SRI BISWAJIT NATH v. SMTI. KHONA NATH AND 6 ORS

3: SRI BISWAJIT NATH S/O- LATE BIPUL CHANDRA NATH R/O- VILL.- PATHU PORGONA BORPARA P.O. PATHU- 788781 DIST.- KARIMGANJ ASSAM. 4: SMTI. ARCHANA NATH W/O- SRI DIPAK NATH R/O- VILL.- SUPNARGOOL P.O. MAIZGRAM- 788711 DIST.- KARIMGANJ ASSAM. 5: SMTI. SUMA NATH D/O- LATE SULALIT NATH R/O- VILL. AND P.O.- DHARAKUNA- 788712 DIST.- KARIMGANJ ASSAM VERSUS SMTI. KHONA NATH AND 6 ORS D/O- LATE JOUGEWAR NATH, R/O- VILL.- KESHORKAPAN, P.O.- DHARAKUNA- 788712, DIST.- KARIMGANJ, ASSAM Page No.# 2/6 2:SRI RAMA NATH S/O- LATE MOYNA NATH R/O- VILL.- KESHORKAPAN P.O.- DHARAKUNA- 788712 DIST.- KARIMGANJ ASSAM. 3:SRI PALTU NATH S/O- LATE MOYNA NATH R/O- VILL.- KESHORKAPAN P.O.- DHARAKUNA- 788712 DIST.- KARIMGANJ ASSAM. 4:SMTI. KRISHNA NATH D/O- LATE RATHINDRA NATH R/O- VILL.- KESHORKAPAN P.O.- DHARAKUNA- 788712 DIST.- KARIMGANJ ASSAM. 5:SMTI. TRISHSNA NATH D/O- LATE RATHINDRA NATH R/O- VILL.- KESHORKAPAN P.O. DHARAKUNA- 788712 DIST.- KARIMGANJ ASSAM. 6:THE SUB- REGISTRAR KARIMGANJ P.O. KARIMGANJ- 788710 DIST.- KARIMGANJ ASSAM. 7:SRI RITU RAJ BISWAS DEED WRITER OFFICE OF THE SUB-REGISTRAR KARIMGANJ P.O. AND DIST.- KARIMGANJ PIN- 788710 ASSAM Page No.# 3/6 B E F O R E HON’BLE MR. JUSTICE DEVASHIS BARUAH Advocate for the appellants : Mr. N Dhar Mr. TU Laskar Advocate for the respondents : Ms. R Choudhury Ms. SS Zia

02.05.2024 JUDGMENT & ORDER (ORAL) This is an appeal under Section 104 read with Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908, (for short, the Code) challenging the order dated

19.12.2018 passed by the learned Civil Judge Karimganj in Title Appeal No.11/2018 whereby the learned First Appellate Court i.e. the Court of the learned Civil Judge, Karimganj had remanded the suit back to the learned Trial Court for a fresh disposal after framing an independent issue in respect to the claim of preferential right of the plaintiff.

This Court finds it relevant to mention that the learned First Appellate Court also observed that there should be a decree prepared. But, however, the question of preparation of a decree does not arise inasmuch as, when a suit is being remanded for a fresh disposal, it would be an order of remand in terms with Order XLI Rule 23-A of the Code. Under such circumstances, the said direction for preparation of a decree is completely unwarranted. Page No.# 4/6

Be that as it may, this Court has duly taken note of the order of the plaint, the written statement as well as the evidence on record. This Court has also taken note of the judgment passed by the learned Trial Court wherein, more particularly, at paragraphs 55, 56, and 57, the learned Trial Court while discussing the issue No.6 had duly dealt with the preferential right of the plaintiff and held that the plaintiff did not have the preferential right. The learned First Appellate Court though framed the point for determination as to whether the claim of preferential right of the plaintiff to purchase the share of the co-sharers of the suit land was justified, but surprisingly, remanded the suit back to the learned Trial Court to frame an additional issue as regards the preferential right of the plaintiff. The materials on record clearly show that the learned First Appellate Court could have very well decided the same in terms with the evidence which was already available on record.

The grounds of objection which were taken by the plaintiff as an appellant before the learned First Appellate Court included a ground of objection at Serial No. 14 of the Memo of Parties wherein it was mentioned that the learned Trial Court ought to have considered that the plaintiff had first preference of the schedule of the Class II heirs of their deceased father and as such, the plaintiff was entitled to get the share of her sister principal defendant No.1/respondent No.1 being preferential right under Section 22 of the Hindu Succession Act, 1956, which the learned Trial Court committed error in deciding the issue No.6. This Court having taken note of that there was evidence on the basis of which the learned First Appellate Court could have decided the said aspect, but, however, the learned First Appellate Court contrary to the provisions of Order XLI Rule 24 had remanded the suit back to the learned Trial Court, which in the opinion of this Court was not justified. Page No.# 5/6

Accordingly, this Court sets aside the impugned order dated 19.12.2018 passed in Title Appeal No.11/2018 and directs the learned First Appellate Court i.e. the Court of the learned Civil Judge Karimganj to decide the said Title Appeal No.11/2018 afresh on the basis of the materials which are already there on record.

Taking into account that the parties are duly represented, this Court directs the parties to appear before the learned First Appellate Court i.e. the Court of the learned Civil Judge, Karimganj on 01.07.2024 for further proceedings of the appeal.

The Registry is directed to forthwith transmit the records to the learned First Appellate Court i.e. the Court of the learned Civil Judge, Karimganj and if necessary to take recourse to a Special Messenger so that prior to the next date so fixed, the records are received by the learned First Appellate Court.