The main legal point established in the judgment is that an order of remand should be sparingly used and should not be passed to enable a party to get a fresh opportunity for an omission.

JUDGMENT

B.K. PATEL, J.

This appeal by the Plaintiffs in O.S. No. 203 of 1989 (I) of the Court of Learned Munsif (now Civil Judge (Junior Division, Bhubaneswar under Order 43, Rule 1 (u) of the Code of Civil Procedure (for short the C.P.C) arises out of Order Dated 12.10.2001 passed by Learned District Judge, Khurda at Bhubaneswar in Title Appeal No.4/17 of 2001/1992 remanding the suit under Order 41, Rule 23-A of the C.P.G. for fresh trial in terms of directions made in the impugned Judgment.

2. The concluding part of the impugned order reads as follows:

"13. From the discussions made & reason stated in the foregoing paragraphs. I hold that in the interest of justice the entire suit should be tried again affording the Defendant an opportunity to amend the written statement of defence by pleading initiation of the land acquisition process under Exts.B/1 & B & other relevant notifications & documents & to confront the contents of Ext.A/2 to the P.W.1 (Plaintiff No.13) on recall under Order 18, Rule 17 C.P.C & allow the Plaintiffs to lead rebuttal evidence. Since this is an open remand, both parties be given opportunity to adduce fresh evidence.

14. In the result, the appeal is allowed on contest without cost. The impugned Judgment & decree are set aside & the suit is remitted back for retrial under Order 41, Rule 23-A C.P.C., as per the observations made in paragraph 13 supra. The Learned Civil Judge (Junior Division) Bhubaneswar will make endeavour to dispose of the suit by the end of December, 2001. Parties are directed to appear before the Trial Court on 7.11.2001."

3. O.S. No. 203 of 1989 (I) was instituted by Plaintiffs against the sole Defendant State of Orissa for declaration that they are owners in possession of the suit lands & for correction of the record of rights in their favour claiming absolute title over the suit lands as occupancy raiyats. The suit lands are recorded under different plots under khata No.38 of mouza Bomikhal in the ROR published in the year 1962, However, in the current settlement of the year 1987-88 the suit lands were fragmented to different plots under khata No.109 of mouza Bhaingar, but draft record of rights was prepared in favour of General Administration Department of Government of Orissa.

4. Defendant filed written statement disputing Plaintiffs claim over the suit lands. It was asserted by the State that the suit lands were acquired for public purpose in Land Acquisition Proceeding No.9- of 1962-63 on payment of compensation to the Plaintiffs. It was further pleaded that though the entire suit lands were acquired in Land Acquisition Proceeding No. 9 of 1962-63, an area of Ac.0.29 decimals of land out of suit plot No. 18 & an area of Ac. 0.06 decimals of land out of suit plot No. 12 were again acquired by mistake in the year 1973 in Land Acquisition Proceeding No. 25 of 1973 for which Plaintiffs were again paid compensation. It was also pleaded that in the current record of rights the State Government in the General Administration Department have been correctly recorded as owner in respect of the suit lands.

5. Considering the rival pleading the Trial Court settled the following issues:

"(i) Is the suit maintainable?

(ii) Is there any cause of action for the suit?

(iii) Whether the entire suit properties have been acquired by the Government of Orissa in L.A. Case No. 9 of 1962 of only some portion have been acquired in L.A. Case No. 25 of 1973?

(iv) Whether the Plaintiffs are the rightful owners of the suit property, having right, title, interest & possession over it? &

(v) If file Plaintiffs are entitled to the reliefs prayed in the suit?"

6. In order to substantiate their case, Plaintiffs examined Plaintiff No. 13 as P.W.1 & placed reliance on the documents marked Exts.1 to 5. One witness D. W.1, the Revenue Inspector of General Administration Department, was examined & documentary evidence marked Exts. A & B series were relied upon by the Defendant.

7. On an appraisal of evidence on record Learned Tr