Ram Lakhan and Others vs Board of Revenue and Others

Sudhir Narain, J.—This writ petition is directed against order of Board of Revenue, Respondent No. 1 remanding the case to the trial court, passed on 1.3.1996.

The facts of the case in brief are that Dhruraj, Respondent No. 5, filed suit u/s 229B of U.P. Zamindari and Land Reforms Act (in short referred to as the Act) for declaration that he is Bhumidhar of plots shown in Schedule A-B of the plaint and co-Bhumidhar with Defendant No. 1, Ram Dayal, of the plots shown in Schedule C of the plaint. His version was that Sewakee was tenure-holder of the land in dispute. He had two sons, namely, Ram Dayal and Ram Dass. Ram Das had three daughters namely. Ram Dulari, Ramna and Jhamna. Ram Dass adopted Dhruraj, Respondent No. 5, grandson of Smt. Ram Dulari. He also executed an adoption deed on 15.10.1972 Dhruraj is entitled to all the rights and title of Ram Dass. The suit was contested by Ram Dayal. It was denied that Ram Dass had adopted Dhruraj. The trial court decreed the suit on 30.11.1981. Ram Dayal, Defendant filed appeal before the Commissioner of the Division concerned. The Additional Commissioner concerned allowed the appeal on 28.12.1983 and dismissed the suit. Plaintiff-Respondent No. 5 filed second appeal before the Board of Revenue. During the pendency of the appeal Respondent No. 5 filed an application on 15.3.1989 to admit certain documents as additional evidence. Respondent No. 1 by order dated 22.2.1990 allowed the application. The Petitioners filed Civil Misc. Writ Petition No. 20465 of 1990 against the said order. This Court dismissed the said writ petition on 10.11.1990 with direction to the Board of Revenue to afford opportunity to the Defendants to file documentary evidence in rebuttal, Respondent No. 5 filed another application dated 24.7.1991 for additional evidence along with affidavit praying that certificate of Medical Officer Incharge, Balrampur Hospital, Lucknow showing the death of Ram Dass on 14.1.1973 be accepted as additional evidence. Respondent No. 1 allowed the said application on 1.5.1992, on the ground that one of the dispute was regarding to the date of death of Ram Dass and the additional evidence sought to be adduced by Respondent No. 5 was necessary for Just decision of the case. On 1.3.1996, Respondent No. 1 set aside the judgment of the trial court in appeal and remanded the case to trial court after framing new issues and permitting the parties concerned to lead additional evidence. The Petitioners filed application for review of the said order but it has been rejected by Respondent No. 1 on 28.9.1996.

Shri Triveni Shanker, learned counsel for the Petitioners urged that Respondent No. 1 has remanded the matter permitting Respondent No. 5 to lead evidence before the trial court. The Board of Revenue passed the order dated 1.5.1992 with the following observations:

The question of the death of Ram Dass is to be determined. A request has been made to allow the Appellant to get the papers proved by sending the matter to the trial court. I do not think it necessary to prolong the matter whatever is to be done it should be done here. The Appellant is directed to get his witness summoned here for 16.7.1992.

It is urged that subsequently, the Board of Revenue passed order on 1st March, 1996 permitting Respondent No. 5 to adduce evidence before the trial court without taking into consideration earlier order passed on 1.5.1992.

It is urged by the learned counsel for the Petitioners that the Court had earlier permitted Respondent No. 5 to lead evidence before it, it cannot subsequently take different view and remand the matter for the purpose of permitting the parties to lead evidence before the trial court. The learned counsel for the Petitioners placed reliance upon a decision in case of Mannoo v. Board of Revenue, U.P. and Ors. 1974 RD 233, wherein it was held that principle of res Judicata applies also as between two stages in the same litigation to the extent that a Court, whether the trial court or a higher court, having at an earlier stage decided a matter in one way, will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings.

The reliance was also placed upon the decision in the case of Pullu and Ors. v. Parloki and Anr. 1996 ACJ 863, wherein it was held that the Deputy Director of Consolidation has to abide by the orders of the constituted regular courts whether they may be civil courts or revenue courts and as it failed to follow earlier decisions, the order of remand passed by it was set aside.

The principle of res Judicata is applicable only when the matter is decided at one stage of the suit. The said decision is binding at subsequent stage of the suit on the same court. The appellate court, however, in a procedural matter if takes a decision that it will permit the parties to lead evidence in appeal itself but later on considering various aspects of the matter, remands the matter permitting the parties to lead evidence before the trial court, it cannot be held that there was no justification in remanding the case. Respondent No. 1 while admitting the document filed by Plaintiff-Appellant permitted him to prove such document in appeal itself. Later on, considering the facts and various aspects of the matter not only permitted contesting Respondent to adduce the evidence but also to other parties concerned and thought it proper that such evidence be led before the trial court. Such view taken subsequently, does not amount that it itself decided the matter on any question of law or on fact contrary to the decision earlier taken by it.

Order XLI, Rule 28 of Code of Civil Procedure, 1908, provides that wherever additional evidence is allowed to be produced, the appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred or any other subordinate Court, to take such evidence and to send it when taken to the appellate Court. The appellate court was thus empowered to remand the matter to the trial court of taking additional evidence.

Second submission of the learned counsel for the Petitioners is that Respondent No. 1, in the facts and circumstances of the case, should not have remanded the case. He has placed reliance upon the decision, Gangadharan Vs. Janardhana Mallan and others, , wherein Hon''ble Supreme Court held that in a case where alienation by Hindu father is challenged after long lapse of time and the appellate Court had recorded clear finding as to existence of legal necessity, it would not be proper to remand the matter to prove the legal necessity having regard to long lapse of time as nothing more could be expected from the purchaser to prove legal necessity.

In Fateh Bahadur v. Ram Adhar and Ors. 1993 RD 475, it was held that if there is sufficient evidence to enable the court to arrive at a decision, the appellate court should decide the points in dispute and record the finding instead of remanding the matter to the trial court.

The appellate court has power to remand, Clause (b) of Sub-section (1) of Section 107 of CPC empowers the appellate court to remahd a case. Order XLI, Rule 23, CPC as amended by the High Court, confers power on the appellate court to remand the case. The case can also be remanded when the court under Order XLI, Rule 28 permits the parties to lead evidence. The power has to be exercised on certain basic legal principles. This depends upon the facts of each case and legal principles involved therein.

In this case, the dispute is as to whether Respondent No. 5 is adopted son of Ram Das. Plaintiff Respondent alleged that adoption had taken place on 9.10.1972 and Ram Das had executed the adoption deed on 15.10.1972. Petitioners alleged that Ram Das had died prior to 9.10.1972. The version of the Plaintiff was that he died on 14.1.1973. Documentary additional evidence was produced before the appellate court and those documents required to be proved in accordance with law. The Petitioners were also entitled to lead evidence. Considering the facts, Respondent No. 1 remanded the matter. The remand order does not suffer from any illegality.

In view of above, there is no merit in this writ petition and it is accordingly dismissed.