BHAGI MAYA GURUNG Vs. MAHINDRA GURUNG

JUDGEMENT

(1.) The present revision petition challenges the Order passed by the learned District Judge dtd. 9/11/2022 (impugned order) in Title Appeal No. 03 of 2020 remanding the matter for fresh disposal on merits without reversing the decree in appeal. The revision petition therefore, raises an important question on the scope of Order XLI Rule 23A of the Code of Civil Procedure, 1908 (CPC).

(2.) Title Suit No.12 of 2018 was preferred by the revisionists/plaintiffs against the respondents/defendants. The Trial Court framed 16 issues on 9/7/2019 and proceeded to take evidence. The revisionists/ plaintiffs examined four witnesses. The respondent nos. 1 to 10/defendant nos. 1 to 7 examined seven witnesses. The defendant no.11 examined three witnesses. Various documentary evidences were also exhibited by the parties. The learned Trial Judge after examining the issues rendered her judgment and passed the decree both dtd. 24/12/2019. Title Appeal No. 03 of 2020 was thereafter, preferred by the respondent nos. 1 to 10/defendant nos. 1 to 10.

(3.) The impugned order records the rival submission of the learned counsel for the parties. It was neither the contention of the revisionists/plaintiffs nor the respondents/defendants that they had failed to understand the issues framed or were confused on whom the burden of proving the same lay. However, by the impugned Order dtd. 9/11/2022 the learned District Judge concluded that though 16 issues have been framed, the learned Trial Judge had failed to fix the onus upon the parties and therefore, the parties had adduced their evidence without onus being fixed. The learned District Judge was also of the opinion that for certain contentions raised by the parties i.e. the contention of the revisionists/plaintiffs that the suit land was stridhan of their late mother; contention of the respondent nos. 1 to 10/defendant nos. 1 to 10 that the suit land was self acquired property of their late father; and the contention of the performa respondent no.11/defendant no.11 that the suit land was mutated following due process of law, proper evidence was not placed before the learned Trial Judge owing to which it is difficult for the Appellate Court to decide the appeal. In such circumstances, the learned District Judge resorted to the provisions of Order XLI Rule 23A of the CPC and remanded the matter to the Trial Court for fresh disposal on merits. The learned District Judge directed the Trial Court to reframe the issues, if required, for adjudication fixing onus upon the parties, conduct the trial to ascertain the issues, and to dispose the case within a period of 6 months from the date of first appearance of the parties.