Dismissed

Chandrashekhar v. Pramod Kumar

Chhattisgarh HC3 Mar 2024MA/88/2010

Case brief

AI extract

What is this about?

The appellants challenged the First Appellate Court's order remanding a suit for declaration regarding ancestral property to implead the mother and a brother as necessary parties. The High Court dismissed the appeal, holding that the lower appellate court rightly exercised powers under Order 41 Rules 23 and 23-A CPC read with Section 99 CPC. The Court directed the trial court to complete the proce

What did the court decide?

Dismissal of the Misc. Appeal; direction to complete trial within 9 months.

Chandrashekhar Vs Pramod Kumar — Partition | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR MA No. 88 of 2010

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Judgment Reserved on : 21.11.2023 Judgment Delivered on : 04.03.2024

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Chandrashekhar S/o Shri Omprakash Lodhi, Aged About 27 Years, R/o Village Kadayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Anant Singh (Dead ) Through Lrs., As Per Court Order Dt. 13-032019.

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2.1 Champeswar Verma S/o Late Shri Anant Singh, Aged about 30 years, R/o Village Kandayee, Tahsil Saja, District : Bemetara Chhattisgarh

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2.2 Tikendra Verma S/o Late Shri Anant Singh, Aged about 20 years, R/o Village Kandayee, Tahsil Saja, District : Bemetara Chhattisgarh

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Raman Singh S/o Shri Lachhi Verma, Aged About 34 Years, Agriculturist, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Ramadhaar S/o Shri Pardeshi Verma, Aged About 46 Years, Agriculturist , R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Ramhu S/o Shri Pardeshi Verma, Aged About 42 Years, Agriculturist , R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Basant (Dead ) Through Lrs. As Per Court Order Dt. 13-03-2019. 6.1 Sanjay S/o Late Shri Anant Singh, Aged about 30 years, R/o Village Kandayee, Tahsil Saja, District : Bemetara Chhattisgarh

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Bhola (Dead ) Through Lrs., As Per Court Order Dt. 13-03-2019. 7.1 Preelelal S/o Late Shri Bhola Aged About 55 Years R/o Village - Kandayee, Tahsil Saja District : Bemetara, Chhattisgarh 7.2 Ram Prasad, S/o Late Shri Bhola Aged About 55 Years R/o Village - Kandayee, Tahsil Saja District : Bemetara, Chhattisgarh

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Ashok S/o Shri Pardeshi Verma, Aged About 28 Years, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Roshanlal (Dead ) Through Lrs., As Per Court Order Dt. 12-032010.

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9.1 Smt. Sushila Bai Wd/o Late Shri Roshan Lal Lodhi, Aged About 35 Years, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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9.2 Ku. Manorama D/o Late Shri Roshan Lal Lodhi, Aged About 19 Years R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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9.3 Ku. Minakshi D/o Late Shri Roshan Lal Lodhi, Aged About 15 Years Minor, Through Their Natural Guardian Mother Smt. Sushila Bai, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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9.4 Ku. Rashmi D/o Late Shri Roshan Lal Lodhi, Aged About 12 Years Minor, Through Their Natural Guardian Mother Smt. Sushila Bai, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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9.5 Champu S/o Late Shri Roshan Lal Lodhi, Aged About 9 Years Minor, Through Their Natural Guardian Mother Smt. Sushila Bai, R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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Dhansingh S/o Shri Parasram Verma, Aged About 64 Years, Agriculturist , R/o Village Kandayee, Tahsil Saaja, District : Durg, Chhattisgarh

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(Deleted) Firanta (Died) Through Lrs. As Per Honble Court Order Dated 07-10-2023.

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11.1 Ramkishun Varma S/o Firanta, Aged About 54 Years, R/o Village Kondayee, Tahsil Saja, District : Bemetara (C.G.)

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11.2 Ramadhar Verma S/o Firanta, Aged About 50 Years, R/o Village Kondayee, Tahsil Saja, District : Bemetara (C.G.)

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---- Appellants

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Versus

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Pramod Kumar S/o Shri Awadhram Lodhi, Aged About 33 Years, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh

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Sheetal Kumar S/o Shri Awadhram Lodhi, Aged About 31 Years, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh

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Raghvendra Shri Awadhram Lodhi, Aged About 26 Years, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh (Plaintiffs)

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Pannalal S/o Shri Jhaduwa Singh Lodhi, Aged About 43 Years, Agriculturist, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh

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Awadhram S/o Shri Jhaduwa Singh Lodhi, Aged About 59 Years, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh

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Jaleshwar S/o Sewaram Lodhi, Aged About 44 Years, R/o Village Kandeyee, Tahsil Saaja, District : Durg, Chhattisgarh

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Seetaram S/o Shri Ram Singh Verma, Aged About 26 Years, R/o

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Village Kandeyee, Post Office Ninwa, Tahsil Saaja, District : Durg, Chhattisgarh

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Radheshyam S/o Shri Ram Singh Verma, Aged About 23 Years, R/o Village Kandayee, Post Office Ninwa, Tahsil Saaja, District : Durg, Chhattisgarh

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Patiram S/o Shri Ram Sing Verma, Aged About 21 Years, R/o Village Kandayee, Post Office Ninwa, Tahsil Saaja, District : Durg, Chhattisgarh

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Smt. Kaminbai Verma D/o Shri Ram Singh, Aged About 28 Years, R/o Village Kanhera, Post Office Kanhera, Tahsil Saaja, District : Durg, Chhattisgarh

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State of Chhattisgarh, Through District Collector Durg Chhattisgarh, District : Durg, Chhattisgarh (Defendants )

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---- Respondents

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For Appellants : Mr. Shashi Bhushan Tiwari, Advocate For Respondent No. 1 to 3 : Mr. H.V. Sharma, Advocate For State : Ms. Akanksha Jain, Dy. G.A.

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Hon'ble Shri Justice Narendra Kumar Vyas

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(CAV Judgment)

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The appellants/defendants have preferred this Misc. appeal against the judgment and decree passed in Civil Appeal No. 165-A/2002 passed on 27.01.2003 by which the learned Additional District Judge, Bemetara has remanded the case as per direction given in its judgment while setting aside the judgment passed by the learned Civil Judge, Class-I, Bemetara on 15.02.2000 in Civil Suit No. 88-A/1987. The learned 3^rd Additional District Judge in its remand order has directed for impleading mother and 4^th brother of plaintiffs as party to the suit and also directed for framing of issues “whether Kartik Ram is necessary party and if plaintiff is impleaded 4^th brother and mother as party to the case then learned trial court will permit

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them to file written statement.”

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The parties are described as per their description before the trial court.

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The brief facts reflected from the record are that the plaintiffs filed a Civil Suit No. 88-A/1987 before the Civil Judge, Class-II, Bemetara which has been subsequently transferred to Civil Judge, Class-I mainly contending that the plaintiffs are governed by Mitakshra Branch of Hindu law. The land situated at Village Kandai admeasuring 28.85 acre is ancestral property of plaintiffs and his father defendant No. 5 Awadhram. The details of the property have been described in Schedule-A of the plaint. The plaintiffs are sons of Awadhram and no partition has been taken place, as such they are having 1/4^th share with their father from birth, thus, the plaintiffs have joint right to the extent of 3/4^th share in the suit property. It has also been contended that Awadhram was Manager of the joint family, but because of some weakness he used to sold the property without any legal requirement of the family as described in the Schedule-A of the plaint which has been sold to defendant Chhabi Lal on 21.08.1978 and some property to defendant Pannalal on 09.04.1979, 20.01.1980 and 23.01.1981 through registered sale deeds, the details of sale have been described in the ScheduleB of the plaint. The property has been sold without legal necessity of joint Hindu family, as such the sale deed is null and void and not binding upon the plaintiffs.

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Thereafter, the defendant Chhabilal has sold the property to

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Hemin Bai and Pannalal has transferred the property to defendant Chandrashekhar on 28.06.1983. The details of sale have been described in Schedule-C of the plaint, since the sale deed was null and void from very inception, as such it is not binding upon the plaintiffs. It has also been contended that the plaintiff Pramod Kumar was born on 04.10.1967 and plaintiff Sheetal Kumar was born on 05.09.1971 and plaintiff Raghvendra Kumar was born on 09.07.1975. When the plaintiff No. 1 has become major on 04.10.1985 and plaintiffs Sheetal Kumar, Raghvendra Kumar were in his guardianship and after being received the information of illegal sale deed the plaintiffs have filed the civil suit. On above factual foundation the declaration was sought that it be kindly declared that the plaintiffs have title 3/4^th share in the suit property described in the Schedule-A as well as the house detailed in Schedule-3 of the plaint. The plaintiffs have also prayed for declaration of the sale deed to be null and void as described in Schedule-B, C and Schedule-3 of the plaint.

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The defendants have filed a separate written statement, the defendant No. 1 has filed a separate written statement mainly contending that the some property is ancestral property and some properly described in Schedule-A is purchased and snatched property. It has also been admitted that partition has not been taken place and Awadhram was the manager of the property. The execution of sale deed was admitted and it has been reiterated that the sale deed was executed after taking sale

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consideration and about the character of the defendant Awadhram, it was denied and have stated that the sale deed cannot be held to be illegal. It has also been stated that Awadhram has also sold property to persons namely Lacchi Awardhram Hemant, Nakul, Bhila, Dushyant, Jaleshwar and would submit that the plaintiffs have been benefited with the sale consideration therefore, prayed for dismissal of the suit.

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Defendant Nos. 3 and 4 have filed separate written statement and have stated that sale was done after getting adequate sale consideration, as such it cannot be said that the execution of sale deed suffers from irregularity and would pray for dismissal of the written statement. The defendant No. 5 Awadhram has filed written statement supporting the case of the plaintiffs wherein he has admitted that the suit property has not been sold for legal requirement of the family and has acted against the interest of the plaintiffs. He has also admitted that he has sold property for illegal act, on less consideration and against the interest of the family and has prayed for allowing the suit. The defendant Nos. 7 and 8 have filed written statement denying the allegations made in the plaint and stated that the suit is barred by limitation. It has also been contended that after execution of sale deed possession has been given and the sale deed has been executed for legal necessity of the family. It has also been contended that the father of defendant No. 7 and 8 Lacchiram has purchased the property on 20.01.1981 through registered sale deed and after his death defendant No. 7 Anant Singh is

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residing in the property after getting partition from his brohter. It has also been contended that the defendant No. 7 and 8 have purchased lands bearing Khasra No. 646 area 1.53 acre on 12.10.1979. Presently the defendant no. 8 Raman and his brother Kartik each of them are in possession of half of the land in view of partition, as such Kartik Ram has not been arrayed as party to the case though he is necessary party and would pray for dismissal of the suit.

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The defendant Nos. 9, 10, 11, 14 and 19 have filed written statement denying the allegation made in the plaint mainly contending that the suit property has been sold on proper value and once the plaintiffs’ father is surviving, therefore, the suit has been filed to harass the plaintiffs and would pray for dismissal of the suit. The defendant Nos. 12, 13, 15 and 16 have filed written statement wherein it has been stated that the defendant No. 5 Awadhram was manager of the family and in the interest of the family he has sold the property. The suit has been filed to harass the defendants, no proper valuation has been done with regard to the suit property and would pray for dismissal of the suit. The defendant Nos. 17 and 18 have filed written statement denying the averments made in the plaint and would submit that the suit property has been sold in the interest of joint Hindu family.

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On the pleadings of parties the learned Trial Court has framed as many as 14 issues which are as under:- page No. 79

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“1- D;k okn lEifÙk oknhx.k dh iSr`d lEifÙk gS\

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2- D;k oknhx.k dk lexz :i ls okn lEifÙk esa 3@4 LoRo o fgLlk jgk gS\

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3- D;k vo/kjke dks 'kjkc ihus] tqvk [ksyus dh vknr fiNys dbZ lkyksa ls jgh gS\

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4- D;k vo/kjke us ifjokj dh fcuk oS/kkfud vko’;drk ds vfoosdiw.kZ <+ax ls viuh

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v- xUnh vknrksa ds o’khHkwr gks O;fDrxr dk;Z ds fy;s okni= esa lsD’ku ^c* ^5^ vuqlwph lEifÙk dks foØ; fd;k\

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c- D;k iz-ok- 5 ds fcuk oknhx.k ij c;ku dkjd ugha gS\

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l- D;k izfroknh 5 ls Ø; djus okLrs Ik’pkrorhZ Øsrk ds i{k esa oknHkwfe ds lEca/k esa fd;s foØ; O;ogkj oknhx.k ij ca/kudkjd ugh gS\

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5- D;k oknh izeksn dk tUe 4&10&67 dks gqvk 'khry dk tUe 5&9&71 dks gqvk jk?kosUnz dk tUe 9&7&75 dks gqvk\

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izHkko\

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6- D;k okn vof/k ckf/kr gS\

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7- D;k ;g okn i{kdkj ,oa okn gsrqdksa ds dqla;kstu ds dkj.k izpyu ;ksX; ugha gS\

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8- D;k oknh okn dk mfpr ewY;kadu djus mfpr U;k;’kqYd fn;k gS\

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9- D;k Øsrkx.k le; ifjfLFkfr vuqlkj mfpr ewY; ij okn lEifÙk ds lnHkkoh Øsrk gS\

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10- D;k lEifÙk vUrj.k vf/kfu;e dh /kkjk 41 ds rgr izfroknh Øsrk okn Ø; lEifÙk ij viuk vkf/kiR; cuk;s j[kus ds vf/kdkjh gS\

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11- D;k foHkktu gksus dh fLFkfr esa izfroknh vo/kjke ds fgLls esa mlds }kjk vUrfjr dh lEifÙk vkrh\ ;fn gka rks izHkko \

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12- D;k oknhx.k] izfroknh 5 vo/kjke }kjk fd;s

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v- vUrj.k ls vcrd nke izkIr fd;s gS\

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c- D;k oknhx.k] izfroknh 5 ds lg;ksx ls] vU; izfroknh Øsrkx.k dks egt ijs’kku djus dh pkg ls ;g okn dkfjr gS\ izHkko \

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13- lgk;rk ,oa okndkj.k \

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14- vfrfjDr okn iz’u %& 27@7@99

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D;k oknhx.k us iUukyky ls jkthukek djus ls iUukyky }kjk gLrkarfjr Hkwfe [k- ua- 17@1 ckcr~ nkok fujLr ;ksX; gS\ izHkko”

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The learned Trial Court vide its judgment and decree dated 15.02.2000 has dismissed the suit. The learned Trial Court while dismissing the suit though it has recorded that the suit property

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is ancestral property and plaintiffs have jointly share of 3/4 of the property, but rest of the issues have been decided against the plaintiffs. The learned Trial has also recorded its finding that the suit property has been sold for legal necessity of joint Hindu family property, as such the sale deed is binding upon the plaintiffs. Being aggrieved with this judgment and decree the plaintiffs have preferred an appeal before the learned Additional District Judge, Bemetara on the count that the learned Trial Court without appreciating the evidence has recorded its finding against the plaintiffs that the defendant is not addicted person and the property has been sold for legal necessity of the family. The trial Court without appreciating the evidence and material on record has dismissed the suit. It has also been contended that during the pendency of the suit some of the defendants have settled with the plaintiffs which should be taken into consideration by the trial court. Thus, the finding of the learned Trial Court suffers from perversity and illegality and prayed for quashing of the judgment and decree passed by the learned Trial Court. The learned Additional District Judge, Bemetara vide its judgment and decree dated 27.01.2003 has remanded the matter considering the evidence of plaintiff’s witness No. 6 Pramod wherein it has been stated that they are 4 brothers and only 3 persons have filed a suit and the 4^th Brother has neither been impleaded as plaintiff nor defendant, as such it has extinction. The Trial Court has also recorded its finding that apart from it mother is also surviving, but she has also not been impleaded as party to the case and the learned Trial Court has

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drawn wrong conclusion that mother has no title in the ancestral property, but as per the provisions of Hindu Women Right to Property Act, 1937, it has been clarified that where the joint Hindu Family is governed by Mitakshara Branch of Hindu Law, then at the time of partition the share of mother shall also be considered and mother has right to get equal share along with sons. The record of the case would show that the plaintiffs are claiming share from joint Hindu family as the mother is necessary party and the mother and 4^th brother are necessary party and without impleading them as party to the case their share and interest cannot be ascertained. The learned First Appellate Court while remanding the case has also directed to frame additional issue whether Kartik Ram is necessary party to the case or not. The learned Appellate Court has also directed that the material which is already available on record of the trial court will be considered while deciding the suit and accordingly remanded back to the learned Trial Court for adjudication. The learned First Appellate Court while remanding the matter has clarified that the issues raised in the appeal are not being determined as the interest of the parties and the decision of the trial court will be prejudiced and accordingly the judgment and decree has been set aside and the suit is remanded back to the trial court for retrial as per directions given in the trial.

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Being aggrieved with this order the defendants have earlier preferred a civil revision which is registered as Civil Revision No. 120/2003 before this Court and this Court vide its order dated

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29.03.2003 has stayed the further proceedings before the learned Civil Judge, Class-II Bemetara, thereafter amendment application has been filed and civil revision has been converted into Misc. Appeal and the interim order is continued and the matter was finally heard on 21.11.2023.

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The learned counsel for the appellants would submit that they are bonafide purchasers of the suit property and the learned First Appellate Court has acted in exercise of its jurisdiction illegally or at least with material irregularity ignoring the provisions of Rule 23 and/or Rule 25 of order 41 of the code. The learned First Appellate Court seriously erred in exercising the jurisdiction to remand the case for fresh disposal, that too from the stage of pleadings without coming to a conclusion that the learned Trial Court’s finding is erroneous and is liable to be set aside or reversed. On merits he would further submit that considering the facts and circumstances of the case, evidence brought on record the appeal before the First Appellate Court was liable to be dismissed on sole ground of non-joiner of necessary parties and specially when even before the learned First Appellate Court, there was no prayer made by the plaintiffs for the remand of the case and has prayed that the remand order made by the First Appellate Court may kindly be set aside and the Misc. Appeal be allowed. To substantiate his submission he has referred to the judgment of Hon’ble Supreme Court in case of Zarif Ahmed through legal representatives vs. Mohd. Farooq reported in 2015 (13) SCC 673 as well as Judgment of

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Hon’ble Supreme Court reported in 2023 SCC Online 146 in case of Arvind Kumar Jaiswal (D) through Lrs. vs. Devendra Prasad Jaiswal . The Hon’ble Supreme court in case of Zarif Ahmed (Supra) has held at para 13 as under:-

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“ 13 . No doubt, Section 107 of CPC empowers the appellate court to remand a case, but it simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 of Order XLI C.P.C provides that where evidence on record is sufficient, appellate court may determine the case finally. It is not a healthy practice to remand a case to trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, a case should be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case.”

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and the Hon’ble Supreme Court in case of Arvind (Supra) has

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held in paragraph 3 as under:-

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“ 3 . An order of remand prolongs and delays the litigation and hence, should not be passed unless the appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and the party complaining has suffered material prejudice on that account. Where evidence has already been adduced and a decision can be rendered on appreciation of such evidence, an order of remand should not be passed remitting the matter to the lower court, even if the lower court has omitted to frame issue(s) and/or has failed to determine any question of fact, which, in the opinion of the appellate court, is essential. The first appellate court, if required, can also direct the trial court to record evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be taken on record for deciding the case by the appellate court”

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Learned counsel for the plaintiffs/respondent Nos. 1 to 3 would

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submit that the plaintiffs preferred an appeal against the judgment and decree dated 15.02.2000 passed in Civil Suit No.

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88-A/2002 by which it has remanded the suit with direction to implead the mother, brother of the plaintiffs as party to the suit as they are necessary party wherein the title on the suit lands belongs to joint Hindu family is in issue and also the share of the parties are to be determined, as such the learned First Appellate Court has rightly held that the mother and brother of the plaintiffs are necessary parties wherein the share of co-shareres of joint family is to be determined. The Lacuna left in the trial court is liable to be cured while remanding the case as objection as to non-joinder of Kartik Ram as party to the case has been raised by the defendant No. 7 and 8 Aman and Raman in their written statement. The learned trial court has ignored the objection regarding the non-joinder of necessary party in the suit, as such the learned First Appellate Court has rightly remanded the matter for addition of necessary party which ought to be directed by the trial court under Order 1 Rule 9, 10(2) of Civil Procedure Code. It has also been contended that the learned Trial Court has also failed to frame the issue regarding non-joinder of necessary party. He would further submit that findings of the learned First Appellate Court are supported by the judgment of Hon’ble Supreme Court in case reported in 2018 (18) SCC 358 in case of Hiya Associater & Other vs. Nakshatra Properties Pvt. Ltd. wherein the Hon’ble Supreme Court has held as under:-

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“17. In our opinion, the remand of a case to the Subordinate Court is considered necessary when the Superior Court while exercising its appellate or revisionary jurisdiction finds that the Subordinate Court

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has failed to decide some material issues arising in the case or there is some procedural lacuna noticed in the trial, which has adversely affected the rights of the parties while prosecuting the suit/proceedings or when some additional evidence is considered necessary to decide the rights of the parties which was not before the Trial Court etc. (See Order 41 Rules 23, 23-A, 24 and 25 of the Code of Civil Procedure, 1908). Such was not the case here. ”

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It has also been contended that the learned First Appellate Court has directed to frame issue and decide the suit after affording the proper opportunity of hearing to the newly added parties, however, the trail court is permitted to consider the material on the trial court record i.e. the evidence and document before the trial Court and would submit that the order/judgment dated 27.01.2023 passed by learned Additional District Judge Bemetara in Civil Appeal No. 165-A/2002 is not liable to be interfered by this Court and would pray for dismissal of the appeal.

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I have heard learned counsel for the parties and perused the record.

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After having heard learned Counsel representing the parties in the facts of the case, it is required to be seen whether the order passed by the learned Lower Appellate Court directing remand is within the purview of Proviso to Section 99 and the procedure prescribed under Rule 23-A of Order 41 of CPC or the Lower Appellate Court acceded from its power while passing the impugned Judgment. To determine this question this Court has to consider the relevant provisions of Section 99 of CPC, Order 41 Rule 23, Rule 23-A and Rule 25 of CPC which reads as under:-

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“Section 99 of CPC. No decree shall be reversed or “substantially varied, nor shall any case be remanded in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Provided that nothing in this section shall apply to nonjoinder of a necessary party.

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Order 41 Rule 23 of CPC:- Remand of case by Appellate Court. Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

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Order 41 Rule 23-A of CPC:- 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 retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

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Order 41 Rule 25 of CPC:- Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

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On perusal of the relevant provisions, as per Section 99, the decree, if any, passed by the trial Court shall not be reversed or

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substantially varied nor the case shall be remanded in appeal merely due to misjoinder or non-joinder of the parties or causes of action or any error, defect or irregularity in any proceedings in the suit not effecting the merit of the case or jurisdiction of the court. But the proviso puts an embargo to the applicability of the provisions of Section 99, in case of non-joinder of “necessary” party found by the Court. Thus it is clear, due to non-joinder of “necessary” party, in view of proviso, aid of Section 99 CPC would not available to the appellant. The lower Appellate Court recorded the findings that mother of the plaintiffs and 4^th brother are “necessary party” to the suit as the learned First Appellate Court while remanding the matter has clarified that the mother and brother of the plaintiffs are necessary parties wherein the share of co-shareres of joint Hindu family property is to be determined.

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As per Order 41 Rule 23 of the CPC remand by the Appellate Court, may be directed when the suit is decided on any primary point reversing the decree. The Appellate Court can further direct to decide the issue or issues by re-admitting the suit on its original number, as per law after recording the evidence. Rule 23 A of Order 41 CPC was inserted by Act of 104 of 1976 w.e.f. 01.02.1977 by which as specified if the suit has been decided otherwise then on preliminary point and if re-trial is considered necessary by Appellate Court reversing the decree under appeal, the remand can be directed. As per Rule 25 which as exist was prior to the said amendment makes it clear that in case the Trial Court omitted to frame or try any issue or to determine

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any question of facts which the Appellate Court deems it essential for decision of the suit on merit, after framing the issue and referring the same for trial to the Court who passed the decree, may direct to take such evidence as required while remanding. Therefore, looking to the aforesaid it is apparent that remand is permissible if a suit is decided on preliminary issue as per Rule 23 and if re-trial considered necessary as per Rule 23-A and on any issue which in the opinion of the Court is required to be decided essentially as per Rule 25 and for taking the additional evidence as per Rule 28 and 29 of Order 41 of CPC.

¶119

On perusal of the impugned judgment and facts of the case, it is not in dispute that the Judgment of remand passed by the learned Lower Appellate Court is in exercise of the power under Rule 23-A of the Order 41 of the CPC with the aid of Proviso to Section 99 of CPC, therefore, to the said extent it may be seen such remand is in conformity with law and is permissible.

¶120

The Hon’ble Supreme Court in case of Jagannathan vs. Raju Singamani & others reported in 2012 (5) SCC 540 has considered the power of remand by the appellate court and has held at para 7 to 9:-

¶121

“7. Order 41 Rule 23A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court.

¶122

Insofar as Order 41 Rule 25 of the Code is

¶123

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¶124

concerned, the appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue/s.

¶125

So far as the present case is concerned, the trial Court had disposed of the suit on merits and not on a preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh after giving parties an opportunity to lead evidence - oral as well as documentary. The nature of the order passed by the appellate Court leaves no manner of doubt that such order has been passed by the appellate Court in exercise of its power under Order 41 Rule 23A of the Code.”

¶126

Again the Hon’ble Supreme Court in case of Bachahan Devi & Another vs. Nagar Nigam, Gorakhpur & Another reported in 2008 (12) SCC 372 has held in paragraph 10 to 12 as under:-

¶127

“10. Under Order 41 Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows:

¶128

"As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings relating to said legal and factual

¶129

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¶130

issues after itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable in the present matter."

¶131

A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order 41 Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor.

¶132

Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from

¶133

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¶134

the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa² , where it was inter-alia observed in para 5 as follows:

¶135

"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul³ .”

¶136

Again the Hon’ble Supreme Court reported in case of Syeda Rahimunnisa vs. Malan Bi (Dead) By Legal Representatives & Another reported in 2016 (10) SCC 315 has held in paragraph 36 as under:-

¶137

“36. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order 41 Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order 41 of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.”

¶138

Coming to the facts of the case and also considering the fact that the defendant Nos. 7 to 8 in their written statement have taken objection about non-impleading one Kartik Ram as defendant in the suit as the suit property bearing Khasra No. 646 area 1.53 acre has been sold by Awadhram to Anant Singh and after

¶139

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partition between Anant Singh the said property has been recorded in the name of Kartik Ram and the said Kartik Ram was necessary party as he is in possession of the ½ of suit property bearing Kharsa No. 645 area 1.53 acre, but he has not been arrayed as respondent, thus, it is non-joinder of necessary party. The learned First Appellate Court has assigned a reason that since suit property is ancestral property and the mother and 4^th brother have not been impleaded as party to the case and their interest will be adversely affected, as such they are necessary party. Thus, the First Appellate Court has remanded the matter with a direction to the learned Trial Court that the evidence and material on record and if the newly added plaintiffs mother and son intent to lead any evidence or to file written statement, they should be given an opportunity and there was remand with specific directions which will not cause delay in conclusion of trial. Therefore, the submission made by the learned counsel for the appellants that it may cause delay is incorrect submission which deserves to be rejected and accordingly it is rejected.

¶141

On perusal of above, it is clear that inherent powers at the appellate Court can be availed ex debito justitiae only in the absence of express provisions in the Civil Procedure Code. In the exceptional cases the Court can exercise the power of remand dehors the Rule 23 and 23 A of the Order 41 CPC. As per the ratio of the said judgment in exceptional cases the Court may exercise the power of remand even dehors the Rule 23 and 23 A of the Order 41 of the CPC. Thus, after the amendment Act

¶142

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No.104, dated 01.02.1977, as per proviso to Section 99 if there is a defect of non-joinder of “necessary” party and the Lower Appellate Court if records a finding that re-trial is necessary, by setting aside the decree of Trial Court, the Appellate Court may direct remand in exercise of the powers of Rule 23 or 23A of CPC or even dehors the rule in exceptional cases, in view of ratio of the above judgment.

¶144

As per the findings and reasoning given by the learned First Appellate Court it is quite vivid that the mother and 4^th brother were found to be the “necessary party” being legal heirs of husband Awadhram and son of Awadhram, to pass a declaratory decree sought by the plaintiffs. However, in the said circumstances, joining mother and son of Late Awadhram was rightly found “necessary party” by the Lower Appellate Court. It is to observe that appellants have not said that they are not the necessary party and not assailed such findings. Once the Court found that the wife of Late Awadhram and 4^th son of Late Awadhram are the “necessary party” in a suit filed for declaration by the plaintiffs who are his other sons, there is no impediment in remanding the case after following the procedure as contemplated under Order 41 of Rule 23 and 23-A of CPC.

¶145

Therefore, considering the law laid down by the Hon’ble Supreme Court and looking at the nature of the finding recorded by the Lower Appellate Court, in the opinion of this Court, the case at hand is a case in which the power under Order 41 Rule 23 and 23-A read with Proviso to Section 99 of the CPC has rightly been exercised by Lower Appellate Court, having no

¶146

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scope of interference in this appeal.

¶148

The appeal deserves to be dismissed and accordingly it is dismissed. This Court has stayed the further proceeding of the trial court vide its order dated 29.03.2003 and more than 20 years have been lapsed It is directed that the parties shall appear before the learned Civil Judge, Class-I Bemetara on 28.03.2024 and the learned Trial Court will proceed as per direction given by the first Appellate Court and make and endeavor to complete the trial within 9 months from the date of appearance i.e. 28.03.2024. As the learned First Appellate Court has already granted liberty to the Trial Court to consider the evidence material already on record.

¶149

Interim order passed by this Court on 29.03.2003 is vacated.

¶150

26. A decree be drawn up accordingly.

¶151

Sd/-

¶152

(Narendra Kumar Vyas)

¶153

Judge

¶154

Manish

Chandrashekhar v. Pramod Kumar

Case brief

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Chandrashekhar v. Pramod Kumar

Case brief

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