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Judgment
A.S. Naidu, J.—The judgment dtd. 6.3.1993 passed by learned Addl. District Judge, Jajpur in Title Appeal No. 12/85/8/1987 is assailed.
By the said judgment the appellate Court has remanded T.S. No. 82 of 1979 to learned Civil Judge (Sr. Divn), the then Sub-Judge, for deciding Issue No. 2 afresh. The present appellants were the plaintiffs in the said suit. The defendants had carried the Title Appeal. Issue No. 2 as it appears from the impugned judgment is:
Whether Defendant No. 1 is a public deity or a private one.
In consonance with the Orissa Hindu Religious Endowments Act, 1951 the Asst. Commissioner is authorized to decide such question u/s 41 of the said Act. Even otherwise there is a bar in the O.H.R.E. Act with regard to deciding such an issue. In view of the aforesaid legal provision, the direction issued by the appellate Court to decide Issue No. 2 by the trial Court is not just and proper.
The suit is one for partition. There is enough material on record to decide the suit. Law is well settled that an appellate Court should make all endeavour to decide an appeal on the basis of the available materials and only in the event materials available are not for an efficacious adjudication of the matter, a remand may be ordered. The trial Court has not arrived at a conclusion that enough materials were not available for efficacious adjudication of the dispute. This Court therefore feels that it is a fit case where the judgment and decree passed in Title Appeal No. 12/85/8/1987 by learned Addl. District Judge, Jajpur should be set aside, and directs accordingly. The appellate Court is directed to rehear the appeal on the basis of the materials available and dispose of the same in consonance with law.