P L D 1962 Dacca 564 (PLP)

CHOWDHURY, C. J.‑This appeal is by the plaintiff. It arises out of a suit for partition by metes and bounds of the land described in the schedule to the plaint.

2. Plaintiff's case, shortly stated, is as follows : The disputed land originally belonged to 3 brothers, namely, Kali Kumar, Chandra Kanta and Sreenath in equal shares. Kali Kumar, as found by the Courts below, died leaving two sons, Aditya and Sitanath. Aditya died leaving his widow Moinamati. Sitanath who is said to have inherited 1/3rd share of his father Kali Kumar, mortgaged the same which the plaintiff is said to have auction‑purchased on 9‑11‑37 in mortgage execution case No. 169 of 1937 in execution of the mortgage decree in mortgage suit No. 179 of 1936 and got delivery of possession on 28‑7‑

38. Therefore, the plaintiff filed the present suit for partition against the defendants who are the heirs of two other brothers of Kali Kumar, namely, Chandra Kanta and Sreenath claiming 1/3rd share of the entire property.

3. Defendant No. 1, son of Sreenath, not only claims 1/3rd share of his father Sreenath but also claims 1/6th i.e., J out of 1/3rd share of Kali Kumar through Moinamati, widow of Aditya by virtue of lease from Moinamati.

4. The trial Court decreed the suit of the plaintiff holding that alleged lease said to have been obtained by defendant No. 1 from Moinamati was not a genuine and valid document nor was it registered and that it was collusive and fraudulent and was not acted upon.

5. On appeal the learned Subordinate Judge, though found that the lease set up by defendant No. 1 was a collusive and fraudulent document and was not acted upon, that it was written on a paper containing thumb‑impression of Moinamati and that defendant No. 1 had no karsa tenancy on the basis of that lease nor possession of the same, allowed the appeal of defendant No. 1 holding that the plaintiff's auction‑purchase in execution of the mortgage decree on the basis of the mortgage executed by Sitanath cannot affect more than what Sitanath had in the property ; that Moinamati's life interest to the extent of 1/6th share out of 1/3rd of Kali Kumar through her husband Aditya is not affected by the sale and that after the death of Moinamati after the auction sale in execution of the mortgage decree her 1/6th share vested in Sitanath and on his death his heirs got it and as such the plaintiff cannot get more than 1/6th share in the whole property. The learned Subordinate Judge has further held, though wrongly, that in the circumstances there cannot be any partition without impleading Sitanath as it appears from the trial Court's judgment at page 6 of the paper‑book that Sitanath was impleaded as party and after his death his heirs were made parties to the suit, and he remanded the suit for trial afresh after impleading Sitanath as party to the suit. Another ground of remand is that the point as to whether the plaintiff is entitled to get a share in the homestead land of a joint Hindu family has also not been considered by the trial Court. So the learned Subordinate Judge remanded the case to the trial Court. Against this order of remand the present appeal has been filed in this Court.

6. During the pendency of the appeal in this Court against the said order of remand, the suit has been disposed of by the trial Court in spite of the fact that the plaintiff filed an appli cation for stay of further proceeding in the suit stating that an appeal is pending in this Court against the order of remand by the lower appellate Court giving a reference of the filing number of this appeal. The said application, though taken up by the trial Court, was not disposed of and was adjourned more than once. The learned Munsif, who was dealing with the application and the suit, was transferred and the Munsif, who subsequently came in his place, did not take notice of that application and dismissed the suit for default. The plaintiff did not appear. He must be under the impression that on the pending application the suit after remand would automatically be adjourned or stayed till the disposal of the appeal pending in the High Court.

7. When this appeal came up before us for hearing, the matter was brought to notice as a preliminary objection has been raised as to the maintainability of this appeal after the disposal of the suit after remand and the learned Advocate appearing on behalf of the appellant felt his position much compromised on account of the dismissal of the suit in the trial Court after the order of remand and prayed for adjournment of this appeal to enable him to see whether he can get the suit dismissed for default restored to its file. We accordingly adjourned the appeal on 6‑7‑60 to enable the learned Advocate to take necessary steps in the matter. It appears that the plaintiff-appellant filed an application for review of that order and restoration of the suit under Order IX rule 9 of the Code of Civil Procedure read with section 151 of the Code, but unfortunately the learned Munsif thought that as there was no sufficient cause for non‑appearance of the plaintiff on the date fixed for hearing of the suit he has got no inherent power to exercise under section 151 of the Code of Civil Procedure in the circumstances of the case and rejected that application.

8. A preliminary objection has been taken by Mr. Guha, the learned Advocate for the respondent, namely, that in view of dismissal of the suit after the order of remand, and dismissal of the application for restoration of the suit, the appeal against the said order of remand has become infructuous and it is not entertainable.

9. There are of course authorities in support of the con tention of Mr. Guha. The earliest one is the decision of Maclean, C. J. sitting with Mitra, J. in the case of Madhu Sudan Sera v. Kamini Kanta Sen (I L R 32 Cal; 1023) where it has been held that the right of appeal from interlocutory order ceases with the disposal of the suit, and that where on the plaintiff's appeal a suit was remanded under section 562 of the Civil Procedure Code and on remand the Court of first instance decided the case in the plaintiff's favour and there was no appeal from that decision, but the defendant afterwards appealed to the High Court against the order of remand, the appeal was not maintainable. What happened in that case was the learned Munsif dismissed the suit and on appeal the learned Subordinate Judge set aside the judgment and decree of the learned Munsif and remanded the case for fresh trial of the other issues raised. After remand the learned Munsif disposed of the case in favour of the plaintiff and gave him a decree for possession. The defendant, however, did not appear at the hearing and that decree became final and there was no appeal from that decree, I mean, the decree passed by the trial Court after the order of remand. But the defendant filed an appeal against the order of remand and it was presented 3 days after the decree became final in the Munsif's Court. Their Lordships, therefore, distinguished the case from the case of Jatinga Valley Tea Company Limited v. Chera Tea Company Ltd. (I L R 12 Cal. 45), and observed: "Inasmuch as in that case the appeal from the order of remand was presented before the final decree in the suit has been passed the case is no authority on the question now before us." At page 1029 of the report their Lordships observed as follows. "Section 588 of the Code allows appeals from the orders specified therein and from no other orders. They are mostly interlocutory orders passed during the course of a suit. Many of them do not affect the final decision as regards the rights of the parties their forces lasts only as long as the suit is pending. It seems to us to be clear that the right of appeal from such orders ceases with the disposal of the suit."

10. The next authority referred to by Mr. Guha is the decision of Calcutta High Court in the case of Baikuntha Nath Dey and another v. Nawab Salimulla Bahadur and others (12 C W N 590) where it has been held: "When a litigant has the right to choose between two remedies which are not co‑existent but alternative, and adopts one of those remedies, his act at once operates as a bar ‑ regards the other and the bar is final and absolute." "After having taken the lull benefit of an order of remand, it is not open to turn round and appeal against it. In that case the dispute was to which mauza the disputed and belonged. The decision in the trial Court was to favour of the defendant. On appeal by the plaintiff the Subordinate Judge considered that a local investigation was necessary and set aside the judgment and decree of the trial Court and remanded the case to that Court; the case must therefore, go back to the lower Court, a step to which both parties have agreed before me. "When the case went back, the appellant in High Court filed an application for postponement of the proceeding of the ground that he wished to appeal to the High Court against the order of remand, but his application was unfortunately refused and he was forced to join the proceeding. In obedience to the order of remand a Commissioner was appointed who submitted a report adverse to the plaintiff‑appellant's claim. The report came before the learned Munsif when the appellant refused to argue his case saying that he had appealed to the High Court against the order of remand. The learned Munsif after hearing the case delivered the judgment adversely to the appellant on the 29th March. Meanwhile the appellant had filed his appeal against the order of remand on the 23rd March, the last date on which it was open to him to do so. But he did not file any appeal against the judgment of the learned Munsif. Question arose whether the appeal against the order of remand was maintainable. For the reason stated above their Lordships held that it was not.

11. The third case referred to by Mr. Guha is the case of Sheikh Salim v. Hajira Bibi (I L R 55 Cal. 506) where it has been held that the appeal was not maintainable inasmuch as the defendant‑appellant did not raise any objection at the hearing of the suit on the merits and no appeal was preferred from the final decree to the lower appellate Court. At page 510 of the report Page, J. observed: "It was open to the defendant in the present case to appeal against the order of remand, or to accept the order of remand and to take his chance of proving successful at the retrial as he had been when the case lad for the first time been heard. The defendant did not protest against the validity of the new trial nor did he refuse to take any part in that proceeding. On the contrary, it appears that he contested the suit at the rehearing on the merits, in that event a decree was passed against him, and that he has not preferred an appeal therefrom. I do not think that it was open to him, after having taken his chance of succeeding upon the merits at the retrial and when the day had gone against him, to give the go‑by to the pro ceedings which terminated in a decree against him at the retrial, and thereafter to prefer an appeal against the interlocutory order of remand which was the foundation of the jurisdiction of the learned Munsif to rehear the case. A litigant finding himself in a situation such as that in when the appellant was placed must elect whether he will accept or repudiate the validity of the remand order."

12. On the other hand, Mr. Das, the learned Advocate for the plaintiff‑appellant, very strongly relied on the Full Bench decision of the Allahabad High Court in the case of Uman Kunwari v. Jarbandhan and another (I L R 30 All. 479) where it has been held that the fact that the suit has been decided by the Court of first instance in compliance with the order of remand made under section 562 of the Code of Civil Procedure is no bar to the filing of an appeal from the order of remand or to the hearing of such an appeal. In that case all the cases referred to by Mr. Guha as quoted above have been considered and discussed. The point was mooted at page 482 of the report, which runs as follows: ‑ "The first question we have to determine is whether an appeal lies from an order of remand passed under section 562 of the Code of Civil Procedure, if before the filing of the appeal the suit has been decided in compliance with the order of remand. In our judgment the question must be answered in the affirmative. A party aggrieved by an order of remand has, under section 588, clause (28), of the Code of Civil Procedure, a right of appeal from the order, and the period of limitation for `such ‑an appeal is ninety days under Art. 156 of the Second Schedule to the Indian Limitation Act. Unless, therefore, the law has imposed a restriction on this right, an appeal is main tainable if it is filed within the prescribed period of limitation. We are not aware of any such restriction, and none has been brought to our notice. The learned Advocate for the res pondent contends that where a party has two alternative remedies and he avails himself of one of them he cannot resort to the other, and that as the appellant has allowed the remand order to be carried out his remedy is an appeal from the ultimate decree in the case, in which he can question the validity of the order of remand. This argument is in our judgment fallacious. If after the order of remand the case is tried by the Court of first instance, it is so tried not at the instance of the party who is prejudiced by the order of remand, but in compliance with that order of remand. It is not in the power of that party to prevent a trial, and it cannot be said that in allowing the case to be tried he resorts to an alternative remedy in respect of the order of remand. It is true that, if he can appeal to the High Court from the final decree made in the case by the lower appellate Court, he may, as held by the Full Bench in Rameshvar Singh v. Sheo Din Singh I L R 12 All. 510, question the legality and correctness of the order of remand, but in such an appeal the propriety of the order of remand cannot be made the sole ground of appeal. This was so held in Sheo Nath Singh v. Ram Din Singh I L R 18 All.

19. Unless, therefore, he has a substantive ground of appeal to the High Court he would have no remedy against the order of remand. The doctrine of election of remedies seems to us to have no application." Then their Lordships further observed:‑‑ "It is next argued that, even if the present appeal from the order of remand be entertained, the decision in the appeal will be of no avail to the appellant as the decree passed by the Court of first instance in compliance with the order of remand would still remain a valid decree. This appears to be the foundation of the decision of a Bench of this Court in Salin Ram v. Brij Bilas I L R 29 All.

659. With great deference, we are unable to agree with the learned Judges who decided that case. After the Court of first instance had once decided the case, it ceased to have any jurisdiction to hear it again except on review of judgment. Its jurisdiction to hear it a second time was derived solely from the order of remand. If that order was erroneous and is set aside, everything done in pursuance of the order must fall to the ground and be of no effect." Then their Lordships proceeded to quote what Field, J. has said in the case of Jatinga Valley Tea Co. Ltd. v. Chera Tea Co. Ltd. which runs as follows: ‑ "It has been contended before us that the appeal ought not to be heard. It is said that after the remand order the Munsif proceeded to make a final decree and the existence of that final decree is a bar to the hearing of the appeal against the order of remand. We are unable to concur in this contention. The law, subsection (28) of section 5 88 of the Code of Civil Procedure, expressly gives an appeal against an order under section 562 remanding a case. That provision is not in any way qualified. The Code does not say that there shall be an appeal only if the case has not been finally determined in the Court of first instance before that appeal is preferred or comes on for hearing. We cannot therefore import into the Code a provision, which does not there exist. The Munsif's jurisdiction to hear the case upon remand depended upon the remand order. If the remand order were badly made, the decree, and indeed all the pro ceedings taken under the remand order are null and void." This observation of Field, J. has been fully agreed to by Edge, C. J. in the case of Rameswar Singh v. Sheo Singh, where the learned Chief Justice after quoting the above passage, said. "I agree with every word in the passage which I have just quoted". We, with due respect to the learned Judge, also fall in the same line and agree with the view which is not only the view of the Allahabad High Court in the case of Jatinga Valley Tea Co. Ltd. v. Chera Tea Co. Ltd. before the decision of Maclean, C. J. in the case of Madhu Sudan Sen v. Kamini Kanta Sen. Therefore, there is no difficulty, in the facts and circumstances of the present case, and no difference of opinion in coming to the decision that even after the disposal of the suit, after the order of remand, by the trial Court, the appeal, if it is otherwise competent against the order of remand, is maintainable and the validity of the decision C of the trial Court after the order of remand will depend upon the validity of the order of remand. If the order of remand is se aside, along with it the decision of the trial Court will also fall through as without jurisdiction. The cases referred to by Mr. Guha are distinguishable from the facts of the present case. In the present case, we find from the statement of facts that after the order of remand the plaintiff‑appellant filed an applica tion before the trial Court praying for stay of further proceeding in suit. Keeping that application pending if the trial Court proceeds to dispose of the suit and the application under Order IX, rule 9 of the Code of Civil Procedure everybody can imagine as to what is the effect of such a proceeding and to what extent it is valid and binding.

13. As regards the merit of the case, we entirely agree with the findings of fact of the learned Subordinate Judge that Sitanath, who was entitled to half of his father's 1/3rd share in the entire property, mortgaged the whole of it and that in execution of the mortgage decree the property might have been sold but that the auction‑purchaser cannot have more than what the judgment debtor had in the property, that is, the learned Subordinate Judge has rightly found that the plaintiff is entitled to get only 1/6th share of the entire property and he has not acquired any interest out of the share of Aditya inherited by his widow Moinamati, which, after the auction‑sale of Sitanath's share devolved on Sitanath after the death` of Moinamati. We also agree with the findings of the learned Subordinate Judge that defendant No. 1 did not acquire any interest by virtue of any lease from Moinamati nor ever possessed any portion of the land out of the share of Moinamati and the whole of it devolved on the heirs of Sitanath and that the said defendant has got no right, title and interest by virtue of the said lease besides what he had from his father Sreenath ; but we cannot agree with him to allow the appeal at the instance of this defendant No. 1 who is found to have acquired no interest by virtue of the alleged lease from Moinamati. Of course, there is no doubt that defendant No. 1 might have got certain share by inheritance from his father Sreenath. In this view of the matter the learned Subordinate Judge has committed a mistake in holding that Sitanath should have been impleaded as party to the suit though, in fact, he was a party and on his death his heirs were impleaded as party defendants as pointed by the learned Munsif in his judgment. Therefore, the purpose for which the learned Subordinate Judge sent the case back on remand to the trial Court cannot be supported.

14. We also agree with the learned Subordinate Judge that the plaintiff being a stranger to the joint Hindu family he is not entitled to what constitutes homestead of the family. But for that the case should not have been remanded, when a direction to follow the provision of section 44 of T. P. Act and section 4 of Estates Partition Act would have been sufficient though we accept some of his findings, and send the case back on remand to the trial Court to effect partition in the light of the observa tions made above, namely, allotting 1/6th share of the entire property to the plaintiff. Subject to the provisions of section 44 of the Transfer of Property Act and section 4 of the Estates Partition Act. ' In the circumstances of the case, we make no order as to costs. The alternative application under section 115 of the Code of Civil Procedure is rejected without any order as to costs. M. R. KHAN, J.‑I agree with my Lord, the Chief Justice. Order accordingly.