MAHENDRA CHOUDHARY Vs. INDRASAN DEVI ALIAS RUDRASAN DEVI

JUDGEMENT

(1.) THIS miscellaneous appeal is directed against the judgment dated 1.8.1994 passed by 5th Additional Distill Judge, Muzaffa, pur, in title appeal No. 7/78 whereby the judgment of the trial Court dated 17.10.1977 passed by Additional Sub-Judge, Muzaffarpur, in title Suit No. 54/74/3/77 was set aside and the suit was remanded to the lower Court for fresh decision.

(2.) THE plaintiffs of the suit are the appellants here. THE plaintiffs of the suit had sought declaration of their right and title over the suit plot and they had also sought recovery of possession with mesne profit. So far as the material issue relating to title of the plaintiff-appellants is concerned the trial Court decided the issue in favour of the plaintiff-appellants; but fresh issue was recast at the fag end of the trial and after close of all the evidence to the effect whether the suit had abated on account of notification under Section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. This was issue No. 5 of the suit. THE trial Court held that the suit had abated in view of Section 4C of the aforesaid Act and the plaintiffs were not entitled to any relief and, accordingly, the suit was dismissed. THE appellate Court concurred with the findings of the trial Court, who remanded the suit for fresh decision on issue No. 5, because this issue was contested by the plaintiff-appellants and it was averred by them that the suit-lands were exempt from notification under Section 3 of the Act because of the nature of the lands. However, the aforesaid judgment of the appellate Court is challenged on the ground that when the material issues decided in favour of the plaintiff-appellants, the appellate Court had no authority to remand the suit after setting aside the judgment of the trial Court, specially when there was no cross-objection by the defendant-respondents against the findings which went in favour of the appellants. So, the absolute remand order passed by the appellate Court was illegal and bid in law.

(3.) IN the result, with this clarification and direction, this appeal is dismissed because the order of remand which has been challenged in this appeal was, perhaps, made on the prayer of the plaintiff-appellants themselves.