Bombay High Court

Smt. Leela Wd/O Purushottam ... vs Smt. Mandabai Wd/O Bapuraoji ... on 17 January, 2018

Bench: Manish Pitale

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR



                  Appeal Against Order No.6 of 2017
                                  ...




1. Smt.Leela wd/o Purushottam
   Kshirsagar, Aged about 64 years,
   Occupation: Housewife,
   R/o Gajanan Society, Hanuman
   Mandir, Dattawadi, Amravati Road,
   Post- Dattawadi, Nagpur.

2. Padmakar s/o Purushottam
   Kshirsagar, Aged about 49 years,
   Occ: Service, R/o 3rd Floor,
   Swapnil Apartment, Near
   Chavan Traders, Dharampeth
   Extension, Shivaji Nagar, Nagpur.

3. Satish s/o Purushottam Kshsirsagar,
   Aged about 35 years,
   Occ: Service, R/o Hanuman Mandir,
   Dattawadi, Nagpur.

4. Sau. Sushma w/o Ramesh Hiwarkar,
   Aged about 35 years,
   Occ: Housewife, R/o Hanuman Mandir,
   Godhani Road, Gitai Nagar, Nagpur.                 ..    APPELLANTS
                                                            (Org.    Defts/
                                                            Respondents
                                                            1 to 4.)


                               .. Versus ..

1. Smt. Mandabai wd/o Bapuraoji
   Kshirsagar, Aged about 62 years,
   Occ- Housewife, R/o Waigaon (H),



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    Tahsil Samudrapur, District Wardha.

2. Sau. Sandhya w/o Moreshwar
   Junghare, Aged about 42 years,
   Occ: Housewife, R/o B-202,
   Krishna Palace, Thakur Complex,
   Kandivli (East), Mumbai.

3. Sau. Rekha w/o Suresh Kalbande,
   Aged about 40 years, Occ-
   Housewife, R/o Dattatraya Nagar,
   Near Mahakalkar Mangal
   Karyalaya, Nagpur.

4. Ravi s/o Bapuraoji Kshirsagar,
   Aged about 38 years,
   Occ- Private Job, R/o C/o
   Sampatrao Danav, Plot No.40,
   Old Subhedar Extension, Nagpur.

5. Sau. Sunita w/o Rajesh Bhelkar,
   Aged about 35 years,
   Occ: Housewife, R/o Somwari
   Quarter,Nagpur.

6. Rajesh s/o Bapuraoji Kshirsagar,
   Aged about 28 years,
   Occupation: Service,
   R/o 26-A, 702, M.H.A.D.A.Colony,
   Kandivli, Saki Naka Police Station,
   Mumbai 400 072.

7. Vijay s/o Sampatrao Khedkar,
   Aged about 50 years,
   Occ: Private Job, R/o Ram Nagar,
   Telangkhedi, Nagpur.

    (L.Rs. Of Respondent No.7)

(a) Harish s/o Vijay Khedkar,
    Aged about 28 years,

(b) Mayur s/o Vijay Khedkar,
    Aged about 24 years,

    Both R/o Near Mata Mandir, Ram



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    Nagar, Telangkhedi, Nagpur.

8. Sau. Namita w/o Ganeshrao Bhovre,
   Aged about 44 years, Occ:
   Housewife, R/o New Railway Colony,
   Near Church, Sindhi (Meghe), Wardha.

9. Sau. Lata w/o Shrawan Mote,
   Aged about 45 years, Occ: Housewife,
   R/o Ram Nagar, Telangkhedi, Nagpur.

10. Devanand s/o Sampatrao Khedkar,
    Aged about 40 years, Occ:
    Business, R/o Ram Nagar,
    Telangkhedi, Nagpur.

11. Dinesh s/o Premraj Mokarkar,
    Aged about 38 years, Occ:
    Private Job, R/o Plot No.20,
    Vaishnav Mata Nagar,
    Khadgaon Road, Amravati Road,
    Dattawadi, Nagpur.

12. Sau. Jyoti w/o Ashokrao Kale,
    Aged about 35 years, Occ:
    Housewife, R/o Behind Shyam
    Beer Bar, Besa Road,
    Manewada Ring Road, Nagpur.

13. Kailash s/o Premraj Mokarkar,
    Aged About 32 years,
    Occ: Private Job, R/o Plot No.20,
    Vaishnav Mata Nagar, Khadgaon
    Road, Amravati Road,
    Dattawadi Nagpur.                 ..            RESPONDENTS
                                                    (Nos. 1 to 6 Org.
                                                    Plffs and Nos. 7
                                                    to 13 Org. Defts)


Mr. Rohit Joshi, Advocate for Appellants.
Mr. N.B. Bargat, Advocate for Respondent Nos.1,3 & 4.
Mr. A.S.Moon, Advocate for Respondent Nos. 7(A) & (B) & 8 to
13.

                               ....



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CORAM                            : MANISH PITALE, J.

DATE OF RESERVING THE JUDGMENT : JANUARY 09, 2018 DATE OF PRONOUNCING THE JUDGMENT : JANUARY 17, 2018

ORAL 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

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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. But, Bapurao died during the pendency of the said

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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 In the affirmative property left by Late Mahadeo @ Rodba Kshirsagar?

2. Do plaintiff prove that being L.Rs. of In the negative late Bapuraoji Kshirsagar they are having their shares in the suit property?

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3. Whether plaintiffs are entitled for the In the negative.

relief of partition and separate possession? If Yes, what should be their shares?

4. In view of abatement in In the affirmative.

R.C.S.No.69/08(43/2002) whether plaintiffs are entitled to claim the relief as sought?

5. Whether the suit claim is within In the affirmative. limitation?

6. Whether plaintiffs are entitled for the In the negative. relief of declaration as prayed?

7. Whether plaintiffs are entitled for the In the negative. relief of injunction as prayed?

8. Whether plaintiffs are entitled for the In the negative. relief, inquiry about mesne profits as per Order 20 Rule 12 of C.P.C.?

9. Whether suit is vaxacious to the In the negative. knowledge of plaintiffs? If yes, whether defendants are entitled to claim compensatory costs as prayed?

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

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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

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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. 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

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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.

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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

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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. 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.

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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

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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. 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

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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 non-

framing 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

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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

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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.

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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

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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. 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