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2025 DIGILAW 281 (MP)

Satpal (Satyapal) Singh v. Vidha Bai

2025-04-17

ASHISH SHROTI

body2025
ORDER 1. The appellants/plaintiffs have filed this miscellaneous appeal under Order 43 tule 1(u) of Code of Civil Procedure, challenging the judgment dated 23.3.2019 passed by 4th Additional District Judge, Shivpuri in Civil Appeal No.39-A/2015 and Civil Appeal No.40/2015, whereby learned appellate Court after setting aside the judgment and decree passed by the trial Court has remanded the matter after framing four additional issues. 2. The appellants/plaintiffs filed a suit for declaration and permanent injunction inter-alia on the ground that they have purchased suit property from defendants No.1 to 3 and one Pratap Singh and Santosh vide registered sale-deed dated 27.6.2003 and had obtained the possession thereof. On the basis of aforesaid sale, their names were mutated in the revenue record. It is their case that defendants No.1 and 2 with malafide intention sold the suit property to defendant No.4 vide sale-deed dated 16.10.2009 and further the defendant No.4 sold the same to defendants No.6 to 8 vide sale-deed dated 4.1.2011 during the pendency of the suit. The plaintiffs, therefore, sought a declaration that sale-deed executed by defendants No.1 and 2 is null & void and that they are the owner in the possession of the suit property pursuant to the sale-deed dated 27.6.2003. The plaintiffs also sought a decree of permanent injunction. 3. The defendant No.1 and 2 filed a common written statement denying the plaint averments. It is their case that they are the joint owner of the suit property along with defendant No.3 and Santosh. It is their case that even though they were major on the date of execution of the sale-deed dated 27.6.2003, they were shown as minor in the sale-deed and the sale-deed was executed on their behalf by defendant No.3, who is their mother. They submit that since they had share in the suit property, the mother could not have sold their share without their consent. The defendant No.1 and 2 also filed a counter claim seeking a declaration that they are the co-owner of the suit property and that the sale-deed dated 27.6.2003 is null & void to the extent of their share in the property. 4. The defendants No.3, 4, 6, 7 & 8 also filed their separate written statement supporting the case of defendants No.1 & 2. 5. 4. The defendants No.3, 4, 6, 7 & 8 also filed their separate written statement supporting the case of defendants No.1 & 2. 5. The learned Trial Court after framing necessary issues and taking evidence of both the sides, decreed the suit while dismissed the counter claim vide judgment and decree dated 6.12.2014. The plaintiffs were declared to be the owner in possession of the suit property and the sale-deed dated 8.7.2010 executed by defendants No.1 & 2 was declared as null & void. Further, the saledeed executed by defendant no.4 in favour of defendants No.6 & 7 during the pendency of the suit was also declared as null & void. 6. Being aggrieved by the judgment and decree passed by the trial Court, the defendant No.1, 2, 6 & 7 filed an appeal, whereas defendant No.4 filed a separate appeal. The defendant No.1, 2, 6 & 7 filed an application under Order 14 rule 2, 3, 5 of CPC and another application under Order 41 rule 27 of CPC before the Appellate Court. The learned Appellate Court, vide impugned judgment, has allowed both the applications and has remitted the matter to the trial Court for fresh decision after framing four additional issues. Against this common judgment passed by the Appellate Court, the present miscellaneous appeal has been filed by the plaintiffs. 7. The learned Appellate Court, while remanding the matter to trial Court, has framed following four additional issues : (i) Whether the defendants No.1 and 2 and Santosh were minor on the date of execution of sale-deed dated 27.6.2003 ? (ii) Whether the sale-deed dated 27.6.2003 has been executed by defendant No.3 on behalf of defendants No.1 and 2 and Santosh during their minority ? (iii) Whether the plaintiffs obtained the possession of suit land after the execution of sale-deed dated 27.6.2003 ? (iv) Whether the suit filed by the plaintiffs without the relief of possession was maintainable ? 8. Attacking the judgment passed by the Appellate Court, learned counsel for the appellants submitted that there is a specific averments made by defendants in the counter claim that they were major at the time of execution of the sale-deed. This has been denied by the plaintiffs in the written statement filed by them to the counter-claim. 8. Attacking the judgment passed by the Appellate Court, learned counsel for the appellants submitted that there is a specific averments made by defendants in the counter claim that they were major at the time of execution of the sale-deed. This has been denied by the plaintiffs in the written statement filed by them to the counter-claim. It is his submission that even though no specific issue was framed by trial Court, both the parties have led evidence on this issue. In fact, he submits that defendant - Vidhyabai admitted in her cross-examination that they were minor on the date of death of their father. Referring to paragraphs 23 & 25 of the judgment passed by learned trial Court, learned counsel for the appellant submits that there is a specific finding recorded by the trial Court that defendant No.1 & 2 were minor on the date of execution of the sale-deed. 9. The learned counsel for appellant further submitted that in para - 27, learned trial Court has recorded the finding that defendant No.3 was competent to execute the sale-deed on behalf of her minor children. He further submits that plaintiffs have been found to be in possession of the suit property. Thus, it is the submission of the appellants' counsel that even if no specific issue is made with regard to the minority/majority of defendants No.1 & 2 and the possession of the plaintiffs, since the parties have led evidence in this regard and the findings have been recorded by the trial Court, the non-framing of specific issue would not be fatal and the remand on this ground is not required. Learned counsel for the appellants further submitted that document filed along with application under Order 41 rule 27 of CPC was a partition deed executed on 12.5.2010 that is after filing of the suit, therefore, the same was not at all material and, therefore, the remand on this ground also is not sustainable. 10. On the other hand, learned counsel for the respondent supported the impugned judgment and submitted that in absence of specific issue framed, the judgment and decree passed by learned trial Court has vitiated. 10. On the other hand, learned counsel for the respondent supported the impugned judgment and submitted that in absence of specific issue framed, the judgment and decree passed by learned trial Court has vitiated. It is his submission that learned Appellate Court is justified in allowing the application under Order 41 rule 2, 3, 5 of CPC and the application under Order 41 rule 27 of CPC and remanding the matter to the trial Court for fresh decision. 11. Considered the argument of both the sides and perused the record. 12. Before discussing the facts of the case, it is profitable to refer here the judgment of apex Court in the case of Baini Prasad v. Durga Devi reported in (2023)6 SCC 708 , wherein in paragraph 17 & 18, the apex Court has held as under : "17. Now, what remains to be considered is whether the appellant herein/defendant has pleaded and proved his plea of estoppel. The appellants would contend that non- framing of the question of estoppel as an issue is not fatal in the facts and circumstances as also in view of the evidence available on record, in the case on hand. To buttress the contention, the appellants rely on the decision of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao. The relevant recital in the paragraph 5 of the said decision reads thus:- “5. …No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this 4 AIR 1963 SC 884 narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.” The position of law revealed from the aforeextracted recital from the said decision cannot be disputed. In fact, for the very same reason despite the non-framing of the issue of estoppel we are inclined to consider the contentions founded on the principle of estoppel. In fact, for the very same reason despite the non-framing of the issue of estoppel we are inclined to consider the contentions founded on the principle of estoppel. We may hasten to add that indubitably the position is that to invoke the concept of estoppel the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes representation from the plaintiff. Before delving into the said question it is only appropriate to refer to the enunciation of the settled position in respect of the concept of estoppel. 18. The position of law revealed from the afore-extracted recital from the said decision cannot be disputed. In fact, for the very same reason despite the non-framing of the issue of estoppel we are inclined to consider the contentions founded on the principle of estoppel. We may hasten to add that indubitably the position is that to invoke the concept of estoppel the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes representation from the plaintiff. Before delving into the said question it is only appropriate to refer to the enunciation of the settled position in respect of the concept of estoppel." 13. Recently, the issue has been dealt with by apex Court in the case of R. Nagaraj (Dead) through Lrs. and another v. Rajmani and others, reported in 2025 SCC Online SC 762, wherein the apex Court in para 21 held as under: "21. We have in earlier paragraph discussed the object of framing the issues. We also held that there could be several points directly or indirectly connected with the main issue that has been framed. In such cases, when the larger issue that has been framed is wide enough to cover different points of disputes within it, there is no necessity to frame a specific issue on that aspect. Further, when the parties go to trial with the knowledge that a particular point is at lis, had full opportunity to let in evidence, they cannot later turn back to say that a specific issue was not framed. All that is required under law, is for the Court to render a finding on the particular fact or law in dispute, on the facts of the case. All that is required under law, is for the Court to render a finding on the particular fact or law in dispute, on the facts of the case. However, we make it clear that such evidence, in the absence of pleadings, cannot permit either of the parties to make out a new case. It is pertinent to mention here that the Courts are vested with powers to go into the question of law, touching upon either the limitation or the jurisdiction, even if no plea is raised and not in cases, where facts have to be pleaded and evidence has to be let in. The Civil Procedure Code and the law of limitation, being procedural laws, meant to assist the Courts in the process of rendering justice, cannot curtail the power of the Courts to render justice. Procedural laws after all are handmaid of justice. What is to be seen is whether any irregularity arising from a failure to follow procedure has caused serious prejudice to the parties. It is not to be forgotten that the process of adjudication is to discern the truth." 14. From the aforesaid enunciation of law by the apex Court, if the larger issue framed by trial Court is wide enough to cover different points of disputes within it, there is no necessity to frame a specific issue on that aspect. Further, if the parties went to trial fully knowing the rival case and lead evidence in support of their contentions and in rebuttal of contention of the other side, the absence of specific issue was not fatal to the case. In other words, non-framing of specific issue would not vitiate the proceedings in such a case. 15. In the facts of the present case, it is specific case of the defendants in the counter claim that they were major on the date of execution of the sale-deed by their mother in favour of plaintiffs. This has been denied by the plaintiffs in their written statement to the counter claim. The learned trial Court framed issue with regard to legality of sale deed, dated 27.6.2003, by defendant No.3 in favour of plaintiff. Another issue framed by trial Court is as to whether the plaintiff is owner in possession of suit property pursuant to said sale deed, dated 27.6.2003. The learned trial Court framed issue with regard to legality of sale deed, dated 27.6.2003, by defendant No.3 in favour of plaintiff. Another issue framed by trial Court is as to whether the plaintiff is owner in possession of suit property pursuant to said sale deed, dated 27.6.2003. Further, issue No.5 framed by learned trial Court more specifically dealt with issue of minority of defendant No.1 & 2. Thus, the issue No.1 & 2 covers the issue of minority/majority of defendant No.1 & 2 and issue No.5 is more specific on the said issue. The parties have led evidence in support of their respective claims and based upon the same, the Trial Court has recorded the finding that defendant no.1 & 2 were minor on the date of execution of the sale deed. The plaintiffs have been held to be in possession of the suit property. The learned trial Court recorded a specific finding that defendant No.1 & 2 have failed to prove that they were major on the date of filing of the suit. Therefore, even if specific issue with regard to the age of defendant No.1 & 2 and regarding the possession of the plaintiff over the suit property is not framed, the same would be inconsequential. The remand of the matter on this ground by learned Appellate Court is, therefore, not justified. Infact, remand on this ground would amount to granting opportunity to defendant No.1 & 2 would amount to filling up the lacuna. 16. As far as the application under Order 41 rule 27 of CPC is concerned, based upon the sale-deed executed by defendant No.1 & 2 in favour of defendant No.4, the property was partitioned in the revenue proceedings and partition deed was executed on 12.5.2010. The defendants sought to produce this additional evidence on record which has been accepted by learned Appellate Court. Looking to the specific dispute between the parties with regard to legality and validity of the sale-deed dated 27.6.2003, it cannot be said that the partition deed executed on 12.5.2010 is relevant for decision of the actual dispute between the parties. The learned counsel for the respondents tried to emphasize that vide partition deed dated 12.5.2010, the defendants would be able to prove that they were major on the date of execution of the sale-deed dated 27.6.2003. The learned counsel for the respondents tried to emphasize that vide partition deed dated 12.5.2010, the defendants would be able to prove that they were major on the date of execution of the sale-deed dated 27.6.2003. However, the submission is not acceptable, inasmuch as they were required to prove their age before the trial Court by leading the cogent evidence and their age cannot be established on the basis of subsequent partition deed. Thus, the order of learned Appellate Court allowing the application under Order 41 rule 27 of CPC is not found to be sustainable on this ground also. 17. It is settled law that the Appellate Court is required to decide the appeal on merits on the basis of evidence already led by the parties before the trial Court. A remand is warranted only when a re-trial is felt necessary. Merely because any party has failed to establish his case before the trial Court, it cannot be allowed to lead further evidence by resorting to the procedure of remand. Thus, reasons assigned by learned Appellate Court for remanding the matter are not found to be sustainable in law. Accordingly, the judgment dated 23.3.2019 passed by First Appellate Court is set aside. The matter is remitted to the First Appellate Court for deciding the appeal on its merit based upon the evidence already led by the parties. 18. The parties are directed to appear before the Appellate Court along with certified copy of this order on 13.5.2025. 19. With aforesaid observations, this appeal is allowed and disposed off.