Mahendra Choudhary and Others vs Indrasan Devi @ Rudrasan Devi and Others

S.N. Pathak, J.—This miscellaneous appeal is directed against the judgment dated 1.8.1994 passed by 5th Additional Distill Judge,

Muzaffa, pur, in title appeal No. 7/78 whereby the judgment of the trial Court dated 17.10.1977 passed by Additional Sub-Judge, Muzaffarpur, in

title Suit No. 54/74/3/77 was set aside and the suit was remanded to the lower Court for fresh decision.

The plaintiffs of the suit are the appellants here. The plaintiffs of the suit had sought declaration of their right and title over the suit plot and they

had also sought recovery of possession with mesne profit. So far as the material issue relating to title of the plaintiff-appellants is concerned the trial

Court decided the issue in favour of the plaintiff-appellants; but fresh issue was recast at the fag end of the trial and after close of all the evidence to

the effect whether the suit had abated on account of notification u/s 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act.

This was issue No. 5 of the suit. The trial Court held that the suit had abated in view of Section 4C of the aforesaid Act and the plaintiffs were not

entitled to any relief and, accordingly, the suit was dismissed. The appellate Court concurred with the findings of the trial Court, who remanded the

suit for fresh decision on issue No. 5, because this issue was contested by the plaintiff-appellants and it was averred by them that the suit-lands

were exempt from notification u/s 3 of the Act because of the nature of the lands. However, the aforesaid judgment of the appellate Court is

challenged on the ground that when the material issues decided in favour of the plaintiff-appellants, the appellate Court had no authority to remand

the suit after setting aside the judgment of the trial Court, specially when there was no cross-objection by the defendant-respondents against the

findings which went in favour of the appellants. So, the absolute remand order passed by the appellate Court was illegal and bid in law.

Now, the question is whether the judgment of the appellate Court, which is under appeal, of course, indicated that it was absolute remand and

the trial Court was directed to give a fresh decision on all issues of the suit or whether, it was a limited one restricted to a fresh finding on issue No.

5 regarding the abatement. Paragraph-14 of the impugned judgment states that ""on behalf of plaintiff-appellants, it has been submitted that it will be

in the interest of justice if the case is remanded back to the trial Court for hearing the case with a direction to give opportunity to the parties to

adduce evidence with regard to issue No. 5 and decide the case afresh after the same"". At paragraph 15, the appellate Court stated that there was

no objection on the part of the defendant-respondents to the aforesaid prayer of the plaintiffs and, so, the parties should be given an opportunity to

adduce evidence on the point of abatement. The operative part of the judgment at paragraph 16 shows that the appeal was allowed and the

judgment and decree of the trial Court were set aside and the suit was remanded to the Sub-Judge for fresh decision for the reasons stated above.

So, it is apparent that the Court of Additional District Judge did not mean that the trial Court shall decide all the issues afresh, rather the language

used at paragraph 16 shows it was demanded only for decision on issue No. 5 after taking evidence on behalf of the parties. Even if there be any

ambiguity regarding the intention of the first appellate Court, it is hereby clarified that the trial Court shall consider only issue No. 5 afresh in the

High of evidence to be adduced by both the parties and give a fresh judgment, keeping the earlier findings, so far as the material issues regarding

the title of the plaintiff-appellants were concerned, intact.

In the result, with this clarification and direction, this appeal is dismissed because the order of remand which has been challenged in this appeal

was, perhaps, made on the prayer of the plaintiff-appellants themselves.