Bombay High Court
Jaikranti Sahebrao Jadhav vs Babarao Vishwanath Bhise And Ors on 4 October, 2025
2025:BHC-AUG:27642
AO 170 12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 170 OF 2012
Jaikranti d/o Sahebrao Jadhav,
Age 26 years, Occ. Household,
R/o. Renkapur, Tq. Basmat,
Dist. Hingole. ... Appellant
(Orig. Deft. No. 3)
VERSUS
1) Babarao s/o Vishwanath Bhise,
Age 24 years, Occ. Education,
R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
2) Sunil s/o Vishwanath Bhise,
Age 16 years, Occ. Education,
Under Guardianship of natural
mother- Sheshabai w/o Vishwanath
Bhise, R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
3) Sangeeta w/o Gautam Thorat,
Age 34 years, Occ. Household,
R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
4) Shalubai w/o Sanjay Bagate,
Age 30 years, Occ. Household,
R/o. Limbgaon, Tq. & Dist. Nanded.
5) Mangal d/o Vishwanath Bhise,
Age 19 years, Occ. Education,
R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
6) Anita d/o Vishwanath Bhise,
Age 17 years, Occ. Education,
Under Guardianship of natural
mother- Sheshabai w/o Vishwanath
Bhise, R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
1/8
AO 170 12.odt
7) Sheshabai w/o Vishwanath Bhise,
Age 49 years, Occ. Household,
R/o. Renkapur, Tq. Basmat,
Dist. Hingoli. ... Orig. Plff. No. 1 to 7
8) Vishwanath s/o Tolaji @ Tolba Bhise,
Age 54 years, Occ. Agriculture,
R/o. Renkapur, Tq. Basmat,
Dist. Hingoli.
9) Marotrao s/o Shankarrao Pawade,
Age 64 years, Occ. Agriculture,
R/o. Puvni (Pawade) Tq. & Dist. ... Orig. Deft. Nos. 1& 2
Nanded. ... Respondents.
...
Advocate for Appellant : Mr. A.S. Jadhav
Advocate for Respondent nos. 1 to 7 : Mr. G.K. Naik-Thigle
...
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 29.09.2025
PRONOUNCED ON : 04.10.2025
JUDGMENT :
Heard both the sides.
2. The appeal is heard finally on substantial questions of law framed
vide order dated 15.04.2013. The appellant/original defendant no. 3 is
questioning judgment and order dated 27.09.2012 remanding the matter to
deal with following issues :
"Issue no. 1 - Do defendant nos.2 and 3 prove that
defendant no. 1 sold the suit properties to them for legal
necessities ?
Issue no. 2 - Do defendant nos. 2 and 3 prove that suit for
partition is not maintainable as the plaintiffs have not
brought into common hotchpot all joint family properties in
suit for partition and therefore, suit is not maintainable ?"
AO 170 12.odt
3. The respondent nos.1 to 7 are the plaintiffs, who had filed Regular
Civil Suit No. 5/2008 for partition, possession and declaration. They are
children of respondent no. 1 Vishwanath Tolaji Bhise, who were denied
partition and allotment of their share in the undivided joint family
properties. The alienations of the joint family property made by him on
22.04.1992 in favour of defendant no. 2 and further alienation in favour of
present appellant on 11.04.2001 are said to be without there being any legal
necessity. It is contended that the purchasers are not bona fide purchasers.
4. The appellant and the respondent no.9 ( defendant no. 2) contested
the suit by filing written statement. They justified the alienations on the
ground of legal necessity and they are said to be bona fide purchasers. The
suit was dismissed vide judgment and decree dated 10.03.2010. Being
aggrieved, present appellant preferred Regular Civil Appeal No. 17/2010,
which resulted in order of remand under Order XLI Rule 23A of the Code of
Civil Procedure.
5. The learned counsel for the appellant submits that the Lower
Appellate Court has committed error of jurisdiction in remanding the matter
when already the findings were recorded by the Trial Court on the issues
which are sought to be decided. There was sufficient material before the
Lower Appellate Court to decide the matter on merits invoking powers
under Order XLI Rule 33. It is submitted that it is perversity to remand the
matter for deciding it fresh instead of referring only those issues. It is
submitted that it is not permissible to relegate the matter on the ground of
inadequacy of the evidence when the parties had opportunity to lead the
evidence.
6. Per contra, the learned counsel for the respondents supports the
impugned judgment and order. He would vehemently submit that the
appellant being purchaser ought to have adduced evidence by stepping into
witness box to buttress the legal necessity and therefore the need of remand
AO 170 12.odt
was felt. It is further submitted that the specific issues were not settled by
the Trial Court and the existing material was found to be insufficient.
Hence, the Appellate Court has rightly remanded the matter. It is further
submitted that very purport of framing specific issues would be to
channelize the enquiry for deciding the controversy involved in the matter,
which is sought to be achieved by the impugned order. It is further
submitted that an equitable order is passed by extending opportunity to both
the parties to lead evidence, which cannot be faulted.
7. I have considered the rival submissions of the parties. I have gone
through relevant record and proceedings which is before me. The appellant
and the respondent no. 9 contested the suit by filing written statement. The
appellant examined four witnesses and respondent no. 9 examined three
witnesses. Respondent no. 8 who is defendant no. 1 neither filed any
written statement nor adduced any evidence.
8. The written statement filed by the appellant as well as respondent
no. 9 show that a specific defence was raised that partial suit for eviction
was not maintainable and three distinct joint family properties were not
brought in common hotchpot namely house at Renukapur, gat No. 92 and
Gat No. 46. Both of them specifically contended that they are bona fide
purchasers and the alienations were valid. In view of those pleadings,
following issues were framed:
eqn~ns
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vkgs \
2- Izkfroknh ua- 2 o 3 us iqjkO;kus fl/n dsys dk dh rs oknfeGdrhps usdfu;e
[kjsnhnkj vkgsr \
3- oknh okV.kh feGfo.;kl ik= vkgs dk \
4- oknh dk;eLo#ih eukbZ gqdwe feGfo.;kl ik= vkgs \
9. The appellant and respondent no. 9 also examined witnesses to
AO 170 12.odt
justify the alienation and to contest the suit on its maintainability. The Trial
Court recorded findings in para No. 24, that all properties are not brought in
common hotchpot. Further reasons are assigned in paragraph no. 25 to 27
that alienations were for the legal necessity, the recitals of which are
incorporated in the sale-deeds. Thereafter, it was further held that the
alienations are valid and the issue of limitation was partly held in favour of
the few of the plaintiffs and partly against the remaining plaintiff. Though
specific issue regarding the alienation was for legal necessity and non
joinder of all the properties in common hotchpot were not framed, reasons
for issue nos. 2 and 3 were covering the aspect of the matter. The evidence
brought on record in that regard has been appreciated and the findings are
recorded. The learned counsel for the appellant Ms. Jadhav is right in
contending that it is not that the Trial Court did not deal with the aspect of
the matter.
10. It is not the case that the parties have any grievance regarding
opportunity of hearing. It is further not a case that the evidence or part of
evidence which is vital is discovered after decision of the Trial Court. There
is nothing on record to show that the respondents-plaintiffs were taken by
surprise of any plea or circumstance pressed into service by the appellant.
Having understood each others case when the parties would participate in a
proceedings, it is immaterial as to whether a specific issue is framed or not.
No steps were taken by either of the parties for recasting of the issues. A
purport of framing of issue is to channelize an enquiry. The Lower Appellate
Court committed perversity in observing in paragraph no. 13 that neither
plaintiffs nor the defendants gave any evidence on those points. In such a
situation, it cannot be countenanced that the entire suit is required to be
relegated to the Trial Court.
11. Before the Lower Appellate Court adequate material was available.
There were necessary pleadings and the evidence on record. It should have
invoked power under Order XLI Rule 33 of CPC for examining the issues
AO 170 12.odt
pertaining to legal necessity and bringing on record other joint family
properties. It failed to exercise the jurisdiction vested in it. There is nothing
on record to suggest that it was not possible to decide the controversy. The
impugned order does not reflect that the pleadings of the parties, the
evidence on record especially sale-deeds and the oral evidence are
considered by the Lower Appellate Court. The findings recorded by the Trial
Court have not been revisited by the Lower Appellate Court. I find substance
in the submissions of the learned counsel for the appellant that the
Appellate Court committed error of jurisdiction.
12. The Lower Appellate Court framed and referred two issues. It has
power under Order XLI Rule 25 of CPC to refer only those specific issues to
the Trial Court and after return of the evidence with findings it would have
dealt with the appeal. It is incomprehensible as to why such course is not
adopted. There is no propriety to send the case for retrial. I find substance
in the submission of the learned counsel for the appellant that the impugned
order is unsustainable.
13. Reliance is placed by the learned counsel for the appellant in
judgment of H. Siddiqui (Dead) by L.Rs. Vs. A. Ramalingam; (2011) 4
Supreme Court Cases 240. I have gone through para No. 21 of the
judgment. It is about obligation of the appellate Court, which is extracted
herein below:
"Order 41 Rule 31 of CPC
21. The said provisions provide guidelines for the
appellate court as to how the court has to proceed and
decide the case. The provisions should be read in such a
way as to require that the various particulars mentioned
therein should be taken into consideration. Thus, it must
be evident from the judgment of the appellate court that
the court has properly appreciated the facts/evidence,
applied its mind and decided the case considering the
material on record. It would amount to substantial
compliance with the said provisions if the appellate court's
AO 170 12.odt
judgment is based on the independent assessment of the
relevant evidence on all important aspects of the matter
and the findings of the appellate court are well founded
and quite convincing. It is mandatory for the appellate
court to independently assess the evidence of the parties
and consider the relevant points which arise for
adjudication and the bearing of the evidence on those
points. Being the final court of fact, the first appellate court
must not record mere general expression of concurrence
with the trial court judgment rather it must give reasons
for its decision on each point independently to that of the
trial court. Thus, the entire evidence must be considered
and discussed in detail. Such exercise should be done after
formulating the points for consideration in terms of the
said provisions and the court must proceed in adherence to
the requirements of the said statutory provisions. (Vide
Sukhpal Singh v. Kalyan Singh, Girijanandini Devi v.
Bijendra Narain Choudhary, G. Amalorpavam v. R.C.
Diocese of Madurai, Shiv Kumar Sharma v. Santosh
Kumari10 and Gannmani Anasuya v. Parvatini Amarendra
Chowdhary.)"
14. It is rightly contended that the Appellate Court should have decided
the appeal on merits instead of remanding the matter to the Trial Court.
Insufficiency of the evidence cannot be a ground to relegate the parties
when none of the parties have grievance of not extending opportunity of
hearing or adducing evidence.
15. The learned counsel for the respondents has placed reliance on Fiza
Developers and Inter-Trade Private Limited Vs. AMCI (India) Private Limited
and another; (2009) 17 Supreme Court Cases 796. I have gone through
paragraph NO. 10 to 14. There is no quarrel for the proposition laid down
by the Hon'ble Apex Court. The facts are distinguishable. I have already
observed in a case at hand that there was adequate material before the Trial
Court in the form of pleadings and the evidence on the issues in question
and remand is unwarranted. This judgment will not enure to the benefit of
the respondents.
AO 170 12.odt
16. It appears from record that the impugned order was passed on
27.09.2012. In pursuance of the impugned order, the parties did not appear
before the Trial Court and suit was dismissed for default vide order dated
04.12.2012. It was sought to be restored by filing application, which was
barred by 562 days. A separate Civil M.A. No. 66/2014 was preferred for
condonation of delay. It was rejected on 19.01.2018. Being aggrieved Civil
Misc. Appeal No. 15/2024 is preferred before the Adhoc District Judge,
which is pending and posted on 16.10.2025. The orders passed after the
impugned order are inconsequential. They are vitiated as order of remand is
held to be unsustainable.
17. I am inclined to answer the substantial questions of law in favour of
the appellant. I, therefore, pass following order :
ORDER
(I) Appeal from order is allowed.
(II) Impugned judgment and order dated 27.09.2012 is quashed and set
aside. Regular Civil Appeal No. 17/2010 is restored to the lower Appellate
Court for deciding it on its own merits on the basis of material available on
record.
(III) Needless to mention that the proceedings and the orders of Civil M.A.
No. 66/2014, order dated 19.01.2018 and Civil M.A. No. 15/2024 stand
vitiated.
( SHAILESH P. BRAHME, J.)
mkd/-
