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2018 DIGILAW 154 (BOM)

Leela v. Mandabai

2018-01-17

MANISH PITALE

body2018
JUDGMENT : 1. Aggrieved by the judgment and order dated 26.09.2016, whereby the appellate Court has remanded the matter to the Trial Court for framing of necessary issues and deciding the matter afresh, the appellants have filed this appeal under Order XLIII Rule 1 (u) of the Civil Procedure Code (CPC). The principal grievance of the appellants is that there was no need for the appellate Court to remand the matter to the trial Court because both parties were aware about the points in issue on which they had led evidence and the matter had been decided on merits by the trial Court while dismissing the suit. There was no prejudice caused to either party and that therefore, the order of remand was unjustified. 2. The facts leading up of the filing of the instant appeal are that one Mahadeo, father of Bapurao (predecessor of the respondents) and Purushottam (predecessor of the appellants) died, leaving behind the said two sons. The joint family owned two agricultural fields bearing Survey No.519 (New No.508) and Survey No.523/1 (New No.527/1) at Waigon, tahsil Samudrapur, district Wardha. It is the case of the appellants that there was an oral partition between the said Bapurao and Purushottam in which the Survey No.523/1 (New No.527/1) fell to the share of Bapurao and Survey No.519 (New No.508) fell to the share of Purushottam. It is their further case that in order to act upon the said oral partition, Bapurao executed a relinquishment deed on 25.01.1985 with respect to Survey No.519 (New No.508) as it had gone to the share of Purushottam in the said oral partition. In pursuance thereof, the said property bearing Survey No.519 (New No.508) was mutated in the name of Purushottam on 29.10.1990 as per the provisions of the Maharashtra Land Revenue Code. It is the case of the appellants that the said mutation was carried out after due notice to Bapurao. It is also stated that Bapurao had sold the property which had fallen to his share during his life time. 3. In the year 2002, Bapurao filed a suit for partition and separate possession in respect of the said property bearing Survey No.519 (New No.508), which had fallen to the share of Purushottam in the aforesaid oral partition, claiming a share in the same. 3. In the year 2002, Bapurao filed a suit for partition and separate possession in respect of the said property bearing Survey No.519 (New No.508), which had fallen to the share of Purushottam in the aforesaid oral partition, claiming a share in the same. But, Bapurao died during the pendency of the said suit and the same abated as his legal heirs were not brought on record. 4. Thereafter, in the year 2007 the respondents being legal heirs of deceased Bapurao filed a fresh suit bearing Regular Civil Suit No.33 of 2007 for partition and separate possession in respect of the said property bearing Survey No.519 (New No.508) which was lateron renumbered Regular Civil Suit No.163 of 2008. 5. The appellants, being defendants in the said suit, in the capacity of being legal heirs of Purushottam, filed their written statement opposing the said suit, in which they relied upon the aforesaid oral partition between Bapurao and Purushottam, as also the aforesaid relinquishment deed executed by Bapurao in favour of Purushottam. In the said suit, the trial Court framed the following issues and rendered its findings thereon:- ISSUES FINDINGS 1. Whether suit property is ancestral property left by Late Mahadeo @ Rodba Kshirsagar? In the affirmative 2. Do plaintiffs prove that being L.Rs. of late Bapuraoji Kshirsagar they are having their shares in the suit property? In the negative 3. Whether plaintiffs are entitled for the relief of partition and separate possession? If Yes, what should be their shares? In the negative. 4. In view of abatement in R.C.S.No.69/08(43/2002) whether plaintiffs are entitled to claim the relief as sought? In the affirmative. 5. Whether the suit claim is within limitation? In the affirmative. 6. Whether plaintiffs are entitled for the relief of declaration as prayed? In the negative. 7. Whether plaintiffs are entitled for the relief of injunction as prayed? In the negative. 8. Whether plaintiffs are entitled for the relief, inquiry about mesne profits as per Order 20 Rule 12 of C.P.C.? In the negative. 9. Whether suit is vaxacious to the knowledge of plaintiffs? If yes, whether defendants are entitled to claim compensatory costs as prayed? In the negative. 10 What order and decree? As per final order. 6. Both parties supported their stands by leading evidence. They took their respective stands in respect of the oral partition as well as the relinquishment deed which was exhibited as Exh.77. If yes, whether defendants are entitled to claim compensatory costs as prayed? In the negative. 10 What order and decree? As per final order. 6. Both parties supported their stands by leading evidence. They took their respective stands in respect of the oral partition as well as the relinquishment deed which was exhibited as Exh.77. The trial Court, upon elaborate discussion on the evidence and material on record, rendered its findings on the aforesaid issues and dismissed the suit of the respondents, holding that the appellants as legal heirs of Purushottam, had been able to prove that there was indeed an oral partition between Bapurao and Purushottam, evidenced by the relinquishment deed on record. 7. Aggrieved by the said dismissal of their suit, the respondents filed Regular Civil Appeal No. 241 of 2014 before the District Court at Wardha. By the impugned judgment and order, the said appellate Court framed only one point concerning the question as to whether it was necessary to remand the matter. The appellate Court came to the conclusion that since specific issues regarding oral partition and relinquishment deed were not framed by the trial Court, it was necessary to remand the matter for framing of issues on the said points and for a decision afresh. Accordingly, by the impugned judgment and order, the order of the trial Court was set aside and the matter was remanded back to frame necessary issues and answer the matter afresh. 8. It is against this judgment and order of the appellate Court, that the present appeal has been filed under Order XLIII Rule 1 (u) of the CPC by the appellants. 9. Mr. Rohit Joshi, learned counsel appearing on behalf of the appellants has submitted that there was no need for the appellate Court to have remanded the matter to the trial Court because both parties to the suit were clearly aware of the disputed issues and that they had indeed produced evidence on record in respect of all the issues including the question of oral partition and relinquishment deed. It is contended that even if specific issues in respect of oral partition and relinquishment deed were not framed, both parties were aware about the controversy between them and that no prejudice was caused to either party, particularly the respondents (plaintiffs) before the trial Court. It was also contended that issue Nos. It is contended that even if specific issues in respect of oral partition and relinquishment deed were not framed, both parties were aware about the controversy between them and that no prejudice was caused to either party, particularly the respondents (plaintiffs) before the trial Court. It was also contended that issue Nos. 2 and 3 framed by the trial Court covered the issues about oral partition and relinquishment deed. On this basis it was argued that the remand order was unjustified and that it was required to be set aside for the matter to be decided on merits by the appellate Court. The counsel for the appellants relied upon judgments passed by the Hon’ble Supreme Court and this Court in the matters of Sayeda Akhtar .vs. Abdul Ahad- 2003(7) Supreme Court Cases 52, Kannan (dead) by L.Rs. And another .vs. V.S. Pandurangam (dead) by Lrs. & Ors. - 2007(15) Supreme Court Cases 157, Bhuwan Singh .vs. Oriental Insurance Company Ltd. and another – 2009 (5) Supreme Court Cases 136, Sk. Ibrahim Sk. Mohamood and others .vs. Mehmood Sk. Vazir – AIR (Bombay) 357 and Executive Engineer, Works Division Xxv (nh) Pwd & Anr. .vs. Sara Gracious – 2011 (3)Mh.L.J. 232. 10. On the other hand, Mr. N.B. Bargat, learned counsel appearing on behalf of the respondents submitted that the appellate Court was justified in remanding the matter to the trial Court because specific issues in respect of the oral partition and the relinquishment deed were not framed by the trial Court while dismissing the suit. It was submitted that such specific issues ought to have been framed and that failure to do so, had rendered the judgment and order of the trial Court as erroneous. The counsel appearing for the respondents sought to address this Court on the merits of the matter by raising the question of the effect of the relinquishment deed being unregistered. In that context, the learned counsel for the respondents sought to rely upon judgments of the Hon’ble Supreme Court and this Court in the case of Yellapu Uma Mahesgwari and anr .vs. Buddha Jagadheeswararao and ors. - 2015 ALL SCR 3388, Nilkanth s/o Sampat Khandade .vs. Bhaurao s/o Sampat Khandade and another – 2008(4) ALL MR 383 and Brijalal Kolsya Kokani & anr. .vs. Poslya Ananda @ Budha Kokani – 2009(1) ALL MR 87. 11. - 2015 ALL SCR 3388, Nilkanth s/o Sampat Khandade .vs. Bhaurao s/o Sampat Khandade and another – 2008(4) ALL MR 383 and Brijalal Kolsya Kokani & anr. .vs. Poslya Ananda @ Budha Kokani – 2009(1) ALL MR 87. 11. Having considered the rival contentions as also the pleadings and documents on record, the question that arises for consideration is whether the order of remand passed by the Appellate Court was justified and whether the parties, particularly the respondents (plaintiffs) had suffered any prejudice due to failure on the part of the trial Court to frame specific issues in respect of oral partition and relinquishment deed. 12. The most vital aspect to be examined in such cases where a matter is remanded for framing up of issues and decision afresh, is as to whether there is any prejudice caused to either party due to absence of framing of any specific issue by the trial Court while deciding the suit. Merely because an issue has not been specifically framed cannot be the basis for remanding the matter, without examining the aspect of prejudice suffered by either party to the litigation before the trial court. The crucial aspect to be examined is whether the parties were aware about the issue and did they adduce evidence in respect of the same and further whether submissions and arguments were addressed on the said issue by the parties before the trial Court. If it is found that the parties were clearly aware about such issue and that they had contested the same by leading evidence in support of their rival claims on such issue, merely because an issue in specific words has not been framed by the trial Court cannot be the basis for setting aside an order of the trial Court. In fact, if there is discussion of the rival claims of the parties on such issue by the trial Court and reference is made to the evidence led by the parties on the same, it cannot be said that the judgment and order of the trial Court has to be set aside only on the ground that such issue has not been specifically framed by the trial Court while disposing of the suit. 13. 13. In the instant case, the grievance sought to be made by the respondents (plaintiffs ) is that specific issues were not framed by the trial Court on the questions or oral partition and relinquishment deed. But, a perusal of the judgment and order of the trial Court shows that the entire case of the appellants (defendants) revolves around oral partition and relinquishment deed at Exh.77. The respondents (plaintiffs) have contested the claims of the appellants (defendants) on the said aspects of oral partition and relinquishment deed and the trial Court has elaborately discussed these aspects while rendering its findings. 14. In fact, the relinquishment deed was placed on record at Exh.77, which was contested by the respondents (plaintiffs) by claiming that Purushottam (predecessor of the appellants/defendants) had taken signatures of Bapurao (predecessor of the respondents) on blank stamp papers and by misusing them, the said relinquishment deed was executed. On this basis they also contested the claim of oral partition of the appellants (defendants). Not only this, the appellants (defendants) examined the scribe of the said relinquishment deed at Exh.77 who testified that Bapurao (predecessor of the respondents) had instructed him to scribe the document and that the said Bapurao signed the document after understanding the contents of the same. Thus documentary and oral evidence was led by the parties before the trial Court on the aspects of oral partition and relinquishment deed. 15. The trial court has discussed in detail about the aspects of oral partition and the relinquishment deed from paragraphs 24 to 42. These are the paragraphs that constitute the reasoning for issue Nos. 2 and 3 framed by the trial Court. Although the aforesaid two issues do not specifically refer to the oral partition and the relinquishment deed, the trial Court has discussed and deliberated upon the oral and documentary evidence led by the parties on the aspects of oral partition and the relinquishment deed, while rendering findings on issue Nos. 2 and 3. Therefore, there is substance in the contention raised by the learned counsel appearing on behalf of the appellants that issues of oral partition and relinquishment deed were covered by the trial Court under the aforesaid issue Nos. 2 and 3, although specific issues in so many words concerning oral partition and relinquishment deed were not framed by the trial Court. 16. 2 and 3, although specific issues in so many words concerning oral partition and relinquishment deed were not framed by the trial Court. 16. The counsel for the appellants is, therefore, justified in relying upon the law laid down by the Hon’ble Supreme Court in this regard in the case of Sayeda Akhtar .vs. Abdul Ahad (Supra) wherein, it has been held as follows:- "10. Furthermore, as indicated hereinbefore, the plaintiff sought for a decree for eviction against the defendant also on the ground of commission of nuisance. It is true that the trial court did not frame any specific issue therefore but a bare perusal of the judgment passed by the learned trial court will clearly demonstrate that the parties were aware thereabout and not only adduced evidence in that behalf but also advanced their respective submissions in relation thereto. The court of appeal formulated two specific questions, for determination of the appeal, one of them being: "Whether the appellant had created nuisance in the premises in question"? It was held: "On the point of nuisance, though, no issue was framed by the lower court yet it is clear on the basis of relevant pleadings and evidence produced that the parties were well familiar with the existence of the said issues. Under the circumstances, in face of the want of framing of issues, the prejudice was not caused nor were the proceedings vitiated, it is not proper to remand the case back in view of the decision of the Supreme Court reported as Nedunuri Kameswaramma v. Sampati Subba Rao." In the other judgments relied upon by the counsel for the appellants, it has been consistently held that where it is found that no prejudice has been caused to the parties due to nonframing of specific issues, an order of remand by the appellate Court is not justified. 17. The learned counsel appearing for the respondents has not been able to point out the prejudice suffered by the respondents before the trial Court due to non-framing of issues on the aforesaid specific aspects. 17. The learned counsel appearing for the respondents has not been able to point out the prejudice suffered by the respondents before the trial Court due to non-framing of issues on the aforesaid specific aspects. In the face of the detailed discussion and elaborate reference to the evidence and arguments put forth by the rival parties before the trial Court on the said aspects of oral partition and relinquishment deed, the learned counsel appearing for the respondents could not show as to what was the prejudice suffered by the respondents in the instant case. A perusal of the grounds of appeal raised above by the respondents before the Appellate Court shows that other than merely stating that the lower Court had failed to frame proper issues, there was no ground raised in respect of any prejudice suffered by the respondents. There was nothing to demonstrate that such prejudice was suffered and the emphasis was on the effect of the relinquishment deed being an unregistered document. Thus, the respondents in their appeal before the appellate Court were concerned about the merits of the matter, particularly the validity of the relinquishment deed, which was a fall out of the oral partition between Bapurao and Purushottam. In fact, the learned counsel appearing for the respondents raised this aspect of non-registration of the relinquishment deed as being fatal to the case of the appellants herein. But, this is an aspect concerning the merits of the matter and in the instant appeal under Order XLIII Rule 1 (u) of the CPC, this Court is concerned about the validity of the remand order and not the merits of the case of either party. 18. In fact, in a recent judgment passed by the Hon’ble Supreme Court in J. Balaji Singh .vs. Diwakar Cole and ors (Civil Appeal No.5540/2017- 24th April, 2017), the Hon’ble Supreme Court while examining the scope of power to be exercised by the Appellate Court under Order XLIII Rule 1(u) of the CPC, has held as follows:- "23) So far as the impugned order is concerned, the High Court, in our view, committed jurisdictional error when it also again examined the case on merits and set aside the judgment of the first Appellate Court and restored the judgment of the Trial Court. The High Court, in our opinion, should not have done this for the simple reason that it was only examining the legality of the remand order in an appeal filed under Order 43 Rule 1(u) of the Code. Indeed, once the High Court came to a conclusion that the remand order was bad in law then it could only remand the case to the first Appellate Court with a direction to decide the first appeal on merits. 24. The High Court failed to see that when the first Appellate Court itself did not decide the appeal on merits and considered it proper to remand the case to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits. Moreover, Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court. 25) It is well settled law that the jurisdiction to decide the appeal on merits can be exercised by the Appellate Court only when the appeal is filed under Section 96 or 100 of the Code against the decree. Such was not the case here." 19. Thus it is evident that the contentions sought to be raised by the counsel for the respondents on the merits of the matter cannot be decided in this appeal. On the basis of the facts of this case and the law laid down by the Hon’ble Supreme Court and this Court, I find that the impugned judgment and order passed by the appellate Court in remanding the matter to the trial Court was not justified and that therefore, it deserves to be set aside. 20. Accordingly, the appeal is allowed. 20. Accordingly, the appeal is allowed. The impugned judgment and order of the appellate Court is set aside and the matter is sent back to the appellate Court to be decided on merits, on the basis of the material on record, by granting opportunity of hearing to both parties. There shall be no order as to costs.