SABITRI DEVI Vs. SRIKRUSHNA ACADEMY

JUDGEMENT

(1.) THE judgment dated 25.6.2001 passed by Additional District Judge, Jagatsinghpur in Title Appeal No.95 of 1995/T.A. No.53 of 1997 setting aside the judgment and decree dated 15.7.1995 and 31.7.1995 respectively passed by Civil Judge (Senior Division), Jagatsinghpur in Title Suit No.49 of 1988 and remitting the suit for de novo disposal is assailed in this Miscellaneous Appeal filed under Order 43, Rule 1(a) of the Civil Procedure Code.

(2.) THE appellant, as plaintiff, filed Title Suit No.49 of 1988 in the Court of the then Subordinate Judge, Jagatsinghpur, inter alia, praying for passing a decree, declaring entry of the name of the defendant No.1 (Srikrushna Academy, Jagatsinghpur) in the Hal settlement record of rights in respect of the suit schedule properties as illegal, for declaration of title of the plaintiff over the said lands and also directing for preparing the Hal record of rights in his name and to restrain defendant Nos.1 to 5 permanently from interfering with the peaceful possession of the plaintiff over the suit land as well as for other ancillary reliefs. In the plaint it was averred that Sk. Taju Mohammad and others were the exclusive owners of the suit property, and that the same were sold in Execution Case No.1003/47 -48 and was purchased by the plaintiff in a Court sale on 25th March, 1949. The same was confirmed on 28th April, 1949, which was handed over to the plaintiff and from the said date, the plaintiff was in peaceful possession of the lands as rightful owner thereof. He had also alienated a portion of the lands purchased by him. Defendant No.1, it is alleged, taking advantage of the erroneous recording made in the Hal Settlement Records, was trying to disturb in his possession, consequently, the plaintiff was constrained to file the suit.

(3.) ON the basis of the pleadings, the trial Court framed as many as nine issues. The plaintiff in order to substantiate his case, got examined five witnesses and exhibited 12 documents. On behalf of the defendants, neither any oral nor any documentary evidence was adduced. The trial Court after vivid discussion of the evidence both oral and documentary answered all the issues in favour of the plaintiff except issue Nos.1,3 and 9 and dismissed the suit. Being aggrieved, the plaintiff filed an appeal before the learned Addl. District Judge, Jagatsinghpur. The said appeal was confined only to the findings arrived at by the trial Court in respect of issue Nos.1,3 and 9. It is pertinent to mention here that though other issues were answered in favour of the plaintiff, no appeal or cross -objection was filed by the defendants. However, a petition under Order 41, Rule 27, C.P.C. was filed for adducing additional evidence before the appellate Court. The appellate Court it is submitted without appreciating the evidence, arrived at the conclusion that the trial Court had committed an error apparent on the face of the records and remanded the suit to the Court below with a direction to give adequate opportunity to the respondents to examine their witnesses and to produce documents, if any. The petition filed by the defendants -respondents for acceptance of three documents as additional evidence was also rejected by the appellate Court.