An appellate court's remand order under Order XLI Rule 23-A CPC must be justified by clear error in trial court decisions, with findings on possession and title needing consideration before partition can be addressed.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant appeal under Order XLIII Rule 1(u) read with Section 104 of the Civil Procedure Code, 1908 (hereinafter referred to as ‘the CPC )’ is filed by the appellant challenging the impugned order dated 17^th October, 2015 passed in R.F.A. No.5/46 of 2013/2009 by the learned 1st Additional District Judge-cum-Special Judge (Vigilance), Bhubaneswar, whereby, the matter was remanded to the court of leaned Civil Judge (Junior Division), Bhubaneswar on the following grounds:

(i) Whether the learned 1^st Appellate Court disposed of the appeal without substantially complying the conditions stipulated in Order XLI Rule 31 CPC ?

(ii) Whether defendant No.56 as the locus standi to file the appeal before the learned 1^st Appellate Court?

(iii) Whether learned 1^st Appellate Court was right to ignore the question of maintainability of the appeal filed by defendant No.56?

(iv) Whether learned 1^st Appellate Court was justified to remand the matter back without setting aside the finding of facts returned by the court of learned Civil Judge (Junior Division), Bhubaneswar relating to exclusive possession of the appellant vis- à-vis the schedule property?

(v) Whether the learned 1^st Appellate Court after holding that the suit is maintainable could have directed a de novo trial including on the issue of maintainability?

(vi) Whether finding of the learned 1st Appellate Court on impleading necessary parties to be correct?

(vii) Whether the learned 1^st Appellate Court rightly considered the import of Ext.35 contrary to the language expressed therein?

2. The appellant filed the suit in T.S. No.294 of 1993 (C.S.No.487 of 2000) in the court of learned Civil Judge (Junior Division), Bhubaneswar seeking relief of declaration to the effect that the decree is T.S. No.52 of 1985 is not binding to her and right, title and interest over the suit land, confirmation of possession over the same besides a decree of injunction vis-à-vis defendant No.1 and defendant Nos.38 to 56 from interfering in such possession with an additional relief of rectification of the record of right in respect thereof or in the alternative, for partition of Plot No.737 and allotment of the purchased share in her favour.

3. The court of 1^st instance decreed the suit of the appellant and declared her right, title and interest over the suit plot with the conclusion that there is no need for any partition. The maintainability of the suit in view of the objection of the defendant No.1 and others was rejected, inasmuch as, it was held that the same is not hit by Order XXI Rules 97 and 103 CPC . It was also held that the judgment and decree in T.S. No.52 of 1985 shall not bind the appellant since she was not impleaded therein despite her having acquired interest over the suit plot by way of purchase. The appellant is a vendee of the suit land from one of the co-sharers. As earlier stated, the suit was decreed in favour of the appellant on contest against defendant Nos.54 and 56 however without contest vis-à-vis other defendants and restrained defendant No.1 and defendant Nos.38 to 56 from interfering in the peaceful possession of the land by the appellant and for correction of the record of right. In other words, the alternate relief of partition had become redundant in view of the title declared in favour of the appellant.

4. Defendant No.56 filed the appeal before the learned court below against the decree in the suit. The learned 1^st Appellate Court held that the suit is maintainable and not barred by Order XXI Rule 97 CPC so to say confirmed the finding in the suit, however, referring to Section 44 of the Transfer of Property Act