- (1.) This appeal is directed against the judgment dated 22.6.2007 passed by Shri Manoranjan Kavi, Xth Additional Judicial Commissioner-cum-IIIrd Special Judge, CBI (AHD Cases), Ranchi in Title Appeal No. 130 of 2003, by which judgment after setting aside the judgment and decree passed by Sri Ashok Kumar Pathak, Sub Judge-VII, Ranchi dated 12.11.2003 whereby and whereunder he remanded the case back to the trial court for retrial.
(2.) It is submitted by the learned Counsel for the appellants that it will appear from the impugned judgment that instead of deciding the appeal on its own merit the learned appellate court, in para-14 of its judgment, only enumerated that the plaintiffs-respondents have filed near about eighteen (18) documents, but they have not proved a single document out of 18 sale deeds. The plaintiffs-appellants filed a petition under Order 41 Rule 27 read with Section 151 C.P.C. on 23.2.2007 with a prayer for accepting the documents as additional evidence and the lower appellate court gave a finding that since three (3) sale deeds such as sale deed No. 11600 dated 28.12.89; sale deed No. 4289 dated 19.4.88 and sale deed No. 1063 dated 18.1.90, cannot be taken into evidence as they are Xerox Copies and further gave a finding at para 16 that since Xerox Copies cannot be marked as exhibited. Hence the application under Order 41 Rule 27 read with Section 151 C.P.C. cannot be allowed as the plaintiffs cannot prove their title on the basis of the aforesaid documents. However, in the last paragraph even after coming to a conclusion that the plaintiffs cannot prove their title, remanded the matter for retrial to the court below and as such the entire approach and finding of the learned appellate court is bad in law and fit to be set aside. The learned Xth Additional Judicial Commissioner should have decided the matter on the evidences and documents available on the record and he should have given a finding after considering the merit of both the parties.
(3.) On the other hand, learned Counsel for the respondents submitted that the finding of the learned Xth Additional Judicial Commissioner, in para 16, is erroneous. He has further submitted that without properly looking into the documents available on the record the learned Xth Additional Judicial Commissioner came to a finding that the sale deeds such as sale deed No. 11600 dated 28.12.89; sale deed No. 4289 dated 19.4.88 and sale deed No. 1063 dated 18.1.90, are not available in original on the record and since they are only in Xerox Copies as they cannot be marked and hence even if their application under Order 41 Rule 27 read with Section 151 C.P.C. is allowed as the plaintiffs will not be able to prove their title. It is further submitted that from perusal of the lower court record available in this Court, it appears that all these three (3) sale deeds are available on the record in original.;