Bombay High Court
Deorao S/O Chindhuji Belkhode vs Pandurang S/O Chindhuji Belkhode ... on 15 September, 2021
Bench: S. M. Modak
ao.11.21.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.11 OF 2021
Appellant : Deorao S/o Chindhuji Belkhode,
(Ori. Plaintiff) Aged about 57 years., Occ. Agriculturist,
On R.A. R/o Makardhokda, Tah. Umred, Distt. Nagpur
-- Versus --
Respondents : 1] Pandurang S/o Chindhuji Belkhode,
(Ori. Def. No.2) Aged about 51 years, Occ. Service,
On R.A. R/o Chichghare Layout, Narayan City, Umred,
Tah. Umred, Distt. Nagpur.
(Ori. Def. No.3) 2] Dilip S/o Chindhuji Belkhode, (Deceased)
(Ori. Def. No.3)
2[i] Smt. Ranjana Dilip Belkhode,
Aged about 38 years, Occ. Housewife.
2[ii] Prajwal S/o Dilip Belkhode,
Aged about 19 years, Occ. Education,
2[iii] Ku. Manasi D/o Dilip Belkhode,
Aged about 19 years, Occ. Education,
All (2[i] to 2[iii]) residents of
Bholebaba Nagar, Near Ambedkar School,
Hanuman Nagar, Nagpur.
(Ori. Def. No.1) 3] Shankar S/o Chindhuji Belkhode,
Aged about 59 years, Occ. Agriculturist,
R/o Makardhokda, Tah. Umred, Distt. Nagpur.
(Ori. Def. No.4) 4] Sau. Vimal Manohar Bazare,
Aged about 44 years, Occ. Housewife.
R/o Plot No.354, Bholebaba Nagar,
Hanuman Nagar, Nagpur.
WITH
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ao.11.21.jud 2
SECOND APPEAL NO.143 OF 2021
Appellant : Deorao S/o Chindhuji Belkhode,
(Ori. Plaintiff) Aged about 57 years., Occ. Agriculturist,
On R.A. R/o Makardhokda, Tah. Umred, Distt. Nagpur
(Ori. Plaintiff) (On RA)
-- Versus --
Respondents : 1] Pandurang S/o Chindhuji Belkhode,
(Ori. Def. No.2) Aged about 51 years, Occ. Service,
On R.A. R/o SECOND Chichghare Layout,
Narayan City, Umred, Tah. Umred,
Distt. Nagpur.
(Ori. Def. No.3) 2] Dilip S/o Chindhuji Belkhode (Deceased).
2[i] Smt. Ranjana Dilip Belkhode,
Aged about 38 years, Occ. Housewife.
2[ii] Prajwal S/o Dilip Belkhode,
Aged about 19 years, Occ. Education,
2[iii] Ku. Manasi d/o Dilip Belkhode,
Aged about 19 years, Occ. Education,
All (2[i] to 2[iii]) residents of Bholebaba Nagar,
Near Ambedkar School, Hanuman Nagar,
Nagpur.
(Ori. Def. No.1) 3] Shankar S/o Chindhuji Belkhode,
Aged about 59 years, Occ. Agriculturist,
R/o Makardhokda, Tah. Umred, Distt. Nagpur.
(Ori. Def. No.1)
(Ori. Def. No.4) 4] Sau. Vimal Manohar Bazare,
Aged about 44 years, Occ. Housewife.
R/o Plot No.354, Bholebaba Nagar,
Hanuman Nagar, Nagpur.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Mrs. V.P. Thakre, Advocate for the Appellant.
Shri A.P. Thakre, Advocate for the Respondents.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
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ao.11.21.jud 3
CORAM : S.M. MODAK, J.
DATE : 15th SEPTEMBER, 2021.
J U D G M E N T :-
This Court while issuing notice in the second appeal has
framed the following substantial questions of law:
i) Whether the First Appellate Court was right in
appreciating the evidence of defendant No.2 in respect
of Gat No.42 by holding it as a self-acquired property of
defendant No.2?
ii) Whether the First Appellate Court was right in not
remanding the matter in respect of Gat No.42?:
02] In this second appeal, the plaintiff has challenged the
decision given by the first appellate Court so far as the nature of
Gat No.42 is concerned. It is one of the suit land. The plaintiff
considered it as a joint family property, whereas defendant No.2-
Pandurang considered it as his self-acquired property acquired by
availing a loan from the society. Whereas, the first appellate Court
considered it as self acquired property.
03] Whereas, the plaintiff has preferred this 'appeal from an
order' against the direction given in the impugned judgment dated
11/02/2021 passed by the first appellate Court. By the said
judgment, the suit was remanded and the trial Court was directed to
conduct a fresh enquiry. Defendant No.2-Pandurang was permitted
to adduce evidence on the basis of the documents filed before the
first appellate Court as per Exh.27. While passing the order of
remand, the first appellate Court excluded Gat No.42 from the scope
of enquiry to be conducted by the trial Court. In this appeal from an
order, the Court has issued the notice to the respondents.
04] All the respondents have appeared in both the
proceedings through learned Advocate Shri A.P. Thakre. Considering
the scope of enquiry of both these proceedings, they are taken up
for final hearing by consent. In view of that, the second appeal and
the appeal against an order are admitted and taken up for final
hearing. They have waived the notice too.
05] The following points arise for my determination :
S.N. Points Findings
(i) Whether the first appellate Court In the negative
(was not right)
was right in appreciating the
evidence of defendant No.2 in
respect of Gat No.42 by holding it
as a self acquired property of
defendant No.2?
(ii) Whether the first appellate Court In the negative
(was not right)
was right in not remanding the
matter in respect of Gat No.42?
(iii) Whether the first appellate Court In the
affirmative
was right in remanding the matter
for fresh consideration to the trial
Court?
(iv) What order? As per final
order
SUIT
06] The plaintiff has filed the suit for partition. Defendant
Nos.1 to 3 are his brothers, whereas defendant No.4 is his married
sister. He has sought for partition in respect of four lands described
in the schedule. Both the parties have adduced evidence before the
trial Court. The plaintiff has examined himself and on behalf of
defendant Nos.2 & 3, defendant-Pandurang entered into the witness
box. So also, they have examined one Lemon Wasudeorao Balpande
and one Maroti Domaji Waghade. Defendant No.4 also entered into
the witness box.
07] After appreciating the evidence, the trial Court came to
the conclusion that the suit properties including Gat No.42 are the
joint family properties. The trial Court refused to consider Gat No.42
as self-acquired property of defendant No.2. So also, the trial Court
has refused to accept the objection about maintainability of the suit
on the ground of partial partition.
08] Defendant No.2 and legal heirs of deceased defendant
No.3-Dilip preferred R.C.A. No.724/2016. The plaintiff, defendant
No.1 and defendant No.4 are the respondents therein.
FIRST APPEAL
09] Before the first appellate Court, defendant No.2-
Pandurang sought permission to produce certain documents. They
are as per the application at Exh.27. It consists of
(a) suit notice given by the plaintiff (there is no mention of
Gat No.42 in that suit notice and contention of defendant
No.2 is that the plaintiff was aware that the suit land is a
self-acquired property of defendant No.2)
(b) one unregistered partition-deed and
(c) one relinquishment-deed.
The first appellate Court was pleased to grant permission
to defendant No.2 to produce those documents. In paragraph 45 of
the impugned judgment, there are observations to that effect.
10] The other ground for remand is "not including one house
property in partition suit by the plaintiff". The observation to that
effect finds place in paragraphs 40 to 44. It was the contention
raised on behalf of the defendants that the house property, wherein
the plaintiff resides, ought to have been included in the partition
suit. The first appellate Court has accepted that contention.
ORDER OF REMAND
11] It is pertinent to note that it was obligatory for the
plaintiff to produce the suit notice before the trial Court. It is more
important when the defendants have pleaded that in that notice Gat
No.42 is not included. When the first appellate Court came to a
conclusion to remand the suit, it was justified on its part to permit
defendant No.2 to produce other documents as per list at Exh.27. It
is further more necessary for doing complete adjudication of dispute
between the parties. It is also important that if at all the plaintiff is
asking for partition, all the properties belonging to the joint family
ought to have been included. Though the trial Court has not
accepted the said contention (while answering Issue No.5), the first
appellate Court has accepted that contention. It is also true that if at
all, there has to be a partition through the Court, all the properties
ought to have been included.
12] So, this Court finds that the reasons given by the first
appellate Court for remanding the suit are certainly acceptable. The
order of remand is justified in view of the reasons quoted above.
This Court does not find any illegality in passing the said order.
Though, it is true that the order of remand need not be passed in a
routine course, but when there are justifying circumstances, the
appellate Court can certainly exercise the power under the
provisions of Order 41 Rule 23-A of the Code of Civil Procedure. It
empowers the first appellate Court to remand the matter, if the suit
is decided on a point other than the preliminary points. Hence, the
order of remand is sustainable.
SECOND APPEAL
13] The first appellate Court, though has remanded the suit,
has not avoided the temptation to give finding in respect of one of
the suit lands i.e. Gat No.42. This approach on the part of the first
appellate Court cannot be sustained in the eyes of law. It was not
proper on the part of the first appellate Court to express an opinion
on merits so far as Gat No.42 is concerned. In fact, when the order
of remand is to be passed, the first appellate Court is expected only
to give reasons, which support the order of remand. The first
appellate Court ought to have prevented itself from expressing an
opinion in respect of Gat No.42. In fact, the trial Court ought to
have been directed also to conduct an enquiry in respect of Gat
No.42.
14] The finding to that effect finds place in paragraphs 11
to 15. There are two versions. One is, Gat No.42 is a joint family
property as per the plaintiff, whereas, defendant No.2 pleaded that
it was acquired by him by obtaining loan from the society. The trial
Court in paragraph 14 has considered the evidence of the witness
Lemon Balpande. The trial Court concluded that Gat No.42 is not a
self-acquired property of defendant No.2, whereas the first appellate
Court, while reappreciating the evidence, has concluded that Gat
No.42 is a self-acquired property of defendant No.2. This approach
ought to have been avoided when the first appellate Court had
come to a conclusion that the matter needs to be remanded. In
view of that, the said finding cannot be sustained. It needs to be set
aside. Hence, I answer Point Nos.1 & 2 in the negative and Point
No.3 in the affirmative and proceed to pass the following order :
ORDER
(i) Second Appeal No.143/2021 is allowed.
(ii) Appeal Against Order No.11/2021 is dismissed.
(iii) The finding given by the first appellate Court in respect of
Gat No.42 that it is a self-acquired property of defendant
No.2 is set aside.
(iv) The trial Court is directed to conduct an enquiry in respect
of Gat No.42 also.
(v) Rest of the directions given in the impugned judgment are
maintained.
(vi) Both the proceedings are disposed of with no order as to
costs.
(S.M. MODAK, J.)
*sandesh
