Judicial efficiency mandates that remand for fresh disposal should only occur when necessary; a remanding court must determine the parties' shares or justify retrial necessity, which was neglected here.

JUDGMENT:

G. Satapathy, J.

1. This appeal under Order-XLIII Rule-1(u) r/w Sec. 105 of the Code of Civil Procedure, 1908 (in short “the CPC”) is directed against the reversing judgment passed on 16.08.2023 in RFA No.02 of 2008 by which the learned Additional District Judge, Jajpur, while setting aside the judgment and decree dated 05.10.2007 and 12.10.2007 passed by the learned Civil Judge, (Sr. Division), Jajpur in T.S. No. 233 of 1996 dismissing the suit of the Plaintiffs, has remitted the aforesaid suit to the learned Sr. Civil Judge for fresh disposal in the light of observation made in the judgment passed in the first appeal.

For clarity and better appreciation, the parties in this appeal from the order(SAO) are referred to as they were in the original suit in T.S. No. 233 of 1996.

2. The short facts involved in this case in precise are that one late Mahendra Malik and Dibakar Malik who were the predecessors in interest of the principal Respondents in this present appeal had instituted the suit against the present Appellants and Proforma Respondents in the Court of learned Civil Judge(Sr. Division), Jajpur in T.S. No. 233 of 1996 for partition of suit schedule properties morefully described in schedule-A, B and C of the suit constituting altogether 41 plots. According to the original Plaintiffs, the suit schedule properties are their undivided joint family property, but the CS ROR has been wrongly prepared. The original Plaintiffs had claimed that they were the sons of Yudhistira, but their sister Michhu being the daughter of Yudhistria had relinquished her interest in their favour before her death, though the Defendants Nos. 18 & 19 are her LRs. The original Plaintiffs had also claimed right over schedule “C” land which is Sikkim tenant Property by alleging that Tauli and Chintei, the predecessors-in-interest of the Defendants had managed to record the Sikkim plots more in their favour. It is their further claim that they are entitled to ½ share in the suit properties, but when the Defendants did not agree for a partition of the suit properties, they filed the suit for partition.

3. The Defendant Nos. 1 to 5, 7 to 10 and 14 filed their joint written statement denying the claim of the Plaintiffs by inter-alia questioning the maintainability suit for want of cause of action and disputing the genealogy appended to the plaint. According to the answering Defendants, the original Plaintiffs were only entitled 1/3^rd share and the note of possession over schedule “B” property is the outcome of partition by metes and bounds and thereby, they alternatively pleaded for allotment of 2/3^rd share in their favour in respect of suit schedule “A” land which was acquired by Tauli, Chintei and Kapila from the Jamindar with 1/3^rd share each. It is the further pleading of the Defendants that Kapila died in the year 1935, but Sec. 236 of Orissa Tenancy Act came into force after 1935 and, thereby, the Plaintiffs were not entitled to any share as Sikkim tenant and they(answering Defendants) being the successors of Tauli and Chintei are entitled to 1/3^rd share. It is the further case of the the answering Defendants that Yudhistira being the father of the Plaintiffs had filed O.L.R. Case No. 1360/76 against Srinath Samal and Khageswar Samal admitting his share as 7 Anna in schedule “C” land for which they are estopped to raise any contrary claim. While praying to dismiss the suit, the answering Defendants had claimed possession over 2/3^rd of the suit schedule properties by advancing alternative plea of adverse possession and plea of ouster. On the other hand, Defendants Nos. 18 to 21 filed their separate joint written statement, but supporting the stand taken by th