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Bhoggomanto Poddar and ors. Vs. Mudun Mohun Poddar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal923
AppellantBhoggomanto Poddar and ors.
RespondentMudun Mohun Poddar and anr.
Cases ReferredRajah Saheb Perhlad Sein v. Maharajah Rajender Kishore Singh
Excerpt:
appellate court, power of - remand order--'civil procedure code (act x of 1877), section 562--suit for possession after order under the land registration act (beng. act vii of 1876)--onus of proof. - .....fully aware of the points which they were bound, each of them, to prove. we would point out to the subordinate judge that if, on trying the appeal, he was of opinion that the evidence on the record was not sufficient to enable him to decide all the points arising out of the case, he should have kept the appeal on his own file and dealt with it in the manner provided by section 566 of the code of civil procedure. the law allows him to pass an order such as he has passed only under the circumstances stated in section 562,--that is, when the first court has decided the case on a preliminary point and not on the merits.2. we must, therefore, set aside the order of remand and direct the subordinate judge to try the case in accordance with law. so far as we are able to judge from the cases.....
Judgment:

Prinsep, J.

1. The order of the lower Appellate Court remanding this case is clearly contrary to the law. The Subordinate Judge seems to have thought that, because the issues wore not correctly framed, he was competent to draw up fresh issues and to send the case back to the first Court for retrial. No doubt the issues thus drawn up are more complete than those on which the case was tried in the first Court; but from the materials before us, it is impossible to say that there was any necessity for thus expanding the case, or that the parties before the first Court, when the case went to trial, were not fully aware of the points which they were bound, each of them, to prove. We would point out to the Subordinate Judge that if, on trying the appeal, he was of opinion that the evidence on the record was not sufficient to enable him to decide all the points arising out of the case, he should have kept the appeal on his own file and dealt with it in the manner provided by Section 566 of the Code of Civil Procedure. The law allows him to pass an order such as he has passed only under the circumstances stated in Section 562,--that is, when the first Court has decided the case on a preliminary point and not on the merits.

2. We must, therefore, set aside the order of remand and direct the Subordinate Judge to try the case in accordance with law. So far as we are able to judge from the cases cited before us, the question of limitation will probably not arise. The question is really one of title, and should be decided on evidence adduced by both sides. The plaintiffs being out of possession by order of a competent Court, that is, by order of the Collector passed under the Land Registration Act, the onus was clearly on them, in the first instance, to make out a prima facie case. But if the question of limitation arises, the lower Appellate Court should deal with it on the principles laid down by the Judicial Committee in Rajah Saheb Perhlad Sein v. Maharajah Rajender Kishore Singh 12 Moore's I.A. 336; S.C 2 B.L.R. P.C. 111.


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