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Amrita Lal Mandal and ors. Vs. Bhutnath Mandal and ors. and Aukhoy Kumar Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in41Ind.Cas.735
AppellantAmrita Lal Mandal and ors.
RespondentBhutnath Mandal and ors. and Aukhoy Kumar Mandal and anr.
Excerpt:
civil procedure code (act v of 1908), order xli, rules 23, 25 - suit for declaration of title and possession--title not proved in trial court--appellate court holding title proved, whether can remand case--remand, legality of. - .....land.2. the court of first instance found that the plaintiffs had failed to establish their title to the land. it also found that the defendants nos. 1 and 2 had been in possession of the land for a long time and that the plaintiffs had never been in possession. the plaintiffs preferred an appeal and the learned subordinate judge came to the conclusion that the plaintiffs had proved their title. after stating this decision he went on to say that the judgment of the first court had not dealt with the matter of limitation and possession, and accordingly lie sent the case back to the first court for decision of five issues after recording such evidence as the parties might think fit to adduce. of the live issues mentioned, 1st and 10th are merely formal, 9th depends upon the decision.....
Judgment:

Walmsley, J.

1. The plaintiffs in this suit sought for a declaration of title to and recovery of possession of a certain land.

2. The Court of first instance found that the plaintiffs had failed to establish their title to the land. It also found that the defendants Nos. 1 and 2 had been in possession of the land for a long time and that the plaintiffs had never been in possession. The plaintiffs preferred an appeal and the learned Subordinate Judge came to the conclusion that the plaintiffs had proved their title. After stating this decision he went on to say that the judgment of the first Court had not dealt with the matter of limitation and possession, and accordingly lie sent the case back to the first Court for decision of five issues after recording such evidence as the parties might think fit to adduce. Of the live issues mentioned, 1st and 10th are merely formal, 9th depends upon the decision of the main issues and 2nd and 4th are technical. We have not been shown any reason for supposing that any importance is attached to them. It appears to me that the learned Subordinate Judge ought to have considered the evidence himself and come to a conclusion upon the question of possession and limitation and that it was not only wholly unnecessary bat not in accordance with the procedure laid down in the Code for him to remand the case to the first Court. I think, therefore, that this appeal should be allowed and the appeal preferred by the plaintiffs against the judgment of the Munsif should be sent back to the lower Appellate Court for decision in accordance with law.

3. The appellants will get their costs of this appeal. We assess the hearing fee at one gold mohur.

Greaves, J.

4. I agree.


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