Shankar and Others vs Richpal and Others

Hon''ble Pankaj Mithal, J.—List has been revised.

Heard Sri Rahul Kumar Tyagi, holding brief of Sri Santosh Kumar Srivastava, learned Counsel appearing for the Appellants. No one appears for the Respondents despite name of several counsel being printed in the cause list.

This appeal is directed against the order of remand dated 17.8.99 passed by the lower appellate court in Civil Appeal No. 207 of 1997.

The suit of the Plaintiff-Appellants for permanent injunction in respect of land in dispute shown by letters A, B, C and D in the plaint map was decreed by the court of first instance vide judgment and order dated 13.10.97. The aforesaid decree was challenged by the Defendant-Respondents by filing Civil Appeal No. 207 of 1997.

The appeal has been decided by the impugned order, the judgment, order and decree passed by the court of first instance has been set aside and the matter as a whole has been remanded for decision afresh.

The submission of learned Counsel for the Appellants is that the suit was decided by the court of first instance on merits. No retrial was necessary and in view of evidence already on record, the lower appellate court could have itself decided the dispute finally instead of remanding the matter.

Both the contesting parties to the suit appeal claim to be decedents of the common ancestor Khushi, who had two sons Netram and Patram. Both the parties further claim that the aforesaid property had devolved upon them through their predecessors in interest i.e. Netram and Patram respectively, who acquired it vide deed of exchange dated 12.2.1913 executed by one Nathwa son of Budha. The Plaintiff-Appellants claim that the land in dispute vested in Netram, whereas Defendant-Respondents allege that it vested in Patram by virtue of the above exchange deed.

In short the dispute is as to whether the land in dispute in exchange was given to Netram son of Khushi or to Pathram son of Khushi vide exchange deed dated 12.2.1913.

The trial court after considering the exchange deed held that the land in dispute by the aforesaid deed of exchange had been acquired by Netram son of Khushi and as such decreed the suit in favour of the Plaintiff-Appellants.

Since the exchanged deed happens to be a document in Urdu, the appellate court held that as no expert person having the knowledge of Urdu has translated the exchange deed, the court below was not justified in relying upon the version of the person, who was only able to read and understand Urdu in coming to the conclusion that the exchange was in favour of Netram son of Khushi. It has thus remanded the matter for seeking expert opinion and to decide thereafter. This would have been done by the appellate court itself. The exchange deed could have been got translated into Hindi or English by an expert so as to arrive at the correct conclusion as to whether the land in dispute was settled in favour of Netram or Patram.

Section 107 of the CPC enables the appellate court to determine the case finally. Remand is only permissible where the court is of the opinion that retrial is necessary or where the suit has been decided on a preliminary point as envisaged in Order 41 Rule 23 and 23A CPC None of the aforesaid conditions for remand were available in the present case. It is not the opinion of the court that retrial is necessary and the suit was also not decided on any preliminary point without going into the merits.

In view of aforesaid facts and circumstances, the impugned order passed by the court below cannot be sustained.

Accordingly, the order dated 17.8.99 passed by the lower appellate court in Civil Appeal No. 207 of 1997 is hereby set aside with the direction to the lower appellate court to decide the appeal afresh on merits in accordance with law as expeditiously as possible within a period of 6 months from the date of production of certified copy of this order.

Appeal allowed. No cost.