Case Background
The dispute concerns 20 decimals of ancestral land in RS Plot No. 505, Khata No. 77, in Hirpur village, P.S. Jandaha, District Vaishali. Both sides claim that, after an oral partition in their family, they became exclusive owners of portions of this land and then sold it.
The plaintiff (later the appellant before the High Court) claimed that he purchased 10 decimals of land from one Jagarnath Chaudhary, son of Kishori Prasad. He relied on an agreement for sale dated 27.10.1998 and a sale deed dated 28.01.1999 said to cover the western 10 decimals of RS Plot No. 505.
The defendants claimed under three sale deeds executed by Upendra Chaudhary, another son of Kishori Prasad. According to them, after family partition, the whole of Plot No. 505 (20 decimals) fell in Upendra’s share, while a different plot (No. 1217) fell in Jagarnath’s share and was sold away by Jagarnath and his son to other persons.
A proceeding under Section 144 Cr.P.C., later converted to Section 145 Cr.P.C., was started due to a dispute over possession. That criminal proceeding concluded on 27.08.2007, recording possession in favour of the defendants.
The plaintiff then filed Title Suit No. 486 of 2007 in the civil court, claiming declaration of his title over 10 decimals and alleging that the defendants had dispossessed him from the land.
The trial court decreed the suit in favour of the plaintiff by judgment dated 15.03.2018 and decree dated 27.03.2018. The defendants appealed in Title Appeal No. 29 of 2018 before the District Judge, Vaishali at Hajipur.
The District Judge reversed the trial court’s decree. However, instead of deciding the title dispute finally, he remanded the entire case to the trial court for a fresh trial under Order 41 Rule 23-A of the Code of Civil Procedure (CPC), mainly on the ground that there was a complete lack of documentary evidence regarding the family partition.
Aggrieved only by this remand order, the plaintiff filed Miscellaneous Appeal No. 247 of 2020 before the Patna High Court.
What the Court Examined and Decided
The Patna High Court, through Hon’ble Mr. Justice Ashutosh Kumar, focused on a narrow but important point: whether the District Judge was right in sending the suit back to the trial court for retrial under Order 41 Rule 23-A CPC.
The appellant’s lawyer argued that in cases of alleged oral partition of ancestral property, documentary evidence of partition will usually not exist. Both families were claiming oral partition; so, absence of partition documents could not be a reason to remand the whole case.
He submitted that the District Judge, if not convinced with the trial court’s findings, could have simply reversed or modified them and decided the appeal on the basis of evidence already on record. Alternatively, if the Judge felt that some specific issues were not framed or some limited further evidence was necessary, he should have used Order 41 Rule 25 CPC, which allows the appellate court to frame additional issues and send only those issues to the trial court for findings, instead of ordering a complete retrial.
The core submission was that conditions for using Order 41 Rule 23-A were not satisfied, so the remand order was bad in law and should be set aside.
On the other hand, the defendants’ counsel supported the District Judge’s order. He submitted that the appellate court had found serious problems in the trial court’s approach and, therefore, in its wisdom, it ordered retrial so that the case could be re-examined from the beginning with proper evidence.
To understand this controversy, the High Court briefly reviewed what happened in the courts below.
Before the trial court, the plaintiff’s case rested on his purchase from Jagarnath Chaudhary. He traced the family tree: one Hirday Prasad had two sons, Jagdambi Prasad and Kishori Prasad. After Hirday’s death, his two sons allegedly effected an oral partition, and Plot No. 505 (19 decimals in the record) fell to Kishori’s share. Kishori had two sons, Jagarnath (the plaintiff’s vendor) and Upendra (vendor of respondent no. 2). According to the plaintiff, after Kishori’s death, these two brothers again orally partitioned their inherited land, and RS Plot No. 505 was divided horizontally into two equal portions of 10 decimals each, the western part going to Jagarnath and the remainder to Upendra.
The plaintiff claimed that because of urgent financial need, Jagarnath agreed to sell his 10 decimals. An agreement for sale was executed on 27.10.1998, followed by a sale deed dated 28.01.1999. Registration allegedly got delayed because sufficient stamp papers were unavailable on an earlier date. The plaintiff asserted that he took possession on the date of agreement and built huts and a cattle shed.
The defendants countered this narrative. They said that after partition between Jagarnath and Upendra, Plot No. 1217 (not 505) fell in Jagarnath’s share, and the whole of Plot No. 505 fell in Upendra’s share. Because of money needs, Jagarnath and his son had already sold the land from Plot No. 1217 to one Jagdeo Rai, who later sold it to Nirmala Devi in 1997.
Thus, according to the defendants, Jagarnath had nothing left in Plot No. 505 to sell in 1998–1999. Upendra alone was in possession of the entire 20 decimals of Plot No. 505 and validly sold it to defendants Umesh Singh and Kameshwar Singh through three sale deeds dated 08.12.1998 and thereafter.
The defendants further alleged that the plaintiff had fraudulently got a sale deed from Jagarnath in respect of land that actually belonged to Upendra. Jagarnath himself, they said, filed Complaint Case No. 2153 of 2000 before the Magistrate complaining about this fraud. In the Section 145 Cr.P.C. proceeding, the plaintiff allegedly admitted he was not in possession; the Magistrate held that Upendra was in possession of the disputed land.
The trial court, however, found that the defendants could not produce documentary proof that Jagarnath or his son had sold away land in Plot No. 1217, or that Plot No. 505 belonged entirely to Upendra. It also noted that, though Jagarnath filed a criminal complaint about alleged fraud in the sale deed, he never took steps in a civil court to cancel that sale deed. Jagarnath’s son had testified that his father sold the land in question to the plaintiff. On these bases, the trial court accepted the plaintiff’s version of possession and dispossession and decreed the suit.
When the matter reached the District Judge in appeal, he re-examined the documents. He noted that:
- The agreement to sell to the plaintiff was dated 27.10.1998, but the registered sale deed was dated 28.01.1999.
- Dispute over possession had been going on since 22.06.1999, as seen from the Section 145 Cr.P.C. proceeding, which finally recorded possession with the defendants on 27.08.2007.
- There was no documentary evidence about the alleged partitions in the family and about how the ancestral property was divided between the brothers.
- Although the plaintiff’s agreement for sale was earlier in time than the sale deeds in favour of the defendants, the actual registered sale deed of the plaintiff came later, and there was no proof of payment of the balance consideration.
- When the recitals in the plaintiff’s sale deed were read together with the allegations in Jagarnath’s complaint dated 23.10.2000 (Exhibits E and F), doubts arose about whether the plaintiff’s sale deed concerning RS Plot No. 505, Khata No. 77, was genuine.
Because of these doubts, the District Judge held that the trial court’s decree was not sustainable and reversed it. But instead of deciding who had better title and possession, the Judge remanded the entire matter for retrial, citing complete lack of documentary evidence about partition, and invoked Order 41 Rule 23-A CPC.
The Patna High Court carefully analysed this use of Order 41 Rule 23-A. The Court explained that Rule 23-A allows an appellate court to remand a case for retrial when three conditions are met:
- The suit was disposed of otherwise than on a preliminary point.
- The decree of the trial court is reversed in appeal.
- A retrial is considered necessary.
Rule 23-A, introduced in 1976, enlarges the power of remand but, the High Court stressed, such power must be used very cautiously. An unnecessary remand gives a case an “unnecessary and undeserved long rope” and causes avoidable delay.
Here, the High Court noticed an important fact: neither party had produced any documentary evidence about partition or allotment of ancestral shares. If the plaintiff lacked such documentary proof, so did the defendants. Both sides were essentially relying on oral evidence about partition.
In such a situation, the High Court held, there was no need for the appellate court to look for documentary evidence about partition at all. The appellate court could and should have decided the dispute on the oral and documentary evidence already on record.
If the appellate court thought that some documentary evidence of partition was still necessary for a just decision, it had another, more limited option under Order 41 Rule 25 CPC. Under Rule 25, the appellate court may frame specific issues and refer those issues to the trial court for additional evidence and findings, without sending the entire case back for a fresh trial.
The High Court further pointed out that if the existing evidence was sufficient to pronounce judgment, the appellate court was duty-bound under Order 41 Rule 24 (the judgment refers to Rule 21/24 contextually) to settle any necessary issues and finally decide the suit, even if the trial court’s judgment had proceeded on different grounds.
Additionally, the High Court pointed out a procedural defect. When remanding a case under Rule 23, 23-A or when sending issues under Rule 25, the appellate court must, as required by Rule 26-A, fix a specific date for the parties to appear before the trial court. This is to avoid delay caused by issuing fresh notices. The District Judge had not complied with this requirement.
Given these reasons, the Patna High Court held that the remand order was not sustainable. However, the Court made it clear that it was not giving any opinion on whether the trial court’s decree in favour of the plaintiff was right, or whether the District Judge’s criticism of that decree was correct. The High Court confined itself strictly to the legality of the remand under Order 41 Rule 23-A.
Ultimately, the High Court set aside the remand order and sent the case back to the appellate court (District Judge, Vaishali) with a direction to write a fresh judgment in accordance with law. The District Judge has been asked either to decide the appeal finally under Order 41 Rule 24, on the basis of evidence already available, or, if necessary, to use Order 41 Rule 25 to frame specific issues and call for limited additional evidence and findings from the trial court.
The High Court also expressed an expectation that the appellate court will deal with the matter with “urgent dispatch,” recognising that the litigation has already been prolonged.
Why This Judgment Matters
This judgment is important for litigants in Bihar, especially in rural land and family partition disputes. It clarifies that appellate courts cannot routinely send cases back for fresh trials just because the evidence is not to their liking.
Where both sides rely mainly on oral evidence about family partition, and no one has documents of partition, the appellate court must normally decide the case on existing evidence. Sending parties back to start again only delays justice, increases cost, and keeps land disputes hanging for years.
The Patna High Court also highlights an easier route for appellate courts: if they need clarification on a few points, they can frame specific issues and call for findings from the trial court under Order 41 Rule 25, instead of ordering a full retrial.
For ordinary people involved in land disputes, this decision sends a message that higher courts are alert to unjustified remands and long delays, and that they expect appeals to be decided efficiently and within the framework of the Code of Civil Procedure.
Legal Issues and Answers
Issue: Was the District Judge justified in remanding the entire title suit for retrial under Order 41 Rule 23-A CPC on the ground of lack of documentary evidence of family partition?
Answer: No. The Patna High Court held that, since neither party had documentary proof of partition and the dispute could be decided on existing evidence, the conditions for remand under Rule 23-A were not met. The appellate court should either decide the appeal finally under Order 41 Rule 24 or, if needed, use Rule 25 to call for limited additional evidence on specific issues.
Issue: Did the appellate court follow the mandatory procedure while remanding the case?
Answer: No. The High Court noted that the appellate court failed to comply with Order 41 Rule 26-A CPC, which requires fixing a date for the parties to appear before the trial court when a case is remanded or issues are sent back. This was an additional defect in the remand order.
Cases Cited by the Court
- The judgment text does not mention or discuss any other reported case law. No external precedents are cited.
Case Details
Case Number: Miscellaneous Appeal No. 247 of 2020 (arising out of Title Appeal No. 29 of 2018, which in turn arose from Title Suit No. 486 of 2007)
Case Title: Matar Mahato @ Mahindra Singh v. Umesh Singh & Ors.
Coram: Hon’ble Mr. Justice Ashutosh Kumar
Citation: 2022 (1) PLJR 932
Advocates:
- For the Appellant(s): Mr. Chandra Kant, Advocate
- For the Respondent(s): Mr. Bhubneshwar Prasad, Advocate
Nature of the Case: Miscellaneous Appeal under the Code of Civil Procedure challenging an appellate court’s order of remand in a title suit concerning ancestral land and alleged oral partition.
Date of Patna High Court Judgment: 18.01.2022
Link to Judgment: View full judgment on the Patna High Court website
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