Sheo Datt vs Mst. Sarbati and others

C.G. Suri, J.—This second appeal has been filed by the Defendants against the order of the lower appellate Court remanding the case to the trial court for fresh decision after framing an additional issue under Order 41, Rule 23A, CPC Code. The appeal was shown to have been disposed of by the lower appellate Court and the judgment and decree of the trial Court were declared to have been set aside on more than half a dozen issues without commenting on all the points in controversy.

Sheo Datt, Appellant No. 1, died during the pendency of this second appeal. His son and two daughters have applied within time for being brought on record as legal representatives. The Respondents'' counsel has no objection to the substitution of their names in place of the deceased Appellant No. 1. Necessary corrections may be made by the office in the title of the case. This disposes of Civil Miscellaneous No 614 of 1974(sic) filed by the legal representatives of Sheo Datt deceased, Appellant No. 1.

The correctness of the pedigree table given in the plaint and in the judgments of the two Courts below has not been challenged and it is also the common case of the parties that the land has come down to them from the common ancestor, Jai Kishan, Jai Kishan had five sons but three of them had died issueless. The Plaintiffs and the proforma Defendant No. 19 are the descendants of Nanak son of Jai Kishan while Defendants Nos. 1-18 represent the other family branch starting with Nanak''s brother Baldev son of Jai Kishan. If the property had devolved under the ordinary law of inheritance or succession, the two family branches would have jointly succeeded to a half share each in the land in dispute left to them by the common ancestor Jai Kishan and the entries in the revenue records for a number of years upto 1919 A. D. were consistent with this devolution according to the ordinary law of in heritance or succession. The two family branches were being shown as joint owners in equal shares in the land in dispute. A mutation order, copy Exhibit PA/8, was however entered and attested in Samvat 1975-76 B. K. corresponding to the year 1919 A. D. in the presence of Ram Narain Lambardar representing the family branch of the Plaintiffs to the effect that the share of the Plaintiffs'' family branch in the ancestral land had been reduced by agreement in writing to 2/5th while the stare of the family branch of the Defendant-Appellants had been increased to 3/5ths. Consequential changes were made in the records of rights but the two family branches continued to be in joint possession of the ancestral land which is the subject-matter of the present suit.

There was consolidation of holdings in the village in the year 1960-61. The case of the Plaintiff Respondents is that they first came to know of change of entries in revenue records about the reduction of their share in the ancestral had during the consolidation proceedings and that the mutation order had been got attested by the Defendant-Appellants family branch in collusion with the Revenue officers without knowledge to any member of the Plaintiffs'' family branch. This suit was therefore filed by the Plaintiff-Respondents in September, 1962, for a declaration that they still continue to own a half share in the ancestral land in dispute according to the pedigree table.

The pleadings of the parties had necessitated the framing of nine issues and pleas of estoppel, limitation, adverse possession, abandonment of their rights by the Plaintiffs and the like had been raised by the Defendant-Appellants. A number of preliminary issues raised by the Defendants were decided against them but the trial Court dismissed the suit on the findings, inter alia, that a change in the entries had been brought about in Samvat 1976 B. K. on the basis of mutation order No. 70, copy Exhibit PA/8, and that an agreement in writing had been duly executed between the two family branches. Ram Narain who belonged to the family branch of the Plaintiffs and who had been impleaded as a proforma Defendant No 19 had died during the pendency of the suit. According to the mutation order, duly attested, Ram Narain who was the eldest son of Gopal had thumbmarked the Patwari''s report in the relevant entry in the register of mutations. Gopal was the only son of Nanak with whom the Plaintiffs'' family branch had started. Ram Narain son of Gopal has also been described as a lambardar in the order of mutation. The trial Court had also found that this written agreement which was the basis of the mutation order leading to a change in the entries in the records of rights had been acted upon by the parties for more than 40 years and that the Plaintiffs were estopped from challenging the correctness of these entries about the change of shares of the two family branches. The suit was accordingly dismissed by the trial Court.

The Plaintiff Respondents had filed an appeal and the Additional District Judge at Gurgaon has remanded the case after framing an additional issue. This second appeal has been filed against that remand order. The additional issue framed by the lower appellate Court specifically covers the point in controversy whether there was any agreement in writing as mentioned in the mutation order which brought about a change in the entries in the year 1919 A. D. It may appear to have been represented before the lower appellate Court by both the parties that this writing was still in existence and that the parties had been able to secure certified copies of that writing. Under the circumstances, the lower appellate Court may appear to have been fully justified in framing a specific issue on the point and giving the parties an opportunity of proving the very basis of the mutation order which had brought about the disputed change in the entries about the respective shares of the two family branches. In spite of the easy availability of the agreement or its certified copies, neither party had cared to lead primary or secondary evidence of the writing which could have clinched the main point in controversy.

The learned Counsel for the Appellants, Shri Sarin, then argued that there was no justification for the reopening of the whole case by a remand under Rule 23 A of Order 41 of the Code of Civil Procedure. Shri Sarin argues on the basis of a Division Bench ruling of the Lahore High Court in AIR 1942 201 (Lahore) ., that where the appellate Court finds that the trial court had not framed proper issues and had wrongly exculded certatin documentary evidence it should frame additional issues and remand the case under Rule 25 and that the remand of the case under Rule 23A of Order 41 would be improper. The setting aside of the entire judgment and decree of the trial Court on all the issues would entail expense and botheration to parties and would otherwise lead to a delay in the disposal of the proceedings. On almost similar facts the appeal against a remind order was accepted and the case was remitted to the lower appellate Court with the direction that the appeal should be restored to its original number and that the remand of the case should be taken to have been made under Rule 25 and that the first appeal should be decided by the lower appellate Court on the basis of evidence produced before and the finding recorded by the trial Court on the additional issue framed by the lower appellate Court. A similar view has recently been taken by a Single Bench of this Court in an unreported decision in S. A. O. No. 59 of 1969 (Nand Ram v. Ganga Jal and others) S. A. O. No. 59 of 1969. decided on 2nd September, 1969. Certain submissions made by the Respondents had prevailed with the Court of first appeal who had framed two additional issues and has remanded the case for re-trial on all the issues under Rule 23A of Order 41, CPC Code. It was observed by Shamsher Bahadur J. who disposed of the appeal against the remand order that the retrial was not necessary and could have been obviated by resorting to the provisions of Rule 25. The lower appellate Court was said to have acted manifestly under Rule 25 but by inadvertence to have declared the remand order to be under Rule 23A. The action of the lower appellate Court in framing additional issues was maintained but the remand order was amended with the direction that the lower appellate Court should decide the appeal in the light of the report made by the trial Court on the additional issues after recording fresh evidence of the parties.

In the present case also the additional issue framed by the learned Court of first appeal and the fresh evidence thereon may appear to be necessary for a proper decision of the suit but the whole trial need not have been thrown open and the real purpose could have been achieved by remanding the case under Rule 25 instead of under Rule 23A of Order 41, CPC Code. I can very well understand the desire of a Court to show a case as disposed of for statistical purposes but the appellate Courts have a certain responsibility in the matter of trying to spare the parties all unnecessary or avoidable harassment, delay, expense and multiplicity of proceedings and where a remand order can limit the scope of the inquiry by the lower, Court, an indiscriminate re-opening of the whole case on all the points in issue would clearly be uncalled for.

For reasons given above, the appeal is partly accepted to this extent that the remand order is modified and it should be taken to have been made to the trial Court under Rule 25 and not under Rule 23A of Order 41 of the Code of Civil Procedure. The appeal should be shown to be pending on the file of the lower appellate Court at its original number. The trial Court should examine the evidence of the parties on the additional issue framed by the lower appellate Court in its remand order dated 11th March 1968. The trial Court should then record a finding on this fresh issue in the light of the additional evidence examined before it by the parties and then return the records of the proceeding to the lower appellate Court who should dispose of the appeal in the light of the report and fresh evidence recorded by the trial Court.

Parties are directed to appear before the trial Court on 25th May, 1970 for further proceedings in the light of my observations made above. A copy of this order may also be sent to the lower appellate Court for information and necessary action. The two Courts below should expedite the proceedings. Costs to abide the final event.