Remand of a case to the trial court is impermissible when the evidence is already on record and the grievance is the incorrect appreciation of evidence rather than insufficiency of evidence or the need for a retrial.

ORDER

This appeal has been filed by the defendant under the provisions of Order 43 Rule 1(u) of the Code of Civil Procedure against the order of remand dated 27.02.2013 passed by the First Appellate Court in Civil Appeal No. 23A/2011.

Facts of the case, in short, are as under :

The plaintiffs who are the wife and sons of Mayaram had filed a suit for declaration and permanent injunction with respect to the agricultural land situated in Patwari Halka No. 24 bearing survey No. 370/1 admeasuring 2.04 hectare of village Jalwa, Tehsil Ghatia, District Ujjain. The case of the plaintiffs is that property in dispute originally belonged to Late Siddhaji who got this property from his ancestors. The husband of plaintiff No.1 and father of plaintiffs No. 2 and 3 - Mayaram is the son of Late Sidhhaji. Mayaram solemnized marriage with Sajju Bai. As there was no issue from Sajju Bai, he solemnized second marriage with plaintiff No. 1- Sitabai. After second marriage of Mayaram, both the wives i.e. Sajju Bai and Sita Bai gave birth to four and two children, respectively. The plaintiffs (respondents No. 1 to 3 herein) stated in their plaint that there was a total of 8.25 hectare agricultural land of four different survey numbers in the name of Late Sidhhaji. Apart from this, in village Jalwa there is one residential dwelling of plaintiffs and defendant No. 1 and 2. In the north part of the said house plaintiffs were residing and the first wife was residing with defendant No.1. In view of the fact that after second marriage both the wives gave birth to children, the father of Mayaram i.e. Late Sidhhaji executed a family partition in which land of survey No. 370/1 admeasuring 2.04 hectare i.e. the suit property was given to respondents No. 1 to 3/plaintiffs, possession whereof was also given and rest of the agricultural land was given in the share of defendant No. 1 Mayaram and his first wife along with their children.

It was also stated in the plaint that in the year of 2003, taking advantage old age of Late Sidhhaji, respondent No. 1 got an agreement to sale executed by him in favour of one Tahir Hussain and in view of the same, an effort was made to dispossess plaintiffs because of which the suit for permanent injunction was filed. However, as it was a dispute amongst the members of the family, the matter was resolved by settlement under which the deed of partition was executed between Late Sidhhaji and plaintiff No.1. The defendants No. 2 and 3 executed a consent deed for the aforesaid partition. As the matter was settled amongst the members of the family, the aforesaid suit was not pressed, thus the same was dismissed for want of prosecution and since then, the plaintiffs were in possession of the aforesaid suit property.

Subsequent to this, the defendant No. 1 discreetly got his name mutated for the suit property in revenue records and tried to dispossess the plaintiffs by alienating property to third party and under these circumstances the instant suit came to be filed before the trial Court which came to be registered as Civil Suit No. 28A/2009.

The trial Court after considering evidence, recorded a finding in paragraph 11 that if for the sake of arguments it is accepted that the deed of partition (Exh.P/1) was executed between Late Sidhhaji and plaintiff No. 1 Sita Bai, still the burden was on the plaintiff to prove the execution of the same. However, the same was not proved by leading evidence of any of the witnesses in absence of which it cannot be held that the plaintiffs got the suit property in the partition. Apart from this, in paragraph 10 of the judgment dated 20.10.2011, the learned trial Court recorded a finding that the Exh. P/3 and P/4 are the revenue records i.e. Khasra Panchshala and Kishtbandi Khatoni of the year 2001-02 which was not prepared in accordance with the provisions of Section 17 6 of the Evidence Act hence, the concerned Patwari who issued the same was required to be examined for proving the same. As he was not