Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiff-appellant has been preferred against the impugned judgment and decree dated 23.1.2004 and 12.2.2004 respectively passed in Title (Eviction) Appeal No. 4 of 1994 by Shri Anirudh Prasad Sharma, 2nd Additional District Judge, Dumka whereby and whereunder the judgment and decree of the trial Court passed in Title (Eviction) Suit No. 20 of 1980 were set aside and appeal was allowed and the case was remitted to the trial Court for a fresh decision on further issues having been framed.
2. The plaintiff-appellant has filed the said suit for eviction of the defendant from the suit land detailed in Schedule-A of the plaint and for realization of arrears of rent amounting to Rs. 600/-. The suit land bearing Plot No. 947 having an area of 1 bigha, 9 katthas and 14 dhurs in Mauza-Rasikpur (Raghunathganj) No. 2, Police Station-Dumka. Town, Sub-Division-Dumka Santhal Pargana is Basauri land leased out to the original defendant.
3. The case of the plaintiff-appellant, in brief, is that the suit land was let out to the defendant on the monthly rent of Rs. 25/- on 6.2.1962 (Ext. 1/A) and the defendant is a month to month tenant and the defendant began to use the suit land for motor garage and began to carry the business of motor repairing etc. and the defendant paid the rent till June 1967 and by mutual oral agreement, the rent was enhanced to Rs. 40/- per month and the defendant paid the rent from July 1967 till the month of January 1968 at the rate of Rs. 40/- per month and the rent was payable in the first week of the following month. The defendant became defaulter due to the non-payment of the rent from February 1968 and after service of notice under Section 106 of the Transfer of Property Act determining the tenancy in question and he approached the plaintiff and requested to pardon his default and made the payment of Rs. 400/- on 20.5.1970 towards the arrears of rent for the month of February 1968 to June 1968. Thereafter the defendant again defaulted in payment of the rent from July 1968 to November 1970 and notice under Section 106 of the Transfer of Property Act was served upon him in the month of December 1970 determining, his tenancy directing him to vacate the suit land and to pay the arrears of rent but it did yield no result and the plaintiff filed Title (Eviction) Suit No. 43 of 1971 against the defendant and the defendant appeared in the said suit and the said suit was compromised (Ext. 11) and the defendant paid the arrears of rent and undertook and agreed that he shall retain the possession of the suit land as month to month tenant under the plaintiff and in default liable to be evicted from the suit land and the suit was decreed on 17.4.1972 in terms of the compromise. The further case of the plaintiff is that the defendant again defaulted in payment of the rent from March 1979 to November 1979 and a notice under Section 106 of the Transfer of Property Act was served upon the defendant determining his tenancy directing him to vacate the suit premises but the defendant did not vacate the suit premises even after expiry of the period given in the said notice. It is also alleged that the plaintiff also reasonably and bonafidely requires the suit land for his use and occupation. Hence the necessity of the suit.
4. The case of the original defendant, inter alia, is that the suit land is not the exclusive property of the plaintiff and it also belongs to his brothers to his brother Ram Dayal Modi, Bibhuti Prasad Modi and his son Arun Modi and others and the suit land is not a Basauri land and it is outside of the jurisdiction of Dumka Municipal area where the settlement operation is going on and Section 5 of the Santhal Pargana Settlement Regulation 1872 bars the jurisdiction of this Court and the suit ought to have been filed before the Settlement Court. His case further is that he has taken the suit premises on a monthly rent of Rs. 25/- which was later on enhanced to Rs. 40/- per month but the rent was not payable in the first week of the following month, rather, it was to be paid at the convenience of the defendant and he has never defaulted in payment of rent and he has paid Rs. 200/- on 20.5.1970 as per the terms of oral agreement. It is alleged that the plaintiff wanted to enhance the rent of the suit premises to which he did not agree and the plaintiff brought Title (Eviction) Suit No. 43 of 1971 which was disposed of in terms of compromise and the defendant was allowed to continue in the suit premises as tenant and thereafter whenever the defendant went to pay the rent, the plaintiff did not accept the same with some plea or other and asked the defendant to enhance the rent at the rate of 100/- per month to which the defendant did not agree and the defendant paid Rs. 400/- on 2.1.1980 being the monthly rent of the suit land from March 1979 to December 1979 and again the defendant sent Rs. 600/- by M.O. on 11.6.1980 for the rent of fifteen months but the defendant refused to receive the same and still he is ready and willing to pay the rent to the owner of the suit premises. It is also alleged that the plaintiff and his co-sharers have several houses in the town of Dumka and other places and the plaintiff does not require the same for his personal use and occupation. Lastly, it has been alleged that notice under Section 106 of the Transfer of Property Act has not been served properly upon him.
5. Original defendant Mohan Prasad Bhagat died during the pendency of the suit and his heirs were substituted. There had been a Title Suit No. 56 of 1981 for partition of the joint family properties including the suit land between the co-sharers of the plaintiff on the one hand and this plaintiff on the other hand after the institution of his eviction suit and the said Title suit was disposed of in terms of the compromise in which the suit land was allotted to the Takhata of Bibhuti Prasad Modi and others and not in the Takhata of the plaintiff. However, there is a term in the compromise petition that some cases relating to the plaintiff's share i.e. Bibhuti Prasad Modi are pending against the tenants in the Court for their eviction which will be looked after by Bhagirath Ram Modi (the plaintiff in the eviction suit) till their disposal without prejudice to the rights of Bibhuti Prasad Modi and others. During the pendency of the appeal, said Bagirath Ram Modi died and by then, Bibhuti Prasad Modi was also dead and in such a situation Arun Kumar Modi, the son of late Bibhuti Prasad Modi had been substituted as plaintiff-respondent in the said appeal vide order dated 28.7.1997 without any objection having been raised by the tenant defendant.
6. In view of the oral and documentary evidence on the record, the learned trial Court has formulated the followings issues for adjudication in the suit :--
(i) Whether the suit, as framed, is maintainable?
(ii) Whether the plaintiff has cause of action for suit?
(iii) Whether this Court has no jurisdiction to try this suit under Section 5 of the S.P. Settlement Regulation 1872?
(iv) Whether the suit is bad for nonjoinder of necessary party?
(v) Whether the defendants are defaulter in payment of the rent?
(vi) Whether the plaintiff is entitled to a decree of Rs. 600/- on account of arrears of rent against the defendants as detailed in schedule-B of the plaint?
(vii) Whether the plaintiff reasonably and in good faith requires the suit premises for his personal use and occupation?
(viii) Whether the plaintiff is entitled to a decree of eviction against the defendants from the suit premises detailed in schedule-A of the plaint?
(ix) Whether the plaintiff is entitled to any other relief or reliefs?
7. The learned trial Court has decided all the issues in favour of the plaintiffs except issue No. (vi). The learned trial Court has held that this Court has jurisdiction to try the suit and the jurisdiction of the civil Court is not barred under Section 5 of the S.P. Settlement Regulation 1872 and the suit is not bad for non-joinder of necessary party. The trial Court has further held that the defendant is a defaulter in payment of the rent and the plaintiff is entitled to a decree of Rs. 600/- on account of arrears of rent against the defendant and the plaintiff is entitled to a decree of eviction against the defendant from the suit premises. The learned trial Court has also held that the plaintiff reasonably and in good faith does not require the suit premises for his personal use and occupation. In view of the findings above, the trial Court has decreed the suit directing the defendant to vacate the suit premises within three months from the date of the order.
8. Being aggrieved by the judgment of the trial Court, the defendant preferred Title Appeal No. 4 ,of 1994. The learned appellate Court below allowed the appeal and set aside the judgment of the trial Court and remitted the case before the trial Court framing fresh issues for the decision of the trial Court.
9. Assailing the impugned Judgment it has been submitted by the learned counsel for the plaintiff-appellant that the impugned order of remand is erroneous and it is not within Rule 23, Rule 23-A and Rule 25, Order XLI of the Code of Civil Procedure and the learned appellate Court below has not recorded a finding that retrial of the suit is necessary while reversing the judgment of the trial Court. It has further been submitted that it is the settled principle of law of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made. It has further been submitted that here in this case, the learned appellate Court below has framed issues for adjudication by the trial Court and has remitted the case to the trial Court but the learned trial Court has not acted upon in accordance with the Rule 25 of Order XLI of the Code of Civil Procedure which provides that in a case when an order of remand passed under Rule 25 of Order XLI of the Code of Civil Procedure it retains with it the appeal itself and remit the matter to the trial Court for a limited purpose and in this view of the matter, the learned appellate Court below has not exercised his jurisdiction under Rule 25 of Order XLI of the Code of Civil Procedure and in such a situation, the learned appellate Court below ought to have exercised the powers under Rule 27 of Order XLI of the Code of Civil Procedure. It has also been submitted that relationship of landlord and tenant stands admitted in this nature of land is irrelevant and in the earlier suit as per the compromise petition the relationship of landlord and tenant between the parties as well as the nature of the land stands finally determined and concluded and there in no scope to re-determine the said matter and therefore, the remand order is not at all valid and the learned appellate Court below has no scope to remit the case but to decide itself in view of the materials available on the record and thus the remand order is bad and unsustainable.
10. In contra, it has been submitted by the learned counsel for the defendant-respondent that the learned appellate Court below has jurisdiction to remand a case in view of the absence of finding in the judgment of the trial Court regarding the relationship of landlord and tenant between the parties as well as the nature of the suit property and, since the trial Court in its judgment has not addressed in respect thereof and as such lower appellate Court had no option but to remand the case for determination of the matter framing specific issues in respect thereof. It has also been submitted that the order of remand, therefore, falls within the ambit of Rule 23-A of Order XLI of the Code of Civil Procedure and thus, there is no illegality in the impugned judgment. In support of his contention, reliance has been placed upon the ratio of the case of Narayanan v. Kumaran and Ors., (2004) 4 SCC 26.
11. It is relevant to mention at the very outset that a Court of appeal has a power to remand case only under Rule 23, Rule 23-A and Rule 25 of Order XLI of the Code of the Civil Procedure. Rule 23 and Rule 23-A have no application in the context of this case. All the cases of wholesale remand are covered by Rule 23 and Rule 23-A of Order XLI of the Code of Civil Procedure. It is equally pertinent to mention at this stage that the operative portion of the impugned judgment does not show that the learned appellate Court has held that the re-trial of the suit is necessary. The learned trial Court has decided all the issues in favour of the plaintiff except the issue of bona fide requirement of the suit land but the learned appellate Court has not reversed all the findings of the learned trial Court, rather, it has framed further issues and remitted the suit for a fresh decision, for the sake of clarity, I quote the operative portion of the impugned judgment which runs thus :--
'I am of the view that in addition to issue framed by the Court below two more issues are to be decided which are as follows :--
(i) Whether there is relationship of the landlord and the tenant between plaintiff and defendants?
(ii) Whether the land in suit is Basauri land or Bakast land?
11. The Court below shall decide these two issues and shall give findings afresh in the above circumstances, i came to the conclusion that the suit is fit to be remanded in the Court below for giving the finding on the direction given therein above and in this view of the matter, I find and hold that the finding of the learned Court below is erroneous on both facts and law, therefore, the judgment and decree dated 15.9.1994 and 19.9.1994 passed by the learned Court below is hereby set aside and the appeal is allowed.'
It appears that the learned appellate Court below has exercised its power of remand under Rule 25 of Order XLI of the Code of Civil Procedure but it has not followed the mandates contained therein. For proper appreciation, I quote Rule 25 of Order XLI which runs thus :--
'25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from :--Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appeal's to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate Court or extended by it from time to time.'
In terms of Rule 25 aforesaid, the Court of appeal below has jurisdiction to remand a case only where it is held that the trial Court, has omitted to frame or try any issue or to determine any question of fact which according to the appellate Court is essential for the right decision of the suit. In such an event, the appellate Court may frame issue or issues and refer the same for the trial to the Court from whose decree the appeal is preferred. In a case where the appellate Court exercises its power under Rule 25 aforesaid it must keep in mind that the suit for determination of such issue or issues only which have been framed by the appellate Court are to be decided by the trial Court and record its findings in respect thereof and thereupon the trial Court is required to return the evidence to the appellate Court together with its findings thereon and the reasons therefor. Thereafter the appellate Court, on receipt of the evidence recorded by the trial Court and the reasons recorded by it, is required to proceed with the appeal and pass judgment in accordance with the law. It is, therefore, evident that in a case where the order of remand is passed under Rule 25 aforesaid it retains with it the appeal itself and remit the matter to the trial Court for a limited purpose. Therefore, the learned appellate Court below has also not exercised the jurisdiction under Rule 25 of Order XLI of the Code of Civil Procedure in this case. It is equally pertinent to mention here that the learned appellate Court below has not properly construed Ext. 6 read with Ext. 11 as well as Ext.8 and Ext. 7 read with Ext. 11/A and has apparently committed a manifest error in framing the issues aforesaid for remanding the suit for fresh decision of the trial Court. The proper course for the Court below was to follow the mandates of Rule 24 of Order XLI of the Code in this case when the evidence was sufficient to dispose of the matter before the appellate Court. It is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made but the appeal at hand does not conform to the provisions of Order XLI Rule 23, or Rule 23-A or Rule 25 of the Code. Rule 24 of Order XLI of the Code is definitely applicable in the present case when it is admitted that there is already oral and documentary evidence on the record and in such a situation it is incumbent on the appellate Court below to decide the appeal on merit. The first appellate Court is a final Court of facts and all the questions of facts and law arising in the case were open before it for consideration and decision and it should not ordinarily remand a case under Rule 23-A to the trial Court. Such remand order leads to unnecessary delay and cause prejudice to the parties to the case. When the proper material was available before the lower appellate Court it should have itself decided the appeal one way or the other. It should have considered the various aspects of the case mentioned in the judgment of the trial Court and should have considered whether an order of the trial Court ought to be confirmed or reversed or modified. I find substance in the contention of the learned counsel for the plaintiff-appellant. The ratio of the case of Narayanan (supra) is of no help to the defendant-respondent in facts and circumstances of this case and Rule 23-A of Order XLI of the Code of Civil Procedure has no application in this case as contended by the learned counsel for the defendant-respondent.
12. In the result, this appeal is allowed and the impugned judgment is set aside. The learned appellate Court below is directed to decide afresh Title (Eviction) Appeal No. 4 of 1994 on merit in accordance with law and to apply its mind afresh after giving an opportunity of hearing to the learned counsel for both the parties within the period of three months positively from the date of receipt of this order or from the date of the filing of a copy of this order by either of the parties which ever is earlier. However, there shall be no order as to costs..