JUDGMENT

Vishnudeo Narayan, J.

1. This appeal at the instance of the defendant-appellant has been preferred against the impugned judgment and decree dated 23.9.2002 and 25.11.2002 respectively passed in Title Appeal No. 24 of 1994, 24 of 2001 by Shri Ashok Kumar Chand, 6th Additional District Judge, Hazaribagh whereby and whereunder the judgment and decree of the trial Court passed in Title Suit No. 76 of 1999 were set aside and the appeal was allowed and the case was remitted to the trial Court fora fresh decision.

2. The plaintiff-respondent had filed the said title suit for declaration of his title in respect of 1-2/3 decimals of land out of Plot No. 415 appertaining to Khata No. 53 situate in Village- Okni, PS-Sadar, District-Hazaribagh and also for a declaration that the sale deed dated 28.5.1982 in favour of defendant No. 1 executed by Defendant Nos. 2 to 5 in respect of entire five decimals of land of Plot No. 415 aforesaid is null and void besides issuance of permanent injunction restraining the defendant from interfering in her possession over the suit land.

3. The case of the plaintiff, in brief, is that Khata No. 53 having an area of 1.35 acres stands recorded in the Survey Records of Right in the name of Sukar Mian, Emaman Mian and Mannu Mian having equal share each and Plot No. 415 having an area of 5 decimals appertains to Khata No. 53 aforesaid Mannu Mian aforesaid died issueless leaving behind his widow Utiman Bibi. who executed an unregistered deed of gift in favour of Md. Ismail and Abdul Subhan, sons of Emaman Mian in respect of her one third interest of the land of Khata No. 53 on 10.8.1962 and the donees aforesaid came in possession over the same and thus their interest in Khata No. 53 swelled to two-third interest Ismail Mian aforesaid executed a registered deed of gift on 6.3.1976 in respect of his one-third interest in the land of Khata No. 53 in favour of his son Eqbal Hussain and thereafter Eqbal Hussain executed a sale deed dated 23.3.1984 for a consideration of Rs. 19,000/- in favour of plaintiff in respect of 1-2/3 decimals of land of his share out of Plot No. 415 and the plaintiff came in actual physical possession over 1-2/3 decimals of land aforesaid which is the suit land in this case and the plaintiff also constructed one room thereon and she thereafter applied for mutation of the suit land in her favour before the Khas Mahal Authority but the said mutation case has been stayed. It is alleged that the defendant No. 1 without any right, title and interest and possession started interfering with the peaceful possession of the plaintiff in respect of the suit land on the basis of a forged, fabricated, sham and void sale deed dated 28.5.1982 executed by defendant Nos. 2 to 5 in her favour and defendant Nos. 2 to 5 had no right, title and interest or possession to transfer entire Plot No. 415 having an area of five decimals in favour of defendant No. 1.

4. The case of the defendant No. 1, inter alia, is that it is false to say that Utiman Bibi had executed an unregistered deed of gift in favour of Md. Ismail and Abdul Subhan and the said deed of gift dated 10.8.1962 is an antedated, forged and fabricated document and Utiman Bibi did not derive one-third interest in the land of Khata No. 53 and she has also no right to execute such a deed of gift. It is alleged that the land of Khata No. 53 was never partitioned by metes and bounds between the legal heirs of the recorded tenants and it is still joint. Her further case is that the registered deed of gift dated 6.3.1976 executed by Ismail Mian in favour of his son Eqbal Hussain has never been acted upon and similarly the sale deed dated 27.6.1955 executed by Sukar Mian in favour of his son Suleman Mian in respect of his one-third interest in the land of Khata No. 53 has also not been acted upon. Ismail Mian has never derived title in respect of one-third interest in the land of Khata No. 53 alone and hence he had no right to execute the deed of gift to the extent of his one-third interest in favour of his son Eqbal Hussain and the deed of gift is invalid, inoperative and void and thus Eqbal Hussain has no right to execute the sale deed in favour of plaintiff which is invalid, inoperative, void and without consideration and plaintiff has never come in possession over the suit land nor has she derived any right, title and interest therein. The defendant has also denied the construction of one room by the plaintiff over the suit land. The further case of the defendant No. 1 is that she has acquired entire five decimals of Plot No. 415 by virtue of the sale deed dated 28.5.1981 executed by defendant Nos. 2 to 5 and defendant No. 8 for a consideration of Rs. 15,000/- and she is in possession over the Plot No. 415 and she stands mutated in respect thereof and paying rent to the State and defendant Nos. 2 to 5 and defendant No. 8 has full right to transfer Plot No. 415 in favour of defendant No. 1.

5. In view of the pleadings of the parties, the learned trial Court had framed the followings issues for adjudication in this suit :--

(i) Has the plaintiff got any cause of action for the suit?

(ii) Is the suit maintainable in its present form?

(iii) Is the suit barred by-law of estoppel, waiver and acquiescence?

(iv) Is the suit barred by Specific Relief Act?

(v) Is the suit bad for non-joinder and misjoinder of necessary parties?

(vi) Has the plaintiff got any right, title and interest in suit land?

(vii) To what relief or reliefs, the plaintiff is entitled?

6. In view of the oraland documentary evidence of the record, the learned trial Court had decided all the issues framed by it and while deciding issue Nos. (vi) and (ii) it has been held that Utiman Bibi could not have succeeded the entire share of her husband i.e. 1-2/3 decimals in the suit plot and she could have succeeded 1/8th share in the property of her husband and 7/8th share had been to other legal heirs of Mannu Mian and thus Utiman Bibi cannot be the owner of the 1-2/3 decimals of Plot No. 415 and she has no right to execute a deed of gift in respect of one-third share of her husband and thus the gift (Ext. 13) executed by Utiman Bibi in favour of Ismail Mian and Abdul Subhan cannot be said to be a valid document. It has also been held that the share of Ismail Mian in the suit plot shall be 11/48 and similarly the share of Abdul Subhan will be 11/48 in suit plot and thus Eqbal Hussain has no right to execute the sale deed in respect of 1-2/3 decimals out of Plot No. 415 in favour of plaintiff which can not be given effect to and on the basis of the said sale deed the plaintiff cannot derive any right, title and interest in Plot No. 415 and issue Nos. (vi) and (ii) were accordingly decided against the plaintiff and the suit of the plaintiff was dismissed.

7. Being aggrieved by the judgment and decree of the trial Court, the plaintiff preferred Title Appeal No. 24 of 1994. The learned appellate Court below on re-appraisal and re-appreciation of the evidence on the record set aside the judgment of the trial Court and allowed the appeal and remitted the case back to the trial Court for a fresh decision. In para-14 of the impugned judgment the appellate Court has stated that it is not a well discussed and well reasoned judgment as it requires for determination of the fact to which of the two versions i.e. of the plaintiff as well as of the defendant is acceptable by the Court and how the evidence adduced on behalf of the plaintiff is unreliable which is not very clear and still the lower Court appears to have given its finding that the possession of the plaintiff over 1-2/3 decimals of Plot No. 415 is unlawful possession. Adverting to the finding of the trial Court appearing in para-29 of its judgment, it has been held that it appears to be self-contradictory and the learned Court below should have kept in mind very clearly that in the plaint one relief claimed by the plaintiff is that the sale deed of defendant No. 1 be declared null and void and then in that view of the matter, the finding of the learned Court below that it did not explain the shares and interest of the vendors of defendant No. 1 goes to show that the sale deed in favour of defendant No. 1 did not inspire confidence to the lower Court and without explaining the share and interest of vendors of defendant No. 1, the sale deed executed in favour of defendant No, 1 might have been declared null and void but the learned trial Court did not give any such declaration and did not allow the suit in part creates vague, erroneous and contradictory finding in the impugned judgment of the trial Court.

8. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant-appellant that the impugned order of remand is erroneous and it is neither within Rules 23, 23-A and 25 of Order XLI of the Code of Civil Procedure and the learned appellate Court below has not recorded a finding that re-trial of the suit is necessary while reversing the judgment of the trial Court. It has further been submitted that it is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made. It has further been contended that Rule 24 of Order XLI, CPC is applicable in the present case as the evidence of the parties was on the record to decide the matter in controversy and it was incumbent upon the appellate Court below to decide the appeal on merit. It has also been submitted that the appellate Court below should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Order XLI, CPC as an unwarranted order of remand gives the litigation an underserved lease of life and it should be avoided. It has further been submitted that the lower appellate Court should not have remanded this case merely because it considers the reasoning of the trial Court to be wrong or self-contradictory; and when the material was available before the lower appellate Court it should have itself decided the appeal one way or the other and it could have considered the various aspects of the case mentioned in the order of the trial Court and would have considered whether the order of the trial Court ought to be confirmed or reversed or modified. In support of his contention reliance has been placed upon the ratio of the cases of Ashwin Kumar K. Fatel v. Upendra J. Patel and Ors., AIR 1999 SC 1125, Pasupuletl Venkateswarlu v. The Motor and General Traders, AIR 1975 SC 1409, Shrimati Kartar Devi v. Snrimati Pramila Das, 1993 (1) PLJR 576, Awadhesh Kumar Mishra and Ors. v. Sona Devi and Ors., 2003 (4) PLJR .810, and Kailashpati Narain Singh and Ors. v. Bhola Sonani and Ors., AIR 1980 Pat 111. Lastly, it has been contended that the impugned judgment is, therefore, unsustainable.

9. In contra, it has been submitted by the learned counsel for the plaintiff-respondent that the impugned order of remand of the appellate Court below is within the ambit of Rule 23-A of Order XLI, CPC and there is no illegality or infirmity in the impugned judgment of remand after setting aside the judgment and decree of the trial Court on the ground that the finding of the trial Court is self-inconsistent and contradictory. It has further been submitted that for according relief to the plaintiff regarding declaration of the sale deed dated 28.5.1981 executed in favour of the defendant No. 1 as void, the trial Court had to decide the shares of the descendants of the recorded tenants of Plot No. 415 and since the trial Court in the impugned judgment has not addressed in respect thereof and as such the lower appellate Court had no option but to remand the case for redetermination of the matter. It has further been submitted that the ratio of the cases of Ashwin Kumar K. Patel (supra), Pasupuleti Venkateshwarlu (supra), Shrimati Kartar Devi (supra), and Awadhesh Kumar Mishra and others (supra) relied upon by the defendant-appellant has no application in this case.

10. It is relevant to mention at the very outset that a Court of appeal has a power to remand a case only under Order XLI, Rule 23. Rule 23-A and Rule 25 of the Code of Civil Procedure. Rule 23 aforesaid has no application in the context of this case. Rule 23-A, which provides for a remand by the appellate Court hearing an appeal against the decree, has been inserted in Order XLI of the Code of Civil Procedure by the Amending Act, 1976 and prior to that it was the settled position of law that the Court in an appropriate case would exercise its inherent jurisdiction under Section 151 CPC to order an remand if such remand was considered pre-emanatory necessary ex debito justitiae though not covered by any specific provision of Order XLI, CPC. For proper appreciation, I quote Order XLI, Rule 23-A which reads as follows :--

"23-A. Remand in other cases.--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23."

From a bare perusal of the aforementioned provision, it is evident that in order to invoke the jurisdiction of the appellate Court in terms thereof a decree passed by the learned trial Court has to be reversed in appeal and a re-trial must be considered necessary and the conditions aforesaid being satisfied the appellate Court can exercise the same power to remand under Rule 23-A as under Rule 23. All the cases of wholesale remand are, therefore, covered by Rules 23 and 23-A. It is pertinent to mention at this stage that the operative portion of the impugned judgment does not show that the learned appellate Court has held that the re-trial of the suit is necessary. Furthermore, the learned appellate Court below in the impugned judgment has also not reversed all the findings of the learned trial Court. For the sake of clarity, I quote the relevant excerpt from para-14 of the impugned judgment :--

"In the facts and circumstances discussed above, the impugned judgment dated 4.3.1994 passed by the learned, 1st Additional, Munsif, Hazaribagh is hereby set aside and the case is remanded back to the learned Court below for giving a fresh decision after hearing both sides and after giving sufficient opportunity to both sides to be heard and the learned Court below for argument will take a decision of his own in accordance with law without being prejudiced to this observations of this judgment of the appellate Court, on the basis of evidence oraland documentary and all such materials available on record."

In this view of the matter, evidently Order XLI of the Code of Civil Procedure has no application. The appellate Court below has also not adverted under Rule 24 of Order XLI, CPC for the reasons best known to him in this case. The proper course for the Court below was to follow the mandates of Rule 24 of Order XLI of the Code in this case when the evidence was sufficient to dispose of the matter before the appellate Court the order of remand for delivering a fresh judgment on the basis of the existing evidence on the record would definitely be illegal. It is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the came cannot be decided by the appellate Court because of lack of proper materials on record, then only remand can be made but the appeal at hand does not conform to the provisions of Order XU, Rules 23 to Rule 25. Rule 24 of Order XU, CPC is definitely applicable in the present case when it is admitted that there is already oral and documentary evidence on the record and in such a situation it is incumbent on the appellate Court below to decide the appeal on merit. The first appellate Court is a final Court of facts and all the questions of facts and law arising in the case were open before it for consideration and decision and it should not ordinarily remand a case under Rule 23-A to the trial Court merely because it considers that the reasoning of the trial Court in some respects is wrong or inconsistent. Such remand order leads to unnecessary delay and cause prejudice to the parties to the case. When the proper material was available before the lower appellate Court it should have itself decided the appeal one way or the other. It should have considered the various aspects of the case mentioned in the judgment of the trial Court and should have considered whether an order of the trial Court ought to be confirmed or reversed or modified. The ratio of the cases of Ashwin Kumar K. Patel (supra), Pasupuleti Venkateswarlu (supra), Shrimati Kartar Devi (supra), Awadhesh Kumar Mishra and others (supra) and Kailashpati Narain Singh and others (supra) relied upon by the learned counsel for the defendant-appellant supports his contention and I find substance in the contention of the learned counsel for the defendant- appellant. Therefore, the impugned judgment of the learned appellate Court below suffers with infirmity and illegality and it cannot be sustained.

11. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned judgment is set aside. The learned appellate Court below is directed to decide a fresh Title Appeal No. 24 of 1994/24 of 2001 on merit in accordance with law and to apply its mind afresh after giving an opportunity of hearing to the learned counsel of both the parties within the period of three months positively from the date of receipt of this order or from the date of the filing of a copy of this order by either of the parties which ever is earlier. However, there shall be no order as to costs.