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Bishnu Putel Vs. Bajra Putel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 69 of 1963
Judge
Reported inAIR1964Ori250
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rules 23 and 27
AppellantBishnu Putel
RespondentBajra Putel
Appellant AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Respondent AdvocateG. Rath, Adv.
DispositionAppeal dismissed
Cases ReferredSankaramiah v. M. S. Lakshminarayanamoorthy
Excerpt:
.....to adduce that evidence, the caw should not be remanded to give a second chance to the party to adduce that evidence. in a recent decision their lordships of the supreme court laid down that power to order retrial after remand, where there has already been a trial on evidence before the court of first instance, cannot be exercised merely because the appellate court is of the view that the parties who could lead better evidence in the court if first instance have failed to do so......the plaintiff, defendant and others belonged to one joint famaily. there was a separation. the suit plot is said to have been noted in plaintiff's possession in 1936 settlement and the plaintiff has been paying rent. the note in the record-of-rights ext. 4 is 'jami o. faldakhal bishnu putel.' in 1954 the plaintiff obtained a separate parcha with regard to plot 731 and other plots, and the plaintiff is paying the rent separately -- a rent receipt being ext. 6 series. the defendant is said to have cut away trees from the suit land and threatened to dispossess the plaintiff. thereupon on march 17, 1959 the plaintiff filed this suit for reliefs aforesaid. the defence is that the disputed portion did not relate to plot 731 as alleged : that the defendant is in possession of the disputed.....
Judgment:

S. Barman, J.

1. Plaintiff is the appellant. The suit out of which this appeal arises was filed by the plaintiff for declaration of the plaintiff's title to and confirmation of possession or alternatively recovery of possession of the suit land, and damages. The suit related to 40 decimals out of total 93 decimals in plot No. 731.

2. The plaintiff's case is this: The plaintiff, defendant and others belonged to one joint famaily. There was a separation. The suit plot is said to have been noted in plaintiff's possession in 1936 Settlement and the plaintiff has been paying rent. The note in the record-of-rights Ext. 4 is 'Jami O. Faldakhal Bishnu Putel.' In 1954 the plaintiff obtained a separate Parcha with regard to plot 731 and other plots, and the plaintiff is paying the rent separately -- a rent receipt being Ext. 6 series. The defendant is said to have cut away trees from the suit land and threatened to dispossess the plaintiff. Thereupon on March 17, 1959 the plaintiff filed this suit for reliefs aforesaid. The defence is that the disputed portion did not relate to plot 731 as alleged : that the defendant is in possession of the disputed portion.

3. The trial Court decreed the suit in favour of the plaintiff on the finding that the disputed area relates to plot 731 and that the plaintiff has title and possession. In appeal, the learned lower appellate Court dismissed the suit an the finding that the disputed portion does not relate to plot No. 731; that the plaintiff failed to prove possession thereof. Hence this Second appeal.

4. The plaintiff appellant relied on the record-of-rights Ext. 4 in the Current Settlement of 36 and also the separate Parcha Ext. 5 of 1954 showing the plaintiff's possession of plot No. 731. The plaintiff also relied on Ext. 6 series rent receipts from 1958 to 1961. These documents however do not support his claim to the disputed portion of plot No. 731. The rent receipts Ext. 6 series have also no: value because the dispute between the parties started in 1954 and obviously these rent receipts between 1958 and 1961 were created for the purpose of this suit. These documents therefore do not help the plaintiff in fixing the identity of the disputed portion as part of plot No. 731. The plaintiff also relied on the evidence of the defendant as D.W. 1, D.W. 2 and D.W. 4 as having admitted the plaintiff's possession. There is however no force in this contention because the evidence does not show that it refers to the disputed portion of plot No. 731.

5. The point is; Did the plaintiff succeed in proving that the disputed portion is a part of plot No. 731? The onus is on the plaintiff to prove that the disputed portion is part of plot No. 731 and indeed a specific issue was raised before the trial Court, namely -

'Is the suit land a part of plot No. 731 of holding No. 28?'

It appears from record that the defendant had applied before the trial Court for appointment of an Amin Commissioner to locate the suit land. The plaintiff objected to this petition of the defendant for appointment of Amin Commissioner. The trial Court by his order dated March 27, 1961 rejected the defendant's application for appointment of Commissioner.

6. In course of hearing of this appeal it was submitted on behalf of the plaintiff that the case should be remanded for a finding whether the disputed 40 decimale relate to plot No. 731 and that a Commissioner should be appointed for ascertaining the position. In my opinion after the plaintiff himself had opposed the defendant's application for appointment of a Commissioner by the trial Court, it is not open to the plaintiff now at this stage to ask for remand of the case for ascertaining the location of the disputed property by a Commissioner. It is well settled that a remand should not, generally speaking, be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. The mere fact that the evidence on record is not sufficient to enable the Court to come to a definite finding on the point in issue is not sufficient to enable the Court to remand the case, when there is no reason to think that the parties did not have an opportunity of producing all the evidence that they desired to produce before the trial Court.

There is a clear danger that in such cases a remand order may in effect be an invitation to perjury. The mere fact that a plaintiff might have been better advised to apply for a Commission at the trial of the suit would not itself warrant the issuing of a commission by the appellate Court. Where the appellate Court ought not to give facilities for adducing further evidence, the fact that the Court desires to do so cannot give it jurisdiction to set aside the decree of the Court below and remand the case for retrial. Where the party had an opportunity of adducing evidence in the case but with open eyes failed to adduce that evidence, the caw should not be remanded to give a second chance to the party to adduce that evidence. The policy of the law is that, once the matter has been fairly tried between the parties, it should not, except in special circumstances be reopened and retried. In a recent decision their Lordships of the Supreme Court laid down that power to order retrial after remand, where there has already been a trial on evidence before the Court of first instance, cannot be exercised merely because the appellate Court is of the view that the parties who could lead better evidence in the Court if first instance have failed to do so. A Sankaramiah v. M. S. Lakshminarayanamoorthy, 4 S. C. Note (Note No.) 415.

In this view of the position on the facts and circumstances of the case, I do not accept the plaintiff's submission that the case should be remanded.

7. The decision of the learned lower appellate Court is upheld. This appeal is dismissed with costs.


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