case in hand, there is no such error. As such, this decision does not help the respondents.
11. In the case of Ashwinkumar K. Patel Vs. Upendra J. Patel and Ors. reported in AIR 1999 Supreme Court 1125 in which it has been held that 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. It is better to quote paragraph 7 of the judgment.
"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 Patna High Court MA No.561 of 2008 dt.14-03-2014 7/7 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".
12. Considering the facts and circumstances stated above, it appears that the impugned order is not fit to be sustained. Hence, it is set aside. The court below is directed to decide the appeal on its own merit.
13. In the result, this appeal is allowed.
(Amaresh Kumar Lal, J) V.K. Pandey/-
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