Allowed

Gouranga Gumansingh v. Ramaraya Singh

Orissa HC12 Aug 2016SAO/12/2005

Case brief

AI extract

What is this about?

This High Court judgment held that an appellate court's order remanding a suit was unsustainable under Order 41 of the CPC. The court ruled that remand cannot be arbitrary and requires proof that findings could not be reached from existing evidence. The appeal was allowed, and the remand order set aside.

What did the court decide?

The judgment and decree of the lower appellate court were set aside, the appeal was allowed, and the matter remitted to the Additional District Judge, Khurda for fresh disposal.

Gouranga Gumansingh Vs Ramaraya Singh — Property and Title | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK.

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SAO. NO.12 of 2005

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From the Judgment and decree dated 18.11.2004 and 2.12.2004 respectively passed by the learned Ad hoc Addl. District Judge (F.T.C) Khurda in Title Appeal No. 5/9 of 2004/2002.

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Gouranga Gumansingh …… Appellant - VersusRamaraya Singh and others …… Respondents

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For Appellant : M/s. Satya Narayan Mohapatra and S.Ghosh, advocates For Respondents: M/s. G.N.Padhi, K.C.Rajguru Mohapatra and D.K.Nanda, advocates

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PRESENT:

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THE HONOURABLE SHRI JUSTICE D.DASH

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Date of hearing-11.05.2016 : Date of judgment- 12.08.2016

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The appellant in this appeal calls in question the order dated 18.11.2004 passed by the learned Ad hoc Addl. District Judge

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(FTC), Khurda in Title Appeal No. 5/9 of 2004/2002. By the said order,

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the learned Ad hoc Addl. District Judge having set aside the judgment

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and decree passed by the learned Civil Judge (Jr.Divn.), Khurda in T.S.

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No. 60/141 of 2001/1998 decreeing the suit granting the reliefs to the

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plaintiff-appellant has remitted the suit to the said court to give opportunity to the parties to adduce evidence, if any, in respect of the respective possession of the land pursuant to the compromise decree passed in O.S. No. 27/73 and recording a finding on issue no. 4 afresh, in further directing for consideration of the alternative case of the defendant-respondents as regards their claim of perfection of title by adverse possession by framing an issue to that effect, if required, and giving a finding thereon and accordingly to dispose of the suit.

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For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

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The plaintiff’s case is that the land under Sabik holding 208 corresponding to Hal holding 230 stood jointly recorded in the names of Lokanath Paikaray, Rajendra Paikaray, Bira Samantaray, Arakhita Samantara, Mahadev Samantara, Madhab Gumansingh, Jadu Gumanshigh and Bansidhar Gumansingh as per the settlement of the year 1931. Rajendra Paikaray, the paternal grand-father of defendant no.7, Gajendra Raysingh the common ancestor of defendant nos. 1 to 6, Narasingh Gumansigh, the common ancestor of the plaintiff and defendant nos. 8 to 10 and Udhab Samantaray, the paternal grand-father of Mahadev Samantaray were the four co-owners

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of the said property. In an amicable partition amongst them, the suit property along with other properties under Khata No. 208 came under separate possession of the said co-owners and accordingly separate note of possession found mentioned in the record of right of the year 1931. The suit land is said to be under the exclusive possession of Bira Samantaray, Arakhita Samantara and Mahadev Samantara who are the agnatic brothers with Udhab as their common ancestor. Said Udhab Samantaray had three sons namely, Bira Samantaray, Sudarsan Samantaray and Dusasan Samantary. Mahadev is the only son of Dusasan, Arakhita is the only son of Sudarsan and Nila Dei is the only daughter of Bira Samantaray. It is said that all of them were living jointly on the said land till the death of Udhab, Dusasan, Sudarsan and Bira. Arakhita is said to have died as a bachelor and Sudarsan’s branch is said to have been extinct. It is also said that Nila, the only daughter of Bira being given in marriage and Bira having died prior to 1950, she had no share in the suit property. Thus, Bira’s branch is also said to have been extinct. Mahadev the only son of Dusasan thus came to possess the suit land as its exclusive owner. It is said that during settlement of the year 1964, the suit property as also other property although were jointly recorded in the names of Lokanath Paikaray, Doli Raysingh, Bhima Raysingh, Nila Dei,

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Mahadev Samantaray, Madhu Gumansingh and Gaurang Gumanshingh, there was note of possession in favour of Mahadev in respect of the suit land corresponding to plot no. 984 exclusively.

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Further case of the plaintiff is that he has purchased the

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said land from Mahadev Samantaray by registered sale deed dated 11.6.90 for valuable consideration and accordingly mutated the same in his name. The said purchase is said to have been with the knowledge of the defendants and in the transaction, Krushna Chandra Paikaray, son of defendant no. 7 was a witness. The plaintiff claims to have been in possession of the suit land since then and accordingly, in the Hal settlement of the year 1998, it is said to have been recorded in his name. The plaintiff further states that the land under plot no. 985 belonging to defendant nos. 1 to 6 standing recorded jointly in the names of their father Doli Rayasingh and Bhima Raysingh adjoins the suit land. Similarly, the land under plot no. 983 adjoins the suit land on its west which belong to the plaintiff and his nephew, defendant no.8 and in respect of that note of possession stands in the name of grand-father of defendant no. 8 only. Taking advantage of the absence of the plaintiff, the defendant nos. 1 and 2 threatened to raise a thatched house over the suit land for which a proceeding under Section 144 of the Code of Criminal Procedure was initiated and an

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order of restraint had also been passed therein. It is alleged that on 30.6.98, the defendant nos. 1 and 2 with the help of defendant nos. 3 to 6 forcibly put a thatched house over the suit land, about which the local police was informed. When the matter stood thus, the defendant nos. 1 to 4 together initiated objection case in the Rent Camp at Atharang to record their names in respect of the suit land which stood exclusively recorded in the name of the plaintiff under plot no. 1130 alleging therein that they had purchased the suit land by registered sale deed dated 11.3.64 and 22.5.67. The plaintiff asserts that such sale deeds were never executed by Mahadev. The suit property is also said to have been the subject matter in another suit i.e. O.S. No. 27/77 wherein Mahadev has been declared to be the exclusive owner in possession of the same. The above moves of the defenedants are said to be wholly for the purpose of grabbing the suit land. So ultimately, the suit came to be filed.

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Defendant nos. 1 to 4 seriously disputed the claim of the plaintiff as regards the amicable partition of the suit property and other properties. They have stated that Mahadev’s sale deed dated 11.6.90 in favour of the plaintiff is not binding on them and it is also attacked on the ground of non-payment of consideration and nondelivery of possession. The defendants claim to be in peaceful

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possession of the suit land since the date of their purchase and to have constructed cow-shed and kitchen room over it for more than 13 years within the knowledge of the plaintiff. It is alternatively stated that in case their claim over the suit land on the strength of sale deed fails otherwise also they have perfected their title over the suit land by way of adverse possession.

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Faced with the above rival pleadings, the trial court framed six issues. First going to answer issue no. 4, the crucial issue no. 1 as regards the plaintiff’s right, title and interest so far as the suit land is concerned, upon evaluation of evidence both oral and documentary viewing other surrounding circumstances emerging from evidence, it has been answered in favour of the plaintiff. Practically, the decision on the above issue has decided the fate of the suit which has ultimately been decreed by the trial court.

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The unsuccessful defendants being aggrieved by the said judgment and decree of the trial court when filed the appeal, the lower appellate court has taken up the exercise of judging the sustainability of the finding of the trial court on issue no.4. Discussing the evidence it has been expressed at once stage as under:-

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“xx xxxx xx thus in view of the compromise decree in O.S. No. 27 of 1973, Mahadev acquired right and title over the eastern half of the suit plot no. 984 and not of the entire suit plot measuring Ac.0.035 decimals. The sale deed in favour of the plaintiff dated 11.6.90 by Mahadev Samantaray for the entire Ac.0.035 decimals of plot no. 984 thus, conveyed no right title to the plaintiff. Thus, it appears that the Civil Judge (Jr.Divn.) without going through the sale deed dated 11.6.90 and the compromise decree held that the sale deed in favour of the plaintiff is valid. When by a judgment of competent court Mahadev Samantary had no right and title over Ac.0.017, ½ decimals of land in t he suit plot the sale deed dated 11.6.90 with respect to the said portion of land conveys no title to the plaintiff.”

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Having taken the view as above, the lower appellate court has next gone to say that the learned Civil Judge (Jr.Divn.) should have taken care to scrutinize the judgment and decree passed in O.S. No. 27 of 1973 before holding the plaintiff as to be the title holder of the suit property. Then it has concluded that “the settlement followed

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in respect of the entire Ac.0.035 decimals of land in favour of the plaintiff is definitely wrong.”

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When above are the conclusions arrived at by the lower appellate court without assigning any further reason or even the purpose that would be served the judgment and decree of the trial court being set aside, the suit has been remitted to the said court to give opportunity to the parties to adduce evidence, if any, in respect of respective possession of the land pursuant to the compromise decree passed in O.S. No. 27 of 73 and then to render a finding afresh on issue no.4 as also to consider the alternative pleading of the defendants as regards the claim of acquisition of title over the suit land by adverse possession and if so, required by framing issue and record a finding thereon.

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Learned counsel for the appellant submits that parties

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having placed their rival case in detail in their pleadings, have led evidence in support of the same. Also in view of the claim of title over the suit land by the plaintiff and the alternative case of the defendants when they say to have acquired title over the suit land by adverse possession, since the issue remains concerning the title over the suit land, non-framing of issue as regards the specific defence as above taken by the defendants in so many words is of no fatal consequence

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on the face of the settled position of law. Thus he contends that said order of remand is unsustainable in the eye of law and the appellate court ought to have decided the appeal on merit as its level.

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The appeal has been admitted on the following substantial question of law:-

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“Whether the remand order passed by the lower appellate court satisfies requirements under Order 41, Rule 23, 23(A) or 25 of the CPC?”

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Learned counsel for the respondents has not gone to express his disagreement on the score that the parties have led evidence at length in support of their rival case as projected in the respective pleadings. He contends that a separate issue as regards alternative case of the defendants about acquisition of title over the suit land by adverse possession would have been ideal and therefore, the order of remand is not causing any prejudice to the plaintiff as he would also be getting all the opportunities. Thus he contends that the order is not liable to be interfered with.

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Specific provisions have been made in the CPC empowering remand of a suit by appellate court for specific purposes under specific circumstances. There cannot be an arbitrary order of

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remand without satisfying conditions under Rules 23, 23-A and 25 of Order 41 of the CPC. The public policy is to bring finality of an adjudication at the earliest. In Nishi Swain and others vs. Bikala Charan Swain; 1986 (II) OLR 654, it has been held:-

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“3. xx xx xx xx As the law stands now, power of remand is vested in the appellate Court under Rule 23, 23-A and 25 of Order 41, C.P.C. Rule 23 is not applicable to this case since the suit has not been disposed of on a preliminary issue. The consideration would have been different if remand would have been under Rule 25 which requires that the appeal shall be kept pending on an issue newly framed is to be sent back to the Trial Court for returning the finding. This is, however, a case of open remand under Order 41, Rule 23-A CPC. In a decision reported in AIR 1986 Ori. 207 (Rushi and another v. Madan Behera and another), I have expressed”

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“……… The appellate Court is required first to make the endeavour to answer to disputed findings and where in spite of such findings it would not be in a position to come to a conclusion either way, it would remand the suit for fresh trial.”

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I may make it clear that Order 41, Rule 23-A, CPC should be sparingly used since the public policy is that a litigation is to be concluded finally as early as possible. xx xx xx xx”

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In view of nature of evidence adduced by the parties in the

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present case there is no scope to hold that the findings and conclusion of the Trial Court are not based on materials on record. Even when a

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party fails to discharge the burden of proof, an order of remand cannot be passed in order to enable him to get a fresh opportunity for that omission. In P.Purushottam Reddy and another v. M/s. Pratap Steels

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Ltd. : AIR 2002 Supreme Court 771 it has been categorically held by the Supreme Court:-

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“An appellate Court should be circumspect in ordering a remand when the case is not covered either by R.23 or R.23A or R.25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore must be avoided.”

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This Court also, in Harmohan Mishra and another v.

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Anapurna Dibya and others; 1987 (II) OLR 157, has pointed out:-

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“21. xx xx xx xx It is not the duty of a Court to necessarily record a conclusive finding and insist that the best evidence should be brought on record by the parties for that purpose. The anxiety of the Court does not extend to that extent. If the evidence would not establish the right of the plaintiff or of the defendant, as the case may, then the claim having not been proved would not be decreed and there the matter would end.

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When a party with full knowledge fails to discharge the burden of proof, an order of remand is not proper to enable him to get a fresh opportunity for that omission.”

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Mere, non-framing specific issue is not sufficient to set

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aside the judgment and decree and remand the suit. If the parties have laid evidence and gone for trial fully knowing the nature of dispute involved, the appellate court is first required to consider whether the evidence on record already cover the issue specifically not framed and required to be decided as it appears essential for a right decision in the suit and make an endeavour as to if it can come to a conclusion on this aspect. Only in the event, that cannot be so done, the next course

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would be to frame that issue and refer it for trial to the trial court with direction to take further evidence and to return the evidence to the appellate court together with the trial court’s finding on the issue within such time as fixed or extended and thereafter to proceed for disposal of the appeal in accordance with law. But in that situation, the open remand of the suit is not permissible.

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Examining the facts and circumstances of the case in the light of above, it is seen that after arriving at the conclusions as mentioned in the aforesaid paras, the lower appellate court has abruptly jumped to set aside the judgment and decree impugned in appeal and remit the suit to the trial court without going to say that it is not so possible to record a finding on issue no. 4 without further enquiry being made or further evidence being placed and brought on record.

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In the instant case when the plaintiff has claimed title over the suit property on the basis of his purchase, the burden of proof rests on him to establish his title over the suit property. The defendants in defence having projected a competing claim of title over the suit property, the lower appellate court was duty bound to first of all decide as to whether the title over the suit property as claimed by

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the plaintiff is established or there has been a failure on his part. In

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doing so the claim of defendants as regards perfection of title by adverse possession would have side by side arisen for decision. On arriving at a finding that the plaintiff has proved his title over the suit land and there has been a failure on the part of the defendants to do so, the consequential consideration would have been as to whether the title of the plaintiff has stood extinguished because of the establishment of the alternative case of the defendants as regards acquisition of title by adverse possession. The very approach of the lower appellate court in disposing the appeal thus appears to be indefensible. For the aforesaid discussion and reasons, the order of remand as passed is held unsustainable.

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In the result, the judgment and decree dated 18.11.2004 and 2.12.2004 respectively passed by the learned Ad hoc Addl. District Judge (F.T.C) Khurda in Title Appeal No. 5/9 of 2004/2002 are hereby set aside. The appeal is now remitted to the court of Additional District Judge, Khurda for its disposal afresh in accordance with law after hearing the parties. Before parting, it is however made clear that whatever have been discussed and observed hereinabove shall not be taken as of expressions on the merit of the competing claims of the parties arising for decision in the appeal and those are only for the purpose of demonstrating that no remand in this case was required. In

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order to arrest the delay as the suit is of the year 1998, this Court while directing the parties to enter appearance before the said court on 05.09.2016 to receive further instruction in the matter fixing the date for hearing of the appeal by the said court, also directs that the lower appellate court would do well to dispose of the appeal as expeditiously as possible preferably by the end of December, 2016. The case records be transmitted to the lower appellate court at the earliest. 17. In the result, the appeal stands allowed. There is however no order as to cost.

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…. ………………

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Orissa High Court, Cuttack, Dated the 12^th day of August., 2016/Aswini

Gouranga Gumansingh v. Ramaraya Singh

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Gouranga Gumansingh v. Ramaraya Singh

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