Judgment:
1. The plaintiff no. 2-appellant has preferred this appeal against the judgment dated 28.01.2005 passed by the learned 4th Additional District Judge, Siwan, in Title Appeal no. 4 of 1996 by which the judgment and decree dated 8.12.1995 and 3.1.1996 respectively passed in Title Suit no. 47 of 1989 by the learned 2nd Munsif, Siwan, have been set aside, the appeal has been allowed and the Title Suit no. 47 of 1989 has been remanded to the court below for deciding it afresh after framing proper additional issues and taking evidence of the parties.
2. The plaintiff no.1-respondent no.2, Dinesh Ram, filed Title Suit no. 47 of 1989 for declaration that the deed of gift dated 1.11.1988 (Ext.E) executed by his father, namely, Haruni Ram (defendant no. 2) in favour of defendant no. 1, namely, Sahdeo Ram (original respondent no. 1) for the suit land was forged, fabricated, without consideration and not legally executed giving any right to the donee, besides permanent injunction from dispossession or further alienation.
3. During the pendency of the suit, the appellant was added as plaintiff no. 2 and her case was that plaintiff no. 1 and the defendants were in collusion with each other and the suit had been brought to defeat her title which she had already acquired by sale deed followed by mutation etc.
4. The case of plaintiff no. 2 is that defendant no. 2 being the Karta of his family entered into a contract in May, 1986 to sell his Kastkari and Dihbasgit land for Rs.25,000/- and execution of a deed of Mahadanama in her favour on 5.5.1986. She paid Haruni Ram a sum of Rs. 6,000/- and thereafter putting possession over the land including the suit land. As per deed of Mahadanama, the plaintiff no.1 and defendant no.2, Haruni Ram and his wife defendant no.3, Smt. Tara Devi together executed two registered sale deeds on 25.1.1987 (Ext. 3 and 3/A) in favour of plaintiff no. 2-appellant. On the basis of this purchase the plaintiff no. 2 intervened in the suit and was allowed to be added as plaintiff no. 2. The main contesting defendant no. 1, namely, Sahdeo Ram filed his separate written statement to dismiss the suit and the suit land was given to his grand-father by father of Haruni Ram on Batai as he was working and living in West Bengal which was subsequently surrendered to them. Defendant no. 2 negotiated to sell the land with defendant no.1 for which a deed of Mahadanama was executed on 6.11.1987 but when on 1.11.1988 a sale deed was to be executed, instead of the sale deed, a deed of gift was executed because of insufficiency of money required for purchasing stamp for the sale deed. Defendant no. 2 was a clever man and not an intoxicated man. The two sale deeds in favour of plaintiff no.2 were not legally executed and the Mahadanama in her favour was antedated. On these pleadings it was prayed to dismiss the suit.
5. After framing the issues both the parties led their evidence and thus, the suit was decreed on contest vide judgment dated 8.12.1995 passed by the learned Munsif 2nd, Siwan, in Title Suit No. 47 of 1989 and it was held that the deed of gift dated 1.11.1988 is forged, fabricated, not legally executed and attested documents by defendant no. 2 and defendant 1st set has no right on the basis of the deed of gift.
6. Defendant no. 1 filed Title Appeal no. 4 of 1996 against the aforesaid judgment and decree dated 8.12.1995 passed in Title Suit no. 47 of 1989.
7. After hearing both the parties, the judgment and decree passed by the learned 2nd Munsif, Siwan, has been set aside by the learned 4th Additional District Judge, Siwan, by the impugned judgment dated 28.1.2005.
8. Learned counsel for the appellant has submitted that the learned appellate court has set aside the judgment of the Title Suit on the ground that proper issues have not been framed and also on the pleadings of the parties. It is held that the vital issue was that the deed of gift dated 1.11.1988 is really a sale deed or not has not been framed by the learned Munsif and in absence of this vital and proper issue, the parties have not adduced their evidence. It has been submitted that it was the specific pleading of Sahdeo Ram (defendant no. 1) that defendant no. 2 executed the deed of gift on 1.11.1988 and accepted the execution before the Registrar. Therefore, the deed of gift has been accepted by defendant no.1.
9. From perusal of the issues framed by the learned trial court, it is apparent that the issue no. 4 is, is the deed of gift dated 1.11.1988 executed by defendant no. 2 in favour of defendant no. 1 is forged, fabricated, not legally executed and attested by defendant no. 2. Issue no. 5 is, has the defendant 1st set no right over the suit land on the basis of the deed of gift. On these issues also oral as well as documentary evidence has been adduced on behalf of both the parties. The plaintiffs have examined 16 witnesses and have also adduced a number of documentary evidence. Similarly, defendant no. 1 has also adduced as many as 10 witnesses and also adduced a documentary evidence and the deed of gift has been produced by him which has been marked as Ext.(E). As such, it cannot be said that there was no pleadings and evidence regarding genuineness of the deed of gift executed in favour of defendant-respondent no. 1. Only framing of issues or the evidence cannot change the nature of the deed. There was sufficient material on the record to decide the appeal by the learned appellate court. As such, the appellate court could not have remanded the case to frame issues and for a de novo trial.
10. He has further submitted that even if there would have been such an issue that whether the deed of gift was a deed of sale or a deed of gift. As stated in para-10 of the appellate courts judgment, he has also submitted that no witness has stated that the deed of gift was executed due to lack of court fee. Defendant no. 1 has been examined as D.W. 7 and in para-5 he has stated that the recital of the deed of gift is correct.
11. He has further submitted that there is sufficient evidence on the record to decide the suit by the appellate court also and there was no occasion to remand the case after framing of proper issues. The appellate court can itself frame issues on the point as to whether the deed of gift was a sale deed or a deed of gift and on this point also there is evidence on the record adduced by the defendants.
12. Learned counsel for the respondents has submitted that Dinesh Ram (plaintiff no. 1) did not turn up during trial. Haruni Ram, father of plaintiff no. 1, had executed a deed of Mahadanama in favour of plaintiff no. 1 on 6.11.1987 and the deed of gift on 1.11.1988. On 5.5.1986 Haruni Ram executed an agreement to sell in favour of plaintiff no. 2 and the sale deeds were executed by Haruni Ram in favour of plaintiff no. 2 on 25.1.1989. No issue was framed as to whether the deed of gift was a sale deed as pleaded by defendant no. 1. Plaintiff no. 1 did not lead any evidence. Plaintiff no. 2 is an outsider and he cannot challenge the deed of gift. The order of remand passed by the learned appellate court is correct. Both the parties will lead evidence and thereafter the judgment would be passed. Since both the parties have been given opportunities to adduce evidence, as such, no interference in the impugned judgment is required by this Court.
13. After hearing the learned counsels for both the parties and on perusal of the records, it appears that Order 41 deals with the appeals from original decree. There is provision for remand by the appellate court under Order 41 Rule 23 of the Code of Civil Procedure in case the suit has been disposed of upon a preliminary point and the decree is reversed in appeal. The appellate court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred. Under Order 41 Rule 23A of the Code of Civil Procedure, there is provision for remand in other cases. Under Order 41 Rule 24 of the Code of Civil Procedure, there is provision that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.
14. In this background, on perusal of the record, it appears that the trial court has framed eight issues, out of which issue no. 4 is œIs the deed of gift dated 1.11.1988 executed by the defendant no. 2 in favour of defendant no. 1 is forged, fabricated, not legally executed and attested by defendant no. 2? and issue no. 5 is œHas the defendant 1st set no right over the suit land on the basis of the deed of gift??
15. It appears that both the parties have adduced sufficient oral as well as documentary evidence. There is sufficient evidence regarding sale/gift of the land in question.
16. It is settled principle of law that when sufficient material is on record to pronounce the judgment the Appellate Court should have decided the case on merit under Order 41 Rule 24 of the Code of Civil Procedure. In this connection, the decision in the case of Ashwinkumar K. Patel v. Upendra J. Patel and others reported in AIR 1999 SC 1125 is the leading judgment. It has been held that the High Court should not ordinarily remand a case under Order 41 Rule 23 of the Code of Civil Procedure to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. It is better to quote para-7 of the judgment.
œ7. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 C.P.C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reserved or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary. ?
17. Considering the facts and circumstances stated above, in my view, the learned appellate court should decide the appeal on its own merit without remanding the case to the trial court. For the reasons mentioned above, I do not find any valid reasons for remanding the case to the trial court. Accordingly, the impugned judgment and decree passed by the learned appellate court are set aside and the matter is remanded to the learned 4th Additional District Judge, Siwan/court concerned to decide the matter in accordance with law.
18. In the result, the appeal is allowed. There would be no order as to costs.
19. Let the lower court records be sent down to the court below.