SHYAM NARAYAN RAI Vs. SUBH NARAIN RAI

JUDGEMENT

(1.) Heard learned counsels representing the parties who are in agreement to get the matter finally disposed of at this stage. This is an appeal preferred against order of remand dated 27th September, 2011 passed by 1st Additional District Judge, Fast Track Court, Saran at Chapra, who framed certain issues and directed the Lower Court for retrial, in Title Appeal No. 50/2004, preferred by defendant appellant against judgment dated 16th October, 2004 passed in Title Suit No. 364 of 1995 by 5th Subordinate Judge, Saran at Chapra.

(2.) While assailing the order, it is submitted that all such issues are involved and decided by the trial court while dealing with issue Nos. 5 and 6 framed by the Trial Court. But, only on the ground that judgment of the Trial Court appears based on the submission made by learned counsels, the court below exercised its power as conferred under Rule 25 of Order 41 of the Code of Civil Procedure. Without examining the detailed judgment and arriving at any conclusion that materials on record are insufficient to decide the additional issues as suggested by the Appellate Court, whereas law as laid down under Rule 24 of Order 41 of the Code of Civil Procedure which reads as such:--

(3.) The Bar is in agreement on the principle of law that the Appellate Court is to first try to get the appeal. finally decided on the materials available and only in the event of insufficiency of evidence or possibility of any more evidence which are only possible to be adduced in the Trial Court may exercise its option to get the matter remitted to the Trial Court either under Rule 23 or 23-A or 25 of Order 41 of the Code of Civil Procedure.