KESHAB SAHU Vs. NAKULA SAHU

JUDGEMENT

(1.) THE appellants as plaintiffs filed Title Suit No. 12 of 1998 in the Court of Civil Judge (Sr. Division), Talcher for declaration of their right title over the suit land and for issuance of permanent injunction restraining the defendant -respondents from interfering with their possession over that land. The case of the plaintiffs was that the suit land described in Schedules 'A' and 'B' of the plaint originally belonged to Pitabas Sahu. On his death his four sons, Bharat, Suna, Panchu and Sudam amicably divided the said property among themselves and in such division schedule 'A' properties fell to shares of Bharat, Panchu and Suna and Schedule 'B' land fell to the share of Sudam.

(2.) THE defendant -respondents denied the plaint averment regarding sale of the suit land by plain paper sale deeds to plaintiffs or their ancestors and the possession of the plaintiff -appellants over the same. They also denied acquisition of title by the plaintiff -appellants over the suit land by way of adverse possession. The defendants further challenged the maintainability of the suit on the ground of limitation, lack of cause of action, non -joinder of necessary parties and principle of res -judicata.

(3.) MR . N.R. Rout, learned Counsel for the appellants submits that the additional issues Nos. 2 and 3 relate to acquisition of title through the un -registered sale deeds and through adverse possession but these aspects were discussed in details by learned trial Court while deciding Issue No. 5. He further states that additional Issue No. 1 relating to the relationship of landlord and tenant in respect of the Schedule 'A' proper was nobody's case and therefore, such an issue was/is not necessary for adjudication of the suit. Mr. Rout further contends that even if the first appellate Court felt that some necessary issues had not been framed by learned trial Court, but evidence were available on record on those aspects, then it could have framed those issues and decided the same on the evidence available on record or if such evidence were not sufficient to adjudicate the issues it could have directed learned trial Court to record evidence of the parties on those issues and submit such evidence to the first appellate Court for adjudication of the issues. According to him, not adopting the above noted course and making open remand of the suit to the trial Court for fresh disposal was against the norms of Order 41 Rule 23 A or 25 of the C.P.C. In support of his plea Mr. Rout cited the case of Ashwinkumar K. Patel v. Upendra J. Patel and Ors. : AIR1999SC1125 and the unreported case of Sarat Chandra Sahu v. State of Orissa and Anr. in RSA No. 445 of 2006 of this Court.