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2015 Supreme(Pat) 1129
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
Ambika Yadav - Appellant
Versus
Ganesh Prasad Mishra & Ors. - Respondents
Miscellaneous Appeal No.710 of 2008
Decided On : 01-12-2015
For the Appellants : Mr. Pramod Kumar Sinha, Mr. Arvind Kumar Sharma, Mr. Chetan Kumar, Mr. Bijay Kr. Sinha
For the Respondents: Mr. Yogendra Mishra, Mr. Raghunath Kumar, Mr. Kaushal Kr. Singh, Mr. Ashok Kumar
The appellate court should decide the appeal on merit after considering the evidence before the trial court, and unnecessary remands should be avoided.
Headnote:
Remand - Land Dispute - Order 41 Rule 23A - 25 - The court remanded the case to the lower court for retrial, but the higher court found that the remand was unnecessary and set aside the order, directing the lower court to decide the case on the basis of the available material.
Fact of the Case:
The appellant challenged the order passed by the Additional District Judge, setting aside the judgment and decree arising from a land dispute and remanding the matter for fresh decision. The dispute involved the execution of a sale deed and a deed of relinquishment, with conflicting claims regarding the authenticity of the documents.
Finding of the Court:
The higher court found that the remand was unnecessary and set aside the order, directing the lower court to decide the case on the basis of the available material.
Issues: The issues revolved around the execution of the sale deed and the deed of relinquishment, with the authenticity of the documents being a key point of contention.
Ratio Decidendi: The court held that the remand was unnecessary and directed the lower court to decide the case on the basis of the available material, emphasizing that the appellate court should have decided the appeal on merit after considering the evidence before the trial court.
Final Decision: The order of the appellate court was set aside, and the lower court was directed to decide the case on the basis of the available material.
In the present case, the appellant is challenging the order dated 27th September 2008 passed by Chandrama Singh, Additional District Judge, Fast Track Court-VI, Munger in Munsifi Title Appeal No. 36 of 2003 whereby and whereunder the judgment dated 17th September 2003 as well as decree dated 24th September 2003 arising out of Title Suit No. 96 of 1989 has been set aside and the matter has been remanded back for fresh decision.
2. The issues were framed by Additional District Judge, Fast Track Court, Munger and in the said judgment, the Court directed that the court below to obtain an expert opinion in respect of signature of Ambika Yadav as well as Bhagwat Prasad Sharma bearing on Ext.-2 (Bajidawa) and Ext.-A is the sale deed dated 27.4.1988 executed in favour of the present appellant including the signature of Bhagwat Sharma in his written statement. It has further been directed that the court below will take all steps to examine the said Bhagwat Prasad Sharma, even as court witness to arrive at a right conclusion.
3. It is undisputed fact that the evidence of Bhagwat Prasad Sharma cannot be recorded on account of his death. Only the issue left for getting the documents examined by the Government expert with regard to the signatures appearing in Ext.-2 and Ext.-A i.e. Bajidawa and sale deed respectively.
4. The present appellant is the defendant first party in the title suit as well as he was the first respondent before the Appellate Court. The present subject of the dispute is the land appertaining to Area 1 Kattha and 2½ dhurki, 1369 Sq. ft.
5. Bhagwat Prasad Sharma acquired the land which is subject matter of this case, in a partition suit, vide Title Suit No. 52 of 1958/51 of 1956 and in that title suit, he and his branch acquired to 2.59 ¼ acres of land and the present disputed land is a part of the aforesaid land. Out of 2.59¼ acres of land, Bhagwat Prasad Sharma (Defendant no. 2) sold the aforesaid disputed land, vide sale deed dated 27/4/1988 (Ext-A) and later on, the plaintiff, Ganesh Prasad Mishra also purchased the same land, vide registered sale deed dated 12.6.1989 (Ext-1) through Shiv Shankar Prasad Sharma and Gopal Prasad Sharma, both are sons of Bhagwat Prasad Sharma. Bhagwat Prasad Sharma and others executed the power of Attorney in favour of Gopal Sharma for himself and for other members of the family, defendant nos. 2, 5 and 6.
6. As per the claim of the appellant, only a Jhopra was standing on the disputed plot, but wrongly a complaint was filed by the plaintiff that a Jhopra was illegally constructed over the land on 30.06.1989, for that, a proceeding under section 144 Cr.PC was initiated, vide Case No. 1406 M/1989, and that proceeding ended in favour of the present appellant and against that Criminal Revision No. 455 of 1989 was filed before the Sessions Judge, Munger which was dismissed, vide order dated 18.9.1989, holding that the proceeding of Section 144 Cr.PC lost its force. During 144 proceeding, Ganesh Prasad Mishra could know about execution of sale deed by Bhagwat Prasad Sharma in favour of the appellant, later on, he contacted Bhagwat Prasad Sharma who informed him, the relinquishment had been made by executing a registered Bajidawa, vide order dated 6th August 1988 which led to filing of the suit.
7. In the suit, Ganesh Prasad Mishra has taken plea of the execution of sale deed by Bhagwat Prasad Sharma and on whose strength, the appellant is claiming the right over the property is not a genuine document, as the same has not been executed by real Bhagwat Prasad Sharma. It has further been stated that after purchasing the land by the present appellant-defendant, he executed the Bajidawa (deed of relinquishment) in favour of Bhagwat Prasad Sharma thereby he relinquished his right over the suit property and as such, after his relinquishment, Bhagwat Prasad Sharma executed the sale deed in his favour thereby validly transferred the right title of the disputed property whereas the relinquis
