A contested decree passed after considering materials available on record on merit cannot be set aside for non-payment of Court fee.

Mungeshwar Sahoo, J.

1. The Defendants-Respondents-Appellants have filed this Miscellaneous Appeal against the impugned judgment and order of remand dated 21st November, 2000 passed by Sri Arun Kumar Srivastava, the learned Second Additional District Judge, Buxar in Title Appeal No. 11 of 1985 whereby the learned Second Additional District Judge set aside the judgment and decree dated 9th January, 1985 passed by Sri R.K. Mishra, Second Munsif, Buxar in Title Suit No. 17 of 1972 and remanded the matter for a fresh decision on the basis of evidence available on the record.

2. The brief facts for the purpose of deciding this Miscellaneous Appeal is that the Plaintiff-Respondent filed Title Suit No. 17 of 1972 for declaration of title and confirmation of possession on the suit properties and also prayed for permanent injunction. The Plaintiff claimed the aforesaid relief alleging that the parties are Hindus governed by Mitakshara School of Hindu Law. By a private partition which took place 30-34 years ago, the parties were separated and Plaintiff after separation acquired the suit property out of his own income and saving and is in exclusive possession thereof. It appears that initially the said suit was decided ex parte but subsequently, at the instance of Defendants, second set, the ex parte judgment was set aside. According to the contesting Defendants, second set, the father of the Plaintiff had taken the disputed land on monthly rent of 12 Anna. When father of the Plaintiff defaulted in payment of rent, Eviction Suit No. 111 of 1959 was filed which was decided on 26th February, 1962. However, no order of eviction was passed as there was no notice under Section 106 of T.P. Act. When the father of the Plaintiff failed in his gain, he set up the Plaintiff and this suit has been filed. In fact, no settlement has been made by the ancestors of these Defendants and the Plaintiffs never came in exclusive possession of the land as owner.

3. After trial, the learned Court below considering oral as well as documentary evidences came to the conclusion that the Plaintiff has miserably failed to prove subsisting title and possession over the suit land. The learned Court below also found that the Plaintiff failed to prove adverse possession. The learned Court found that the Plaintiff had sufficient means to pay the Court fee and therefore, steps be taken to realise Court fee from him. On the basis of these findings, the learned Court below dismissed the Plaintiffs suit.

4. Against the said judgment and decree, the Plaintiff filed Title Appeal No. 11 of 1985. The Lower Appellate Court after stating the facts of the case of both the parties at Paragraph 9 held that the Plaintiff had made out a case by amendment of plaint that the Defendants, second set have no heritable and transferable right and therefore, the suit property vested in the State of Bihar. The State of Bihar is neither party in the suit nor party in the Appeal. The learned Court below did not consider this aspect and also did not realise the ad valorem Court fee first before the decision of the suit and therefore, set aside the impugned judgment and decree and remanded the matter to the Court below to realise the ad valorem Court fee for suit as well as for appeal within a month and directed to hear the parties only on the basis of the evidence available on the record.

5. Mr. Verma, the learned Sr. counsel appearing for the Appellant submitted that none of the provisions for remand is applicable in the present case and the learned Lower Appellate Court without considering either the provision contained in Rule 23(A) or Rule 25 of Order 41 remanded the matter although all the evidences are available on record and in the remand order itself the Lower Appellate Court has directed the Trial Court to decide the matter on the basis of the materials available on record. The learned Counsel further submitted that on the ground that Court fee has not been paid by the Plaintiff