Sumitra Bai Vs Mu. Tapeshwari

being aggrieved by the impugned judgment and decree dated 15.01.2026 passed by the learned Principal District Judge, Jashpur, District Jashpur (C.G.) in Civil Appeal No. 25-A/2025 ( Mu. Tapeshwari & Ors. vs. Sumitra Bai & Anr. ), Mu. Tapeshwari is the legal heir of original plaintiff Parasnath, arising out of the judgment and decree dated 13.08.2024 passed by the learned Civil Judge, Class-II, Bagicha, District Jashpur (C.G.) in Civil Suit No. 01-A/2019 (Parasnath Gupta vs. Sumitra Bai & Anr. ), whereby the first appeal was partly 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 suit to its original number and to pass a fresh judgment and decree after affording due opportunity to the parties, in accordance with law.

¶24

The original plaintiff Parasnath instituted the suit for declaration of title and confirmation of possession over the land situated at village Kansabel, as described in Schedule ‘B’ of the plaint, bearing total Khasra No. 02 admeasuring 0.202 hectares pleading inter alia that originally the land bearing Khasra Nos. 281 (0.036 hectares) and 282 (0.287 hectares) stood recorded in the names of Ghuthal and Dhirjan as Bhumiswamis, out of which, in the year 1975–76, Ghuthal, in need of money for domestic purposes, sold a portion of the said land, i.e., Khasra No. 281 admeasuring 0.036 hectares and Khasra No. 282 admeasuring 0.166 hectares, to the plaintiff for a consideration of Rs.25,000/- and delivered possession thereof. Since then the plaintiff has been in continuous, peaceful and

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uninterrupted possession of the suit land, having constructed a house and boundary wall thereon prior to 23.06.1980 and residing therein thereafter, under the provisions relating to grant of lease to occupancy holders, a patta was granted in favour of the plaintiff on 26.01.1996 by the Sub-Divisional Officer, Bagicha with the consent of the original landowners, pursuant to which the plaintiff’s name was duly mutated in the revenue records. After a considerable lapse of time, defendant No.1 preferred an appeal before the Additional Collector, Jashpur, which was decided against the plaintiff, and the subsequent revision filed before the Board of Revenue, Bilaspur was also dismissed; thereafter, upon initiation of proceedings for taking possession of the suit land on the basis of the said orders, the plaintiff, being aggrieved, has filed the present suit within limitation seeking declaration of title and confirmation of possession.

¶27

Per contra , the defendant No.1, in her written statement, has denied the plaint averments as false and fabricated, contending that the suit land originally belonged to her husband and other co-sharers as joint holders and was never partitioned or sold to the plaintiff. It is asserted that the alleged patta in favour of the plaintiff was fraudulently obtained and has already been set aside by the competent revenue authorities, including the Additional Collector and the Board of Revenue. The defendant further states that the plaintiff has no title over the suit land and is in unauthorized possession, attracting provisions relating to restoration of tribal land, and that no permission or due process was followed as required under the applicable land laws. It is also contended that earlier

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proceedings between the parties were decided against the plaintiff, and the present suit is not maintainable and is barred by limitation. Accordingly, dismissal of the suit has been prayed for.

¶30

Defendant No.2 was proceeded ex parte and no written statement has been filed on its behalf.

¶31

After hearing the parties and on consideration of the facts available on record and other materials, the learned trial Court dismissed the suit filed by the plaintiff. Against the said judgment and decree passed by the Trial Court, the legal heirs of original plaintiff preferred an appeal under Section 96 of the CPC before the learned First appellate Court. The learned First Appellate Court by the judgment impugned allowed the appeal filed by the plaintiff in part and remanded back the matter to the learned Trial Court for deciding the issue afresh with a direction to restore the suit to its original number and to pass a fresh judgment and decree after affording due opportunity to the parties, in accordance with law. Thus, this appeal by the defendant.

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Learned counsel for the appellant submits that the judgment and decree passed by the learned First Appellate Court is illegal, erroneous and contrary to law in view of the facts and circumstances available on record. She further submits that the learned First Appellate Court has failed to consider the legal provisions governing the maintainability of the suit. According to the learned counsel the learned first appellate Court utterly failed to appreciate the fact that the learned trial Court after considering the entire aspects of the

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matter in its true perspective has rightly dismised the suit of the plaintiff. She would submit that the appellate Court has wrongly remanded the matter, which is unsustainable in law. Learned counsel also contends that the impugned judgment and decree have been passed without proper appreciation of the settled legal position and in an arbitrary manner.

¶35

I have heard learned counsel for the appellant, perused the record and the impugned judgments with utmost circumspection.

¶36

Having considered the entire facts situation of the case and upon perusal of the record, it is evident that the learned Trial Court proceeded to decide the suit on merits and recorded findings on title, possession, limitation and jurisdiction, ultimately dismissing the suit. However, from the record as well as the judgment of the learned First Appellate Court, it clearly transpires that during the pendency of the suit, the original plaintiff expired and though an application under Order 22 Rule 3 CPC for bringing his legal representatives on record was allowed, necessary consequential amendment in the cause title was not carried out and the judgment and decree came to be passed in the name of a dead person. As such the defect strikes at the very root of the proceedings and renders the judgment and decree legally unsustainable.

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The learned First Appellate Court, while examining the aforesaid procedural irregularity, has rightly held that a judgment and decree passed in the name of a deceased party, despite substitution having been allowed, cannot be sustained in the eyes of law. It is a settled

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principle that once a party dies, the proceedings must continue in the name of the duly substituted legal representatives and failure to incorporate such substitution in the pleadings vitiates the final adjudication. In the present case, the defect is not merely technical but goes to the foundation of the decision-making process, thereby justifying interference. The remand order passed by the First Appellate Court is meant to ensure a fair trial and to allow the case to be properly decided after curing the defect.

¶40

In view of the above, this Court finds no illegality or perversity in the impugned judgment passed by the learned First Appellate Court warranting interference under Order 43 Rule 1(u) of CPC. The remand has been rightly ordered to afford an opportunity to the parties and to decide the matter afresh in accordance with law.

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Accordingly, the present appeal, being devoid of merit, deserves to be and is hereby dismissed , affirming the judgment and decree dated 15.01.2026 passed by the learned First Appellate Court. The learned Trial Court shall now proceed to decide the suit afresh on its own merits, expeditiously, in accordance with law.

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Both the parties are directed to appear before the Trial Court on 11/05/2026.

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Sd/- (Bibhu Datta Guru) Judge

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$. Bhilwar

Sumitra Bai v. Mu. Tapeshwari

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Sumitra Bai v. Mu. Tapeshwari

Case brief

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