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Judgment
M.V. Muralidaran, J
This second appeal has been preferred against the judgment and decree dated 28.2.2014 passed in Civil Appeal No.2 of 2012 on the file of the District Judge, Manipur East, setting aside the judgment and decree dated 17.12.2011 and remanding the matter to the Civil Judge (Junior Division), Imphal East, for fresh adjudication along with O.S.No.9 of 2005. The legal heir of respondent No.2 viz., Laishram Ongbi Kumu Devi, and respondent No.3 in Civil Appeal No.2 of 2012 are the appellants herein.
For the sake of convenience, the parties are referred to as per their array in the suit.
The plaintiff viz., The Chingmeirong Yengkhoiba Menjor Mamang Makha Leikai Singlup, (hereinafter referred to as "plaintiff Society") through its President and Secretary has filed the suit in O.S.No.10 of 2008 on the File of the Learned Civil Judge, Junior Division, Imphal East to declare that the members of the plaintiff Society have indefeasible right as owner and possessor over the suit property by virtue of their adverse possession for more than the statutory period and to declare that preparation of Jamabandl patta bearing Patta No.385, Dag No.327/651 in the name of Shangkhojang Kuki was done illegally by the employees of the first defendant and that subsequent recording of the names of the said persons Including the defendants 2 to 8 were done without valid sanction of law. In the suit, the plaintiff Society also sought permanent Injunction restraining the defendants, their men and agents from entering into the suit property and also decree for demolition of the structures raised by the defendants 2 to 7 inside the suit property and for costs.
Succinctly put, the facts of the case are as under: The suit property viz., C.S. Dag Nos.646 and 651 measuring together an extent of 0.31 acre was used as cremation ground and burial place by the residents of Chingmeirong Yengkhoiba Menjor Leikai and one Yengkhom Jugolchand was allowed to stay at free of cost at the western most portion of the burial place as watchman. He was also permitted to run there a small business of selling Charcoal to earn his livelihood. The use and enjoyment of the suit property as a cremation ground on the western portion and as a burial place on the eastern portion according to the custom and usage of Manipur Hindus residing there has been open, peaceful and against the whole world since the time immemorial until it is disturbed by the defendants very recently.
Before Cadastral survey carried out under the Manipur Land Revenue Act, the suit property was recorded under Dag Nos.726, 727 and 703 and was given settlement in favour of one Aheibam Kriti Singh of Thangmeiband Yumnam Leikai. Assailing the said settlement, the father of the President of the plaintiff Society viz., Wangkhem Gouramani Singh has field Rev. Appeal Case No.180 of 1953 before the Deputy Commissioner, Manipur and by an order dated 21.06.1955, the Deputy Commissioner set aside the settlement. Aggrieved by the same Kriti Singh filed Civil Misc. (Writ) Application No.34 of 1955 before the Court of Judicial Commissioner, Manipur and the Judicial Commissioner rejected the application vide order dated 21.2.1956. Thereafter, the said Kriti Singh has filed a civil suit being O.S.No.99/1958/42/1959 before the II Subordinate Judge, Manipur and the same was also dismissed vide judgment dated 30.3.1960. Thus, the suit property has been under the exclusive use and enjoyment of the residents of Chingmeirong Yengkhoiba Menjor Leikai as cremation ground and burial place without any interference.
Having considered the use and enjoyment, the Deputy Commissioner (Central), Manipur issued an order dated 22.12.1982 setting apart the eastern portion of the suit property as cremation ground and the said order is still in force. Further, the suit property or any portion thereof has never been settled or allotted to anyone including defendants 2 to 8. There arises necessity to preserve the custom and tradition by maintaining the cremation ground and the burial place by the residents using and occupying the suit property. Under such compulsion, the residents of thingmeirong Yengkhoiba Menjor Leikai established the plaintiff Society and registered the same. The aim and objective of forming of Society are among others to preserve the suit property as the common cremation ground and the burial place of infants who died premature before attaining age of three years and to take up such other social activities that are beneficial to the local people in particular.
While so, during the month of April 2008, the defendants 2 to 8 came to the suit property and started raising structures with some labourers stating that they obtained a prohibitory order under Section 144 Cr.P.C. from the Court of Sub Divisional Magistrate, Porompat, Imphai East, and that no one should come there and object to their act of making construction. Challenging the prohibitory order, Criminal Revision Case No.4 of 2008 has been preferred and by an order dated 04.6.2008, the prohibitory order was set aside by the Court of Sessions Judge, Manipur East. During the period while the prohibitory order was there, defendants 2 to 7 have made some construction inside the suit property and defendants 2 to 5 have also filed O.S.No.9 of 2005 against Jugolchand Singh and obtained ex parte temporary injunction.
According to the plaintiff Society, the ex parte temporary injunction order is not binding on the members of the plaintiff Society. When the members of the plaintiff Society made enquiry, it was found that the name of one Shangkhojang Kuki was first recorded as pattadar in respect of land under Patta No.835, C.S. Dag No.327/651 measuring 0.13 acre of Village No.11, I.E.
There is no record in the Directorate of Settlement and Land Records, Manipur or in the office of the concerned Deputy Commissioner for giving allotment order in his name. If any allotment order is produced by the defendants, it is a fake one and liable to be set aside.
It is averred that the names of defendants 2 to 7 were recorded as pattadars by cancelling the name of defendant No.8 and there was no valid deed of transfer executed under the Act. The alleged transfer was made by Shangkhojang Kuki in favour of Lunkholet Kuki, thereafter in favour of Ram Khulrol Gupta, D.Gombui, Nambunthing Keishang, Asthang Tangkhul and so on in favour of the defendants.
According to the plaintiff Society, the suit property is Government Khas land under the use and occupation of the members of the plaintiff Society and before them by their fore father as their common cremation ground and burial place as stated above from the time immemorial. There was no any allotment order in favour of the persons viz., Lunkholet Kuki, Ram Khulrol Gupta, D.Gombui, Nambunthing Keishang, Asthang Tangkhul and defendants in respect of the suit property or any portion thereof, however, their names were recorded illegally and without any valid documents. At the threat and intimidation of the defendants the said Jugolchand Singh could not stay inside the suit property and the members of the plaintiff Society also could not enjoy the suit property as before. The defendants are preventing the members of the plaintiff Society from entering into the suit property. The illegal acts of the defendants including raising some structure inside the suit property by dispossessing the said Jugolchand Singh and other members of the plaintiff Society from using the suit property as cremation ground and grave yard was done some times in the month of April 2008 when the prohibitory order was clamped down and some times in May 2008 when the defendants openly prevented the members of the plaintiff Society from using the suit property. The defendants have no right and title over the suit property and therefore, they are liable to be restrained from entering the suit property. Hence, the suit.
The defendants have not filed the written statement.
The following issues have been framed by the trial Court for determination of the suit:
Whether the suit land under C.S. Dag No.651 was a burial place to bury body of the infant who die before attaining age of 3 years and the suit land as Dag No.646(P) as cremation ground of the members of the plaintiff society and has been possession of the same since the time immemorial?
Whether the land under C.S. Dag No. 646 and Dag No. 651 measuring together .31 acres (.18 acres + .13 acres) of village No.11 Laipham Siphai, I.E. lie in a row having an approach road in between?
Whether the suit land under Dag No.651 and Dag No.646(P) of village No.11 Laipham Siphai I.E. is part of the old Dag No. 726, 727 and 703 prior to the survey under the Manipur Land Revenue and Land Reforms Act, 1960?
Whether the land under the said old Dag No. 726, 727 and 703 which include the present suit land was allotted to the Aheibam Kriti Singh of Thangmeiband Yumnam Leikai, whether the allotment in favour of the said Kriti Singh was set aside by the then Deputy Commissioner?
Whether sometimes in the month of April 2008, the defendant No.2 to 5 came to the suit land and started raising structures?
Whether the suit land is/was a Government khas land?
Was there any allotment order in favour of any person with regards to the land in Dag No.651 of village No.11 Lapham Siphai I.E.?
Whether the mutation of any person under Dag No.651 is illegal in absence of allotment order?
Is there any cause of action?
To what extent relief shall be granted?
On the side of the plaintiff Society, two witnesses viz., Shri W. Raghuchandra Singh and Shri Yengkhom Dhananjoy Singh were examined and 22 documents were exhibited.
Upon consideration of the oral and documentary evidence, the trial Court arrived at a conclusion that the suit is barred by the proviso to Section 34 of the Specific Relief Act, 1963. The trial Court had also held that the plaintiff has failed to prove the cause of action and thus, dismissed the cult. Aggrieved by the judgment and decree, the plaintiff Society has med CM! Appeal No.2 of 2012 before the Learned District Judge, Manipur East.
By the Judgment dated 28.02.2014, the First Appellate Court set aside the judgment of the trial Court and remanded the suit to the trial Court for fresh adjudication along with O.S.No.9 of 2005. Challenging the same, the legal heir of the first defendant and the second defendant have flied the present Second Appeal.
The Second Appeal was admitted on the substantial question of law raised in this Appeal. The substantial questions of law read thus:
(1) Whether the First Appellate Court can set aside the judgment and decree of the trial Court without discussing the materials on record?
(2) Whether the First Appellate Court Is empowered to issue an order of temporary injunction without any prima facie materials of the case?
(3) Whether para No.5 of the Appellate judgment ls maintainable In law?
Assailing the judgment of remand passed by the First Appellate Court, the learned counsel for the appellants submitted that the judgment of the First Appellate Court is a non-speaking order and no reasoning was assigned while remanding the matter. He would submit the First Appellate Court committed irregularities in passing the order of temporary injunction without discussing the facts of the case. Further, the temporary injunction granted by the First Appellate Court is contrary to the earlier order of temporary injunction dated 16.12.2005 passed by the trial Court. Stating that there is no discussion in the judgment of the First Appellate Court, the learned counsel for the appellants seeks to set aside the judgment of the First Appellate Court and restore the judgment of the trial Court.
The learned counsel for the first respondent/plaintiff submitted that the First Appellate Court having found that the matter requires fresh adjudication, remanded the suit to the trial Court and in the facts and circumstances of the case, there is no illegality in the judgment of the First Appellate Court and prayed for dismissal of the present Second Appeal.
This Court also heard the submission of the learned Government Advocate appearing for the second respondent State.
This Court gave anxious consideration to the arguments advanced by the learned counsel appearing on either side and also perused the materials available on record.
The point that arises for consideration is whether the First Appellate Court was right in remanding the matter to the trial Court for fresh adjudication.
The present Second Appeal is arising out of the judgment and decree passed by the First Appellate Court viz., the Learned District Judge, Manipur East in Civil Appeal No.2 of 2012 filed against the judgment and decree dated 17.12.2011 passed in O.S.No.10 of 2008 on the file of the Civil Judge (Junior Division), Imphal East.
The impugned judgment of the First Appellate Court dated 28.2.2014 reads thus:
"This civil appeal ls preferred by the above named appellant against the judgment and decree dated 17.12.2011 passed by the ld. Civil Judge (Junior Division), Imphal East, Manipur in O.S.No.10 of 2008.
I have heard the Id. counsel for the appellant and also the ld. counsel for the respondents at length. I have also gone through all the available documents in this record.
This civil appeal ls proceeded for disposal and during the stage of argument, both the ld. counsel submit that the similar issue having the same cause title of the suit land is now pending before the ld. Civil Judge (Junior Division), Imphal East being Original Suit No.9 of 2005. In my considered view, it is proper that both the suits should be heard together before the ld. Civil Judge (Junior Division), Imphal East, Manipur.
In view of such circumstances, without expressing any opinion on merit of the suit, it is ordered that the impugned judgment and decree dated 17.12.2011 passed by the Id. Civil Judge (Junior Division), Imphal East, Manipur in O.S. No.10 of 2008 is hereby set aside and remanded for fresh adjudication along with O.S.No.9 of 2005. It is also ordered that the said two original suits should be amalgamated for further proceedings according to law.
In the light of the above reasons, the parties are directed not to alter the nature of the suit land as on today. Any construction/modification on the suit land should not be done without the permission of the Id. Trial Court. The parties also directed to appear before the id. Civil Judge (Junior Division), Imphal East, Manipur on 10th March, 2014.
In the result, the appeal is allowed on the above reasons.
Send the case record of the Id. Civil Judge (Junior Division), Imphal East, Manipur in O.S. No.10 of 2008 so as to reach on or before 10.03.2014.
Announced in open Court."
On a perusal of the impugned judgment, it is clear that while setting aside the judgment of the trial Court and also remanding the matter to the trial Court, the First Appellate Court has not assigned any reason. The First Appellate Court has right to set aside the judgment of the trial Court, however, it should only do so after analysing the evidence and the documents and also after formulating points for consideration.
Order 41 of the Code of Civil Procedure, 1908, provides for appeals from original decrees. The Code empowers the Appellate Court to order remand in three situations. These three situations are covered by Order 41, Rule 23 C.P.C. Order 41, Rules 23, 23A and 25 C.P.C. read thus:
"23. Remand of case by Appellate Court - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
23A. Remand in other Cases -
Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.
Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from -
Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time."
In M/s. Sekaran Real Estates, a Partnership firm, by Managing Partner K. Chandrasekaran vs. Punjab National Bank, Mylapore Branch, Mylapore, Madras-4, by its Manager, reported in 2000 (I) CTC 613, it has been held as follows:
"4. It is clear from the above decisions as well as the provisions contained in Order 41, Rules 23 to 29, C.P.C. that duty is cast on the appellate Court to find that the decree of the trial court should be set aside. Even the fact that there are some defects or infirmities in the reasoning of the trial court is not a ground for the appellate court to remand the same to the trial court. The appellate Court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the appellate Court can remand the suit for fresh trial. A reading of the judgment of the appellate Court would show that it has not at all considered the judgment of the trial court nor pointed out infirmity or defect in the conclusion. Further, the learned appellate Judge has not borne in mind any of the principles mentioned above. A careful scrutiny of the judgment also shows that he never felt that the judgment of the trial court must be set aside or reversed. After allowing the amendment petition, the appellate court has simply directed the trial court to try the matter once again, after affording further opportunity to the parties, the directions contained in the order of remand are vague and too general in character. The fact that the lower appellate Court has not considered the reasoning or merits of the decree of the trial court has not been disputed by the learned counsel for the respondent-Bank. "
In Kannathal and four others vs. Arulmighu Kanniammal Karuppasamy Thirukoil, Pothanur Chettipalayam, Coimbatore, rep. by its Executive Officer and another, reported in 2007 (2) CTC 49, a learned Single Judge of Madras High Court held as follows:
"15. It is also settled law that if the Issues arising in the suit could be decided on the evidence available on record, the lower Appellate Court itself should decide the case on merits without unnecessarily ordering remand. A perusal of the pleadings in the case shows that all the necessary pleadings are available on record. Even If the Lower Appellate Court was of the opinion that it was necessary to give an opportunity to the plaintiff to amend the pleadings, that opportunity could have been given in the First Appellate Court itself and for that purpose, the remand is not needed.
......
In the light of the law laid down by the Apex Court in the decisions reported in Ishwardas vs. State of Madhya Pradesh and others, AIR 1979 SC 55 and P. Purusottam Reddy and another vs. Pratap Steels Limited, 2002 (2) ctc 686, this Court is of the considered view that the Lower Appellate Court has committed an error of law in remanding the matter only for the purpose of affording an opportunity to the plaintiff to amend the pleadings and to adduce additional evidence. As laid down by the Apex Court it is not proper for the Appellate Court to remand the case to enable the parties to make good their lapse."
Thus, from the aforesaid decisions, it is clear that order of remand should not be passed as a matter of course and without giving a finding as to how the decree and judgment of the trial court is perverse, illegal, especially, after amendment to Order 41 Rule 23A of CPC. The First Appellate Court has got every right to take further evidence, or appoint an advocate commissioner, if so necessary and there is no necessity for remanding the matter to the trial Court as the lower Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law.
When the provisions of Order 41, Rules 23 to 29 of CPC are not a bar to take further evidence or to appoint a Commissioner, if so necessary, and to try the appeal, this Court is of the view that there is no necessity to remand the matter to the trial Court by the First Appellate Court and the First Appellate Court itself can try the matter and dispose of the appeal on merits and in accordance with law.
In the present case, the First Appellate Court remanded the matter to the trial Court for fresh adjudication summarily on the ground that connected suit being O.S.No.9 of 2005 is pending. The filing of the suit O.S.No.9 of 2005 against Jugolchand Sing and the plaintiff Society is not in serious dispute. However, that itself is not a ground to remand the appeal to the trial Court by the First Appellate Court.
On a perusal of the impugned judgment of the First Appellate Court, it is seen that the First Appellate Court just recorded that both the learned counsel submit that similar issue having the same cause title of the suit land is now pending before the learned Civil Judge (Junior Division), Imphal East. It appears that the learned counsel appearing on either side have not sought remand of the matter, nor sought joint trial. In such circumstances, it is the bounden duty of the First Appellate Court to raise a point and answer the same. On the other hand, the First Appellate Court has simply came to the view that it is proper both the suits should be heard together before learned Civil Judge. Such an approach adopted by the First Appellate Court is not acceptable.
Considering the scope of Section 96 of the Code of Civil Procedure, 1908, in Jagannath v. Arulappa and another, reported in (2005) 12 SCC 303, the Hon'ble Supreme Court observed as follows:
"2. A court of first appeal can re-appreciate the entire evidence and come to a different conclusion ........."
In Union of India v. K.V. Lakshman and others, reported in AIR 2016 SC 3139, the Hon'ble Supreme Court held:
"22. It is a settled principle of law that a right to file first appeal against the decree under Section 96 0f the Code is a valuable legal right of the litigant. The jurisdiction of the first appellate Court while hearing the first appeal is very wide like that of the Trial Court and it is open to the appellant to attack a// findings of fact or/and of law in first appeal. It is the duty of the first appellate Court to appreciate the entire evidence and may come to a conclusion different from that of the Trial Court. "
In B.V. Nagesh and another v. H.V.Sreenivasa Murthy, reported in (2010) 13 SCC 530, the Hon'ble Supreme Court reiterated the principle as under:
"3. How the regular first appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled."
It is settled that the First Appellate Court has jurisdiction to reverse or affirm the Findings of the trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the First Appellate Court must reflect its conscious application of mind and record Findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the Court. Sitting as a Court of first appeal, it was the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties before.
As stated supra, the first appeal arises out of the judgment and decree passed in O.S.No.10 of 2008. The said suit was filed by the plaintiff Society for declaration and for injunction. Since the defendants 2 to 5 have not filed the written statement within the stipulated time, their petition seeking to condone the delay in filing the written statement was rejected by the trial Court.
Thus, there is no written statement in O.S.No.10 of 2008 filed by the defendants or contesting defendants. As against the dismissal of petition to condone the delay in filing the written statement, the defendants 2 to 5 have preferred a revision. Pending revision, the trial Court passed judgment in the suit in O.S.No.10 of 2008. The trial Court framed 10 issues and had considered the suit on merits and finally dismissed the same. Challenging the judgment of the trial Court, the plaintiff Society has filed the first appeal questioning the judgment and decree passed by the trial Court. When that being the factual position, the First Appellate Court cannot simply remand the appeal to the trial Court for fresh adjudication that too along with O.S.No.9 of 2005.
Order 41, Rule 23 CPC gives ample power to the First Appellate Court to decide all issues, including appointment of a Commissioner for local inspection, secure finding from the trial Court. Even if certain mistakes crept in the order of the trial Court, the same can be rectified by the First Appellate Court itself, unless there are very compelling circumstances to make an order of remand. An order of remand should not be taken as a matter of course and the power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the First Appellate Court itself, when the commissions and omissions made by the trial Court could be corrected by the First Appellate Court.
In the light of the above discussion coupled with the mandate provided under Order 41 Rules 23, 23A and 27, the First Appellate Court itself can decide the matter. In the case on hand, the First Appellate Court has not given any valid grounds in setting aside the judgment of the trial Court. Further, the judgment of the First Appellate Court is not a speaking one and, therefore, it would be appropriate to remand this matter to the First Appellate Court to decide the appeal filed by the plaintiff Society on merits and in accordance with law. Thus, the First Appellate Court erred in remanding the matter to the trial Court.
It is pertinent to point out that while remanding the appeal, the First Appellate Court directed the parties not to alter the nature of the suit property as on 28.02.2014. It was also observed that any construction/modification on the suit property should not be done without the permission of the trial Court. The aforesaid observation and/or direction of the First Appellate Court is contrary to the earlier order of temporary injunction dated 16.12.2005 passed by the Learned Civil Judge (Junior Division), Imphal East in Judl. Misc. Case No.49 of 2005 and Judl. Misc. Case No.121 of 2005 in O.S.No.9 of 2005. By order dated 11.01.2008, the said order has been upheld by the Learned Additional District Judge, Manipur East in Misc. Civil Appeal No.1 of 2006. These aspects have not been considered by the First Appellate Court while remanding the matter. Therefore, this Court is of the view that the First Appellate Court ought not to have passed such an order.
On going through the impugned judgment, this Court feels that the learned District Judge has failed to discharge the obligation placed on it as a First Appellate Court. In my view, the judgment under appeal is cryptic and none of the relevant aspects have been noticed. The appeal has been decided in an unsatisfactory manner. This Court's careful perusal of the judgment in the first appeal shows that it falls short of considerations which are expected from the Court of first appeal. Accordingly, without going into the merits of the claim of both parties, the impugned judgment and decree of the learned District Judge is liable to be set aside and remand the regular First appeal to the learned District Judge, Manipur for its fresh disposal in accordance with law. The substantial questions of laws are, therefore, answered accordingly.
In the result,
a) this RSA No. 1 of 2014 is allowed.
b) the judgment and decree dated 28.2.2014 passed by the learned District Judge, Manipur East in Civil Appeal No.2 of 2012 arising out of the judgment dated 17.12.2011 made in O.S.No.10 of 2008 is set aside and the matter is remanded to the learned District Judge, Manipur East for fresh consideration;
c) the learned District Judge, Manipur East is directed to hear the appeal afresh after affording sufficient opportunity to all concerned, including detailed analysis of the evidence in accordance with law and pass a reasoned/speaking judgment;
d) the said exercise shall be done by the learned District Judge, Imphal East, within a period of three months from the date of receipt of a copy of this judgment on day-to-day basis. No costs.