Ram Sagar Singh vs Baleshwar Singh and Others

Shailesh Kumar Sinha, J.—The appeal is directed against the order dated 11th of March, 2010 passed by the District Judge, Vaishali at Hajipur in Title Appeal No. 23 of 2008, whereby the judgment and decree in Title Suit No. 132 of 1997/251/2008 was set aside and the matter was remanded to the trial court for hearing and passing judgment afresh. The appellant herein-intervenor of the said title suit has preferred the present appeal. Mr Siddhartha Prasad, learned counsel appears for the appellant, Mr. Pankaj Kumar, learned Assistant Counsel to Government Advocate No. 8 appears for the State and Mr Vijay Kumar, learned counsel appears for respondents no. 6 to 9. However, no one appears on behalf of respondents no. 1, 2 and 3.

Shortly stated, the facts of the case are that the land appertaining to old khesra No. 725, Thana No. 321, measuring 1 acre 58 decimals, situate in Anchal-Lalganj, District-Vaishali was recorded in the name of the ancestor of the plaintiffs. Further case of the plaintiffs is that from the aforesaid old khesra No. 725, Revisional Survey Plot No. 1351 and 1350 were carved out and, as such, the above R.S.P. No. 1351 and 1350 ought to have been recorded in the survey khatiyan in favour of the plaintiffs. Plaintiffs'' further case is that the revisional survey khatiyan of the aforesaid land have been wrongly mentioned as Gairmazarua Sarv-Sadharan. The plaintiffs as such sought declaration of their title and possession over the aforesaid land.

The intervenor appearing in the said suit claimed that the R.S.P. No. 1351 and 1350 are not carved out from old khesra no. 725 and as such, the plaintiffs'' suit for declaration of their title and possession deserves to be dismissed.

The trial court upon considering the evidence adduced by the parties, including the report of the Pleader Commissioner (Ext. 6), dismissed the suit.

The plaintiffs being aggrieved by such dismissal of the suit assailed the judgment and decree of the trial court by filing regular appeal, vide Title Appeal No. 23 of 2008. The appellate court upon detailed consideration, however, remanded the matter after setting aside the judgment and decree of the trial court by holding that the issue was not properly framed by the trial court and in absence of report of the Advocate Commissioner, no finding in the suit could have been given.

Learned counsel appearing for the appellant contends that the appellate court has committed serious error in remanding the matter to the trial court primarily on the ground that the plaintiffs ought to have been given an opportunity for fresh appointment of Advocate Commissioner and to submit a report as to whether R.S.P. No. 1351 and 1350 are carved out from old khesra No. 725. It is submitted that as a matter of fact, the Advocate Commissioner was already appointed, who had given his report, vide Ext. 6, stating therein that R.S. Plot no. 1350 and 1351 were not carved out from old khesra no. 725. Said Survey knowing Pleader Commissioner was examined as P.W. 8. It is further contended that the plaintiffs after submission of the report of the Pleader Commissioner made attempt twice for appointment of fresh Advocate Commissioner, which was not allowed by the trial court, against which the plaintiffs preferred civil revision application, vide Civil Revision No. 1519 of 2004, which was dismissed as withdrawn by order dated 11.11.2004 and later, for the same cause another civil revision application was filed vide Civil Revision No. 1115 of 2004, which was dismissed by order dated 24.1.2005 and by dismissing the said civil revision application, this Court observed that the plaintiffs had already examined survey knowing Pleader Commissioner and, therefore, there is no necessity for the court to appoint another survey knowing Pleader Commissioner to repeat the evidence which was already available on record. Notwithstanding the above, it is further submitted that the evidence was already available before the appellate court and as such, the appeal ought to have been decided on merit instead of remand causing further delay in adjudicating the disputes between the parties.

Learned counsel appearing for the State as also learned counsel appearing for respondents no. 6 to 9 is not in a position to refute the submissions advanced on behalf of the appellant.

On considering the submissions of the parties, it would appear that the appellate court remanded the matter primarily on the ground that the court below should had allowed the appointment of the survey knowing Pleader Commissioner since, according to the appellate court, the fact as to whether the lands mentioned in Schedule 1 of the plaint were carved out from cadasteral survey plot no. 725 or not is required to be ascertain. It would appear that the trial court upon considering the evidence available on the record, including the report of the Pleader Commissioner, vide Ext. 6, decided the suit and as such, the appellate court, in my opinion, ought to have considered the evidence available on the record and decided the appeal this way or that way instead of remanding the matter. It would further appear that the plaintiffs as also the contesting defendants were aware of their respective cases and they led their evidences on all the issues and as such, absence of framing of any particular issue is of no legal consequence as the trial court considered the respective cases of the parties as also their respective evidences on the record. It is well settled that remand is not permissible in law in the order to cure the lacuna in the evidence of any party. A party having an opportunity to lead evidence fails to adduce evidence has to suffer from his own inaction and the remand cannot be allowed to fill up the inaction. A Reference in this connection may be made to the decision of the Supreme Court in the case of Girja Kumar(1) v. State of Himachal Pradesh, reported in (2007) 14 SCC 93. It is also relevant to quote the provisions of section 99 of the Code of Civil Procedure, which runs as follows :

No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.-No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any mis-joinder 1[or non-joinder] of parties or causes of action or any error, defect or irregularity in proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court :

1[Provided that nothing in this section shall apply to non-joinder of a necessary party].

For the reasons and the discussions as made above, the order dated 11th of March, 2010 under appeal is set aside. The matter is remitted back to the appellate court for finally deciding the appeal on merits on the basis of the evidence available on the record expeditiously, preferably within a period of six months on receipt of the lower court records.

In the result, the appeal is allowed with the above observations/directions. No costs. Let the lower court record be sent down to the court below without delay.