Prithwi Chand Lal Choudhury vs Sm. Oramba Sundari Dasi

Reuben, J.—This petition by the defendant in Title Suit No. 95 of 1913 in the Court of the Second Munsif, Kishangunj, is directed against an appellate order of the Additional Subordinate Judge, Purnea, setting aside the decree of the Munsif and remanding the case for rehearing after taking further evidence.

The suit was one for a declaration of title and recovery of possession of 4 kathas 1 dhur of land, which the plaintiff claims as purchased by him from one Harbans Misser. According to the plaintiff, Harbans originally had 11 kathas of land and took settlement from the defendant-petitioner of 4 kathas 1 dhur, the land in dispute, and under a kobala transferred to the plaintiff the entire area of 15 kathas 1 dhur. The plain-tiff is in possession of 11 kathas and has brought the suit to recover 4 kathas 1 dhur of which the defendant is in wrongful possession. The defence admit having made a settlement of 4 kathas 1 dhur in favour of Harbans Misser in December 1915. They deny, however, the identity of the land settled in December 1915 with the land in suit. According to them, Harbans originally had only 6 kathas, which, along with the 4 kathas 1 dhur subsequently settled with him, he transferred by the sale deed to the plaintiff. Ac-cording to the defence, therefore, the 11 kathas of which the plaintiff admits possession, include 4 kathas 1 dhur settled with Harbans in December 1915.

There has been no cadastral survey in the village, in which the land lies. No commission was taken out by either party for a survey and identification of the land in suit by actual measurement on the spot, The Munsif, on a consideration of the boundaries stated in the plaint and in the kabuliyat, by which the settlement was made in 1915, and of the configuration of the land, and by reference to Ex. A, a document which is said to show that the plaintiff''s husband filed an application to take settlement of the suit land, and to certain other evidence, came to the definite conclusion that the land in suit is not the land to which the kabuliat of December 1915 relates. Hence, he dismissed the suit.

The Subordinate Judge having stated the facts of the case, formulated the only point in dispute as to the question whether the suit land is the same 4 kathas 1 dhur of land, which was settled with Harbans and purchased by the appellant. He referred to a patta (Ex. 3a) signed by the defendant, in which certain land in the vicinity is referred to as khasra No. 312, Khata No. 141, and remarked that this shows that there has been a private survey of the land, and that it was contended on behalf of the appellant that the defendant had not produced the measurement papers. The relevance of this remark is difficult to see, as it would appear that the onus of proving the identity of the land was on the plaintiff, who is admittedly not in possession and is seeking to recover the land, and it is not alleged that she called on the defendant to produce these papers.

He then goes on:

Further the registered kobala executed by one Budhan Rai in favour of Aghorenath in the year 1928, shows Harbans''s land to the south of the land sold under the kobala. On consideration of the evidence in record, I myself also find it difficult to arrive at a correct conclusion about the identity of the land.

Having said this, he proceeded to accede to the suggestion of the plaintiff-appellant that, in the circumstances of the case, a commissioner be appointed for local investigation and measurement of the area, and drawing up a map of the vicinity with reference to the "admitted land", In justifying the order, he points out that the Munsif himself remarked that it was unfortunate that the plaintiff had not got the entire area measured by a survey-knowing pleader commissioner, and, further, that the plaintiff, by filing a petition to the Court itself to make a local inspection of the land, had drawn the Court''s attention "to the difficulty in suit." On these grounds he made a remand stating that it was for the "ends of justice".

The case appears to me to be on all fours with Mani Mohan Mandal v. Ramratan Mandal AIR 1917 Cal 657, where the remand was made in favour of a plaintiff, who was a poor man unable to afford the expenses of a commission for local investigation. The remand was set aside by the High Court, which directed a rehearing of the appeal in accordance with law.

Mr. De, for the opposite party, has urged that the petition in revision is incompetent on the ground that the Subordinate Judge had jurisdiction to make the remand. Undoubtedly,) an appellate Court has a jurisdiction u/s 151, Civil P.C., to make an order of remand in circumstances not covered by Order 41, Rule 23 and 25. Such remand, however, must not be contrary to express provisions of the Code. The provision to which I particularly refer in this case, is Order 41, Rule 27, which prescribes the powers of an appellate Court to allow the production of additional evidence in appeal. Mr. De urges that the order comes within Clause (o) of this rule as amended by the Patna High Court; that is to say, where the appellate Court requires any document to be produced or any witness to be examined "to enable it to pronounce judgment or for any other substantial cause.

In AIR 1931 143 (Privy Council) , their Lordships of the Judicial Committee explained that the requirement as to further evidence should be the requirement of the Court on an examination of the evidence in the case, and that this rule was not intended to allow a litigant, who has been unsuccessful in the lower Court, to patch up the weak parts of his case and fill up omissions in the Court of appeal. I have indicated at the commencement of my order some of the materials, on which the Munsif has come to his definite conclusion that the suit land is not the land which was settled by the kabuliat of December 1915. In the summary order passed by the Subordinate Judge, there is nothing to indicate that the material, upon which the Munsif came to his conclusion, was considered at all by the Subordinate Judge. Further the requirement should be in order "to enable the Court to pronounce judgment". Can it be said that, in order to pronounce judgment, it was necessary to arrive at a "correct conclusion about the identity of the land"? Would it not be sufficient, even without being able definitely to identify the land settled by the kabuliat, if it was possible to say that the suit land was not covered by the kabuliat, that is to say, the conclusion arrived at by the Munsif I will add that it is, also, not sufficient to say that it is "difficult" to arrive at a correct conclusion. The mere fact that it is "difficult" to decide the matter on the evidence recorded does not excuse a Court from making the attempt. The requirements of Order 41, Rule 27, Clause (c), contemplate something more than a mere difficulty in coming to a decision.

Another case in point is Gorakh Prasad Srivastava v. Hari Shankar Sardar AIR 1984 Pat 284 , decided by James J., the principles laid down by whom were approved by a Division Bench of this Court in Rampat Sahu Vs. Bhajju Sahu and Another, His Lordship observed:

The mere fact that a plaintiff might have been better advised to apply for a commission at the trial of the suit would not in itself warrant the issuing of a commission by the appellate Court.

and again,

Where the appellate Court ought not to give facilities for adducing further evidence, the fact that the Court desires to do so cannot give it jurisdiction to set aside the decree of the Court below and remand the case for re-trial.

As regards the suggestion that the remand was made in the ends of justice, I would ask the question, is it just that a party having had an opportunity of adducing evidence in the case and having, with open eyes, failed to adduce that evidence, should be given a second chance of adducing it? The policy of the law is that, once a matter has been fairly tried between the parties it should not, except in special circumstances, be re-opened and re-tried.

On the above grounds, I would allow this petition, set aside the order of the Subordinate Judge, and remand the appeal for re-hearing according to law. The hearing fee is assessed at one gold mohur.

I do not wish my order to be understood to restrict in any way the power of the First Appellate Court, if it finds it necessary to exercise its powers under Order 41, Rule 27, doing so according to law.