Skip to content


Kaniz Sughra Bibi Vs. Masih-un-nissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1921)ILR43All377
AppellantKaniz Sughra Bibi
RespondentMasih-un-nissa Bibi and ors.
Excerpt:
.....nd..........adverse to that of the plaintiff's vendors more than 12 years prior to the institution of this suit. upon this finding the lower appellate court has set aside the decree of the trial court and has once more passed an order of remand under order xli, rule 23, of the code of civil procedure, directing the trial court to dispose of the suit on the merits, the issue of limitation being finally determined in favour of the plaintiff. the appeal before us is against this order of remand. the first point taken is that the court of first instance had found that the defendants had been in adverse possession and that this finding had been uphold by the lower appellate court before the second appeal to this court was filed. in effect we are asked to reconsider the correctness of the order of.....
Judgment:

Piggott and Walsh, JJ.

1. The plaintiff in this case sued for possession over a half share in a certain house. The defendants pleaded that, whether or not the plaintiff had a good title neither she nor the transferors from whom she claimed had been in possession within 12 years of the institution of the suit. They further pleaded that they themselves had been in adverse possession for more than 12 years prior to the institution of the suit. The first court dismissed the suit as barred by limitation and that finding was upheld by the court of first appeal. On second appeal a learned Judge of this Court held that the decision of the two courts below had proceeded upon an erroneous view of the law. He treated the finding of the lower appellate court as amounting to nothing more than a finding that the plaintiff and her transferors had not been in actual possession within 12 years of the institution the suit. He held that it had not yet been determined whether the plaintiff's transferors had been ousted by the defendants so as to set limitation running in favour of the latter and against the plaintiff and her transferors. On this view he set aside the decision of the lower appellate court and remanded the case to that court under Order XLI, Rule 23, of the Code of Civil Procedure for a decision on the merits. The lower appellate court has now recorded a finding that the defendants have failed to prove ouster; i.e., the defendants have not satisfied the lower appellate court that their possession had become adverse to that of the plaintiff's vendors more than 12 years prior to the institution of this suit. Upon this finding the lower appellate court has set aside the decree of the trial court and has once more passed an order of remand under Order XLI, Rule 23, of the Code of Civil Procedure, directing the trial court to dispose of the suit on the merits, the issue of limitation being finally determined in favour of the plaintiff. The appeal before us is against this order of remand. The first point taken is that the court of first instance had found that the defendants had been in adverse possession and that this finding had been uphold by the lower appellate court before the second appeal to this Court was filed. In effect we are asked to reconsider the correctness of the order of remand passed by the single Judge of this Court when disposing of the second appeal. There is authority for the proposition that, where a Judge of this Court has remitted issues under Order XLI, Rule 25, of the Code of Civil Procedure, and the appeal subsequently comes up for disposal before another Judge, or a Bench of this Court differently constituted, the Bench which is seised of the appeal and on which the law casts the burden of finally disposing of the same is not bound by the order remitting the issue? It can consider the question whether that order was a proper one and, if it comes to the conclusion that that order should never have been passed, it can ignore the findings on the remanded issues and any evidence which may have been taken after the order remitting the said issues. The reason for this is obvious. No appeal lies against the order remitting issues, nor does that order dispose of the pending appeal. Consequently the tribunal which undertakes the responsibility of finally disposing of the appeal is seised of the entire case and has jurisdiction to reconsider the propriety of an interim order, such as that remitting issues, passed by another Judge or by a Bench differently constituted. In the present case the single Judge of this Court disposed of the appeal then pending before him finally by means of his order of remand, which was not under Order XLI, Rule 25, but under Order XLI, Rule 23, of the Code of Civil Procedure. We have no responsibility for the result of that appeal. The decision of the single Judge of this Court could have been challenged by appeal under the Letters Patent and was not so challenged. The principle laid down in Section 105, Clause (2), of the Code of Civil Procedure, which prohibits a party, after submitting to an order of remand from which an appeal lay, from disputing its correctness at a later stage, applies also to the case now before us. We are satisfied that the appellant is not entitled to challenge the correctness of the order of remand passed by this Court on the second appeal. As the case stands, this finding disposes of the appeal before us. Whatever may have happened previously, the lower appellate court has now recorded a finding that adverse possession for 12 years prior to the institution of the suit is not proved on behalf of the defendants. That is a finding of fact which cannot be successfully impugned on any of the grounds taken in the memorandum of appeal before us. This appeal, therefore, fails and we dismiss it accordingly with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //