Ajay Kumar Vs Ajay Sidara

1 - Ajay Kumar S/o Late Sahdev Prasad Dewangan Aged About 57 Years R/o Kumharpara, Juna Bilaspur, Police Station- City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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2 - Manoj Kumar S/o Late Sahdev Prasad Dewangan Aged About 49 Years R/o Kumharpara, Juna Bilaspur, Police Station- City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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3 - Laxmi Prasad Dewangan S/o Late Jivanlal Dewangan Aged About 72 Years R/o Puspanjali Nagar, Karabala Road, Bilaspur, Police StationCity Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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4 - Jitendra Kumar Dewangan S/o Laxmi Prasad Dewangan Aged About 42 Years R/o Puspanjali Nagar, Karabala Road, Bilaspur, Police StationCity Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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5 - Ravi Kumar S/o Late Santram Dewangan Aged About 41 Years R/o Kumharpara Santi Lodge Marg, Juna Bilaspur, Police Station- City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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6 - Shrikant S/o Late Santram Dewangan Aged About 39 Years R/o

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Kumharpara Santi Lodge Marg, Juna Bilaspur, Police Station- City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

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... Appellant (s)

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versus

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1 - Ajay Sidara S/o Late Hariram Sidara Aged About 38 Years R/o Maharani Vidyalay, Dayalband Bilaspur, Tahsil And District Bilaspur, Chhattisgarh.

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2 - Khagendra Manhar S/o Sevakram Manhar Aged About 58 Years R/o Bharti Nagar Chowk, Bilaspur, Owner Of Astha Petrol Pump Vyapar Vihar Road, Tahsil And District- Bilaspur, Chhattisgarh.

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3 - State Of Chhattisgarh Through Collector Bilaspur, Chhattisgarh.

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4 - Jai Jinas S/o Late Pratap Singh Jinas Aged About 65 Years R/o Near About Tifra Over Bridge, Jarhabhata Raipur Road, Behind Hotel Platinum Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh.

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5 - Vinay Kumar Saluja S/o Mahendra Saluja Aged About 56 Years R/o Gandhi Chowk Bilaspur, Proprietor Hotel Celebrity Bilaspur, Tahsil And District Bilaspur, Chhattisgarh.

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6 - Harsha Rana W/o Tishu Rana Aged About 45 Years R/o Tifra Bilaspur, Landmark Chandela Vihar Priydarshniya Nagar Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh.

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…. Respondent(s)

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(Cause title is taken from CIS)

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For Appellants	: Mr. Ashok Kumar Shukla, Advocate alongwith Mr. Amit Kumar and Mr. Vikas Ghritlahre,Advocates
For Respondents No. 1	: Mr. B.P. Sharma, Advocate alongwith Mr. K.N. Singh, Advocate

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For Respondent No.6 Mr. Curtis Collins, Advocate For State : Mr. Anand Gupta, Dy. Govt. Advocate

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Hon'ble Shri Justice Bibhu Datta Guru

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C A V Judgment

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The present appeal has been filed by the plaintiffs under Order 41 Rule 1 of the Code of Civil Procedure, 1908, assailing the judgment dated 20.03.2024 passed by the learned 6^th Additional District Judge, Bilaspur (C.G.) in Civil Appeal No. 29-A/2022 ( Ajay Sidara vs. Ajay Kumar & Ors .), reversing the judgment and decree dated 19.08.2016 passed by the learned 4^th Civil Judge, Class-I, Bilaspur (C.G.), in Civil Suit No.37-A/2011 ( Ajay Kumar & Others v Khagendra Manhar & Others ), whereby the civil appeal filed by one Ajay Sidara (who was not impleaded as a party in the civil suit) was allowed and the judgment and decree of the trial Court is set aside by the learned First Appellate Court and the case is remanded back to the trial Court for fresh adjudication with a direction to restore the civil suit to its original number, affording the parties opportunity of hearing and to adduce evidence. For the sake of convenience, the parties shall hereinafter be referred to as per their status before the Trial Court.

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In the present case, a third party, namely Ajay Sidara, who was not impleaded as a party in the original civil suit, preferred an appeal under Section 96 of the CPC before the learned First Appellate Court. It was contended by him that the suit property had initially been sold by defendant No.1 (Khagendra Manhar)/

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respondent No.2 herein to Smt. Harsha Rana (respondent No.6 herein) in the year 2009, and thereafter, he had purchased the same property from Smt. Harsha Rana by way of a registered sale deed dated 25.07.2020. He further submitted that the judgment and decree dated 19.08.2016 had been passed ex parte by the trial Court without impleading him or his predecessor-intitle, thereby violating the principles of natural justice. It was also urged that he came to know about the said decree only during execution proceedings when interference was caused with his possession, and being an aggrieved person claiming right, title, and possession over the suit property, he was entitled to challenge the said judgment and decree before the First Appellate Court.

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Case of the plaintiffs :

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The plaintiffs instituted the suit seeking declaration of title and permanent injunction in respect of land bearing Khasra No. 601/8 admeasuring 1440 sq. ft., situated at village Tifra, Bilaspur, pleading inter alia that the suit property was originally purchased by one Vinay Kumar Saluja through a registered sale deed dated 21.05.2002, who thereafter sold different portions of the said land to the plaintiffs by registered sale deeds dated 29.02.2004, pursuant to which the plaintiffs’ names were duly mutated in the revenue records and they came into peaceful possession. It was further pleaded that the plaintiffs got the land demarcated through

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competent authority and have been in continuous possession; however, on 04.12.2010, defendant No.1 attempted to encroach upon the suit land by starting construction and threatened the plaintiffs, thereby giving rise to the cause of action. The plaintiffs further asserted that the land claimed by defendant No.1 had already been affected by road widening and stood vested in the municipal authority, and therefore, defendant No.1 has no right or interest over the suit property. Accordingly, the suit has been filed seeking declaration of title and permanent injunction restraining interference with possession.

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In the suit, the defendants remained absent and were proceeded ex parte , and no written statement was filed on their behalf.

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After framing the issues and upon due appreciation of the oral as well as documentary evidence available on record, the learned Trial Court allowed the suit filed by the plaintiffs, holding that the plaintiffs have established their claim over the suit land.

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Aggrieved by the said judgment and decree dated 19.08.2016, a third party, namely Ajay Sidara (respondent No.1 herein) - who was not originally impleaded in the suit but claims to have subsequently purchased the suit property through a registered sale deed dated 25.07.2020 preferred an appeal under Section 96 of the Code of Civil Procedure before the learned First Appellate Court, contending that the decree was passed without affording him an opportunity of hearing.

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The learned First Appellate Court, on re-appreciation of the entire evidence on record, reversed the findings recorded by the learned Trial Court, allowed the appeal in favour of the appellant therein (Ajay Sidara), and remanded the matter back to the Trial Court for fresh adjudication vide the impugned judgment. Accordingly, the matter was remitted to the Trial Court for fresh adjudication with a direction to restore the civil suit to its original number, affording the parties opportunity of hearing and to adduce evidence and deciding the case afresh on its own merits. Hence, the present appeal by the plaintiffs.

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Contention of the parties :

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(i) Learned counsel for the appellants submits that the impugned judgment of remand passed by the learned Appellate Court is wholly without jurisdiction and contrary to the settled principles governing remand under Order 41 Rules 23, 23-A and 24 of the CPC. He submits that the first appeal itself was not maintainable, as the same was filed by a stranger to the suit, namely Ajay Sidara, without obtaining leave of the Court, and therefore the entire proceedings are vitiated. He also submits that the objection regarding non-joinder of necessary parties was never raised by the original defendant No.1 Khangendra Manhar during trial, nor was the ex parte judgment and decree dated 19/08/2016 ever challenged by him either by filing an appeal or by moving an application under Order 9 Rule 13 CPC, and hence such objection

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could not have been permitted to be raised at the instance of a subsequent purchaser.

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(ii) Learned counsel further submits that the subsequent purchaser, having acquired the property much after the decree, cannot be permitted to reopen the concluded proceedings, particularly when the decree has already been executed on 02/02/2021 and possession has been delivered to the decreeholder. The proper remedy available to such purchaser, if any, is to institute an independent suit and not to assail a duly executed decree in collateral proceedings. Learned counsel submits that both Harsha Rana as well as Ajay Sidara had unsuccessfully approached the executing court by filing applications under Section 151 CPC seeking stay of execution, which were rejected and have attained finality. He also contended that the lands of the appellants and the respondents are entirely distinct, having separate survey numbers, boundaries and areas, which is evident from the sale deeds and the demarcation conducted during trial. The trial Court, after due demarcation and appreciation of evidence, had rightly decreed the suit, and therefore the remand order is unsustainable. Learned counsel further contends that the conduct of respondent Ajay Sidara, including attempts to influence the proceedings as noted in the order sheet, reflects abuse of the process of law. He lastly submits that in an appeal under Order 43 Rule 1(u) CPC against an order of remand, there is no requirement for framing substantial questions of law, and even

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otherwise, the impugned order suffers from patent illegality and deserves to be set aside.

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(a) On the other hand, learned counsel for the respondents submit that the present miscellaneous appeal, preferred under Order XLIII Rule 1 of the CPC, is wholly misconceived, not maintainable, and liable to be dismissed at the threshold. Learned counsel would submit that the learned First Appellate Court has rightly set aside the judgment and decree dated 19.08.2016 and remanded the matter to the Trial Court for fresh adjudication after affording an opportunity to the necessary parties, including respondent No. 1 and respondent No. 6, to participate in the proceedings and defend their rights over the suit property. Learned counsel would also submit that the scope of an appeal under Order XLIII Rule 1 CPC is limited and akin to that under Section 100 CPC, and therefore, the appellant cannot agitate questions of fact or reappreciation of evidence. Placing reliance on the judgments in Narayanan v. Kumaran reported in (2004) 4 SCC 26 and Jegannathan v. Raju Sigamani reported in (2012) 5 SCC 540 , learned counsel contend that such appeal can be entertained only on substantial questions of law, and the High Court must confine itself to examining the legality of the remand order alone.

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(b) Learned counsel would further submit that in the present case, the remand has been ordered under Order XLI Rule 23-A CPC, as the suit was earlier decided on merits without proper opportunity

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to all necessary parties, which is legally permissible and justified. Learned counsel further submits that the principle of finality of litigation cannot be invoked to perpetuate injustice or fraud. Relying upon the judgment in S.P. Chengalvaraya Naidu v. Jagannath reported in (1994) 1 SCC 1 , learned counsel contends that any decree obtained by fraud is a nullity in the eyes of law and can be challenged at any stage. It is specifically alleged that the plaintiff/appellant obtained the ex parte decree by suppressing material facts and by adopting fraudulent means, including manipulation and forgery of documents, particularly in relation to Smt. Harsha Rana, for which an FIR No. 560/2021 has also been lodged. He also contends that the plaintiffs deliberately avoided impleading necessary parties and even interfered with their right to defend by ensuring their non-appearance, thereby securing an ex parte decree over a valuable property. Such conduct disentitles the appellants from any equitable relief. The remand order, therefore, ensures a fair trial by granting opportunity to all affected parties and cannot be faulted. Learned counsel lastly prayed that the present appeal be dismissed as devoid of merit and the order of remand passed by the learned First Appellate Court be upheld. Learned counsel contended that in the suit, the plaintiffs have not impleaded Harsha Rana whereas they only impleaded Khagendra Manhar, this act of the plaintiffs comes under the purview of fraud and contrary to the well settled principle of law laid down by the Supreme Court.

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I have heard learned counsel for the respective parties and the impugned judgments and decrees passed by the learned trial Court as also the learned First Appellate Court have been carefully examined.

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Analysis :

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Upon careful consideration of the entire record, this Court finds that although the learned Trial Court had decreed the suit in favour of the plaintiffs on the basis of the evidence available on record, the said adjudication was rendered in absence of necessary parties having a direct interest in the suit property. The Trial Court proceeded ex parte against the defendants therein without examining whether the persons having subsisting title over the suit property were before the Court.

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It is an admitted position emerging from the record that prior to institution of the suit on 06.12.2010, the original defendant Khagendra Manhar had already sold the suit property in favour of Smt. Harsha Rana by a registered sale deed dated 02.12.2009. Thus, on the date of institution of the suit, the said defendant (Khagendra Manhar) had no subsisting right, title or interest in the suit property. Despite this, the plaintiffs chosen not to implead Smt. Harsha Rana, who was the actual holder of title at the relevant time.

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The learned First Appellate Court has rightly appreciated this factual and legal position and recorded a finding that Smt. Harsha

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Rana, and thereafter the subsequent purchaser Ajay Sidara, are necessary parties, as any adjudication in respect of the suit property would directly affect their rights. Non-impleadment of such necessary parties has rightly been held to be fatal to the case of the plaintiffs.

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The principle relating to necessary parties is well settled that a person whose presence is essential for complete and effective adjudication of the dispute must be impleaded, failing which the decree passed becomes vulnerable. In the present case, the nonimpleadment of the transferee, in whose favour the title stood transferred even prior to the institution of the suit, strikes at the very maintainability of the proceedings.

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This Court finds no infirmity in the said finding. It is a settled principle that where a person, in whose favour title stands transferred prior to institution of the suit, is not impleaded, the decree passed in such proceedings cannot be treated as binding upon such person. In absence of necessary parties, effective and complete adjudication of the dispute is not possible. This Court also finds that the learned First Appellate Court has exercised its jurisdiction under Order XLI Rule 23-A CPC in a proper and justified manner. The remand has not been ordered mechanically, but only after recording a finding that the suit itself was decided without impleadment of necessary parties and without giving them an opportunity of hearing.

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The objection of the appellants that the appeal preferred by Ajay Sidara was not maintainable, as he was not a party to the suit, does not merit acceptance. The learned first appellate Court has rightly observed that a person who is prejudicially affected by a judgment and decree is entitled to challenge the same.

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The Hon’ble Supreme Court in V.N. Krishna Murthy & Anr. vs. Ravikumar & Ors. , (2020) 9 SCC 501 , held that a non-party can maintain an appeal with leave if he is a “person aggrieved” and the said decision squarely applies to the case at hand. Further, the contention of the respondents that the decree was obtained without impleading necessary parties and thereby in violation of principles of natural justice also deserves consideration.

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Whether a person is a necessary party is essentially a question of fact, to be determined in light of the reliefs claimed in the suit. However, once it is established that such person is a necessary party, the issue becomes a question of law and, therefore, can be raised even for the first time at the appellate stage.

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The Hon’ble Supreme Court in S.P. Chengalvaraya Naidu (supra) has held that a decree obtained by playing fraud or by suppressing material facts cannot be sustained and is a nullity in the eyes of law.

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In the present case, the plaintiffs instituted the suit against a person who had already divested himself of title and failed to implead the actual owner of the property, thereby resulting in a

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one-sided adjudication. Such a decree cannot be allowed to stand merely on the ground of finality.

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In the case at hand, the order of remand passed by the learned First Appellate Court is based on the finding of non-joinder of necessary parties and violation of principles of natural justice, which goes to the root of the matter. The said finding cannot be said to be either perverse or contrary to law. The learned First Appellate Court has exercised its jurisdiction under Order XLI Rule 23-A CPC in a proper manner by remanding the matter to the Trial Court for fresh adjudication after impleadment of necessary parties and affording them opportunity of hearing. In cases where the foundational defect exists, remand is not only justified but necessary.

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The learned First Appellate Court has further rightly taken into consideration that the entire trial was conducted without affording opportunity to the persons having real interest in the suit property. In such circumstances, the decree passed by the Trial Court could not have been sustained merely on the ground that evidence was led by the plaintiffs.

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In view of the above, this Court is of the considered opinion that the learned First Appellate Court has not committed any error while setting aside the judgment and decree and remanding the matter to the Trial Court for adjudication of the same after impleading necessary parties i.e. Harsha Rana and Ajay Sidara.

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The finding that there was non-joinder of necessary parties, going to the root of the matter, is well-founded and based on proper appreciation of record. In fact, the remand order has been passed to ensure that all necessary parties are impleaded and are afforded proper opportunity to contest the matter. The direction to restore the suit and permit the parties to file pleadings and lead evidence is in furtherance of the principles of natural justice and cannot be said to be unwarranted.

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This Court is also of the view that in the facts of the present case, where the very foundation of the suit was defective due to absence of necessary parties, the learned First Appellate Court was justified in remanding the matter for fresh adjudication rather than deciding the matter finally in absence of complete pleadings and participation of all concerned parties. The contention of the plaintiffs that the remand has unnecessarily prolonged the litigation cannot be accepted in the present factual matrix, as the defect in the suit was fundamental in nature and could not have been cured without affording opportunity to the necessary parties.

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Therefore, this Court finds that the impugned judgment passed by the learned First Appellate Court is based on correct appreciation of facts and law and does not suffer from any illegality or perversity warranting interference.

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In view of the foregoing analysis and applying the settled principles of law to the facts of the present case, this Court finds

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no infirmity or illegality in the impugned judgment dated 20.03.2024 passed by the learned First Appellate Court. The said judgment, whereby the decree of the Trial Court has been set aside and the matter has been remanded for fresh adjudication after impleadment of necessary parties and affording them due opportunity of hearing, is just, proper and in accordance with law. Consequently, the present appeal, being devoid of merit, deserves to be and is hereby dismissed.

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It is directed that the Trial Court shall proceed with further hearing, record additional evidence if necessary, and decide the suit in accordance with law and on its own merits, ensuring that all necessary parties are impleaded and given due opportunity of being heard. The parties are directed to appear before the Trial Court on 06/05/2026.

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Before parting with the case, it is made clear that this Court has not expressed any opinion on the merits of the matter. The learned Trial Court shall proceed to adjudicate the case independently, in accordance with law, and on the basis of the evidence that may be led by the parties, without being influenced by any observations made in this judgment.

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There shall be no order as to cost(s).

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$. Bhilwar/Gowri

Ajay Kumar v. Ajay Sidara

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Ajay Kumar v. Ajay Sidara

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