Bidesi Bagarty Vs. Jogendra Sahu and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 10. upon hearing the parties, i am of the view that when the lower appellate court found that further materials were necessary to do proper justice to the case effectively, it should have framed the issue and refer the same to trial court to record the findings.b.p. das, j.1. this miscellaneous appeal is directed against the judgment and decree dated 10.1.2000 and 20.1.2000 respectively passed by the district judge, balangir in title appeal no. 25 of 1996. while disposing of the said appeal, the appellate court set aside the judgment and decree passed by the civil judge (senior division), balangir in title suit no. 65 of 1992 and remitted the suit to the trial court with the following direction :'to frame an additional issue to the effect whether there was partition between satya and baji. and whether in such partition part of the suit land measuring ac. 0.62 decimals corresponding to 1936 settlement plot no. 582 fell to the share of baji and to decide the said issue by giving opportunities to the defendants to lead further evidence. the plaintiff shall in no circumstance be allowed to participate in the hearing of the fresh issue. after evidence in the new issue is received, the trial court is to decide the suit afresh on the basis of the evidence already on record and also the new evidence.'3. the brief facts leading to this case are that the present appellant filed the aforesaid suit for declaration of his right, title and interest and confirmation of possession over the suit land. the specific case of the plaintiff is that the suit land along with other lands was the ancestral property of the plaintiff and defendants 3 to 6 and was recorded jointly in the names of their ancestors, i.e.. satya and baji in the previous settlement. while the plaintiff and defendants 3 and 4 (respondents 3 and 4) belong to the branch of satya, defendants belong to the branch of baji. satya and baji effected partition amongst themselves by metes and bounds long ago and possessed their respective shares of land separately, but the record of holding continued to remain joint.4. the plea of defendants 5 and 6 before the trial court was that prior to the settlement of 1936 satya and baji partitioned their properties and thereby they were possessing and enjoying their respective shares of land separately.5. according to the learned counsel for the appellant, defendants 3 and 4. who belong to the branch of satya, filed their written statement stating therein that there was no partition between satya and baji. the respective parties led evidence and exhibited documents in support of their respective pleadings. the trial court decreed the suit on contest declaring the right, title and interest of the plaintiff over the suit land and confirming his possession therein. the trial court while decreeing the suit also found that there was no effective partition amongst the members of the plaintiffs family and on the other hand, the joint recording of record of rights in 1976 settlement shows that the family properties are joint in nature.the aforesaid decree was challenged by defendants 1. 2. 5 and 6. the appellate court relied upon the plea of defendants 3 and 4 taken in their written statement that there was no partition between satya and baji and ultimately held that the defendants 3 and 4 filed their written statement at a belated stage and no issue was framed on the question of partition between satya and baji. it was further held that as there was no issue as regards the previous partition, none of the parties could lead any evidence in that direction. as the question of partition between satya and baji has not been decided by the trial court, the appellate curt set aside the judgment, and decree and directed for rehearing of the suit on the question of partition between satya and baji and allotment of suit plot no. 582 measuring an area of ac. 0.62 decimals in favour of baji. the appellate court while making the aforesaid direction for rehearing estopped the plaintiff from participating in the hearing on the fresh issue.6. according to the counsel for the appellant, the plaintiff- appellant will suffer irreparable loss if the hearing of the suit proceed without giving a chance of hearing to him. according to him when there is a positive finding of the appellate court that no issue has been framed to the effect whether there was a partition between satya and baji, which is necessary for just decision of the aforesaid suit, the plaintiff should also be given the chance of participating in the proceeding.7. on a perusal of the lower court record, 1 find that the specific claim of the plaintiff is that he has exclusive title over the suit land as in the first partition between satya and baji. the suit land fell to the share of satya and in the later partition between himself and defendants 3 and 4, the suit land fell to his share and he is in exclusive possession of the same.8. by the impugned judgment, the appellate court in disposing of an application filed by defendants 1. 2. 5 and 6 for acceptance of a map of 1936 settlement in regard to the suit land as additional evidence granted liberty to those defendants to prove the said map in the trial court while adducing evidence.9. mr. mishra, learned counsel for the appellant contends that the appellate court while remanding the matter to the trial court and allowing the defendants to prove certain documents in leading evidence should not have disallowed the plaintiff to participate in the hearing and there is no cogent reason for giving such a direction.10. upon hearing the parties, i am of the view that when the lower appellate court found that further materials were necessary to do proper justice to the case effectively, it should have framed the issue and refer the same to trial court to record the findings. there was no justification to vacate the judgment of the trial court and remand the entire litigation for fresh determination (see a.i.r. 1971 orissa 303 : basanta misra and ors. v. laxmi alias jagyaseni misrani).11. accordingly, the impugned order is set aside; the appellate court is directed to maintain the appeal in its file and frame an additional issue regarding the question of partition of the property between satya and baji and refer the same to the trial judge to return a finding on the same issue within a time frame and thereafter decide the appeal on its own merit. it goes without saying that while deciding the aforesaid issues, all the parties shall be given opportunity of hearing and adducing evidence by the trial judge.