[Cites 14, Cited by 0]
Bombay High Court
Shivaji Gopal Kurhade vs Ramchandra Gopal Kurhade And Others on 28 January, 2026
2026:BHC-AS:4170
Sumedh 18-asao-229-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 229 OF 2024
WITH
INTERIM APPLICATION NO. 6796 OF 2024
Shivaji Gopal Kurhade ]
Age: 72, Occ- Agriculturalist ]
Residing at H.No.1951, Kurhade Ali ]
Aalndi Devachi Tal-Khed Dist- Pune ]...Appellant
(Original Plaintiff)
V/s.
1. Ramchandra Gopal Kurhade ]
Age: 72, Occ- Agriculturalist ]
2. Vilas Gopal Kurhade ]
Age: 62, Occ- Agriculturalist ]
3. Yogendra Gopal Kurhade ]
Age: 56, Occ- Agriculturalist ]
4. Shankarrao Gopal Kurhade ]
Age: 52, Occ- Agriculturalist ]
5. Vimal Gopal Kurhade ]
Age: 85, Occ- Agriculturalist ]
6. Sachin Ramchandra Kurhade ]
Age: 38, Occ- Agriculturalist ]
7. Amol Ramchandra Kurhade ]
Age: 35, Occ- Agriculturalist ]
8. Vishal Vilas Kurhade ]
Age: 33, Occ- Agriculturalist ]
9. Viraj Vilas Kurhade ]
Age: 31, Occ- Agriculturalist ]
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2026.01.28
18:15:43
+0530
::: Uploaded on - 28/01/2026 ::: Downloaded on - 28/01/2026 20:46:06 :::
Sumedh 18-asao-229-2024.doc
10. Gopal Yogendra Kurhade ]
Age: 24, Occ- Agriculturalist ]
11. Chaitanya Shankarrao Kurhade ]
Age: 22, Occ- Agriculturalist ]
All R/at- House No. 808/2, ]
Laxminarayan Building, Behind ]
Santoshimata Temple Aalndi ]
Devachi Tal-Khed Dist- Pune ]...Respondents
(Original Defendants)
______________________________________
Dr. Abhinav Chandrachud i/by Adv. Samay Pawar for Appellant.
Mr. J.D. Khairnar a/w. Adv. Vikas Shivarkar for Respondent No. 1,
6 and 7.
Mr. Laxmikant N. Shrimangale a/w. Adv. Ambadas N.
Shrimangale, Adv. Vithal Shrimangale for Respondent No. 2, 3, 8 to
10.
_____________________________________________
CORAM : KAMAL KHATA, J.
RESERVED ON : 6TH JANUARY 2026.
PRONOUNCED ON : 28TH JANUARY 2026.
JUDGMENT:
1) By the present Appeal, the Appellant/Orig. Plaintiff
challenges the order dated 1st February 2024 ("impugned order"),
passed by the Ad-hoc District Judge-1, Khed- Rajgurunagar,
District-Pune ("the Appellate Court") in Regular Civil Appeal No.
19 of 2020 arising out of Special Civil Suit No. 211 of 2014 ("Suit").
By the impugned order, the Appellate Court set aside the partial
Decree for partition dated 2nd January 2020 passed by the Joint
Civil Judge, Senior Division, Khed- Rajgurunagar, Dist.-Pune ("the
Trial Court"), partly in favour of the Plaintiff and remanded the
Sumedh 18-asao-229-2024.doc
Suit to the Trial Court for fresh adjudication on re-framed issues.
2) The short but significant question that arises for
consideration in the present Appeal is whether the Ld. Appellate
Court was justified in remanding the Suit for fresh adjudication on
re-framed issues, including an additional issue of limitation,
without considering the evidence already led by the parties on
record.
BRIEF FACTS
3) The Appellant had instituted Special Civil Suit No. 211 of
2014 (originally Special Civil Suit No. 248 of 2012) seeking
partition and separate possession of ancestral and joint family
properties described in Schedules A to E, recovery of the Appellant
share in rental income from 2009 to 2012, and a decree of
permanent injunction. The Appellant claims a 1/6th share in the
joint family properties as the son of late Gopal Kurhade through
his first wife, whereas Respondent Nos. 1 to 4 are the sons of the
said deceased through Respondent No. 5, his second wife. The Suit
came to be filed upon the Appellant acquiring knowledge that
Respondent Nos. 1 to 4 were attempting to alienate the suit
properties to his exclusion.
4) The Respondents contested the Suit, inter alia, on the ground
of limitation, alleging an oral partition in 1980 during the lifetime
of the deceased, and further contended that the properties
Sumedh 18-asao-229-2024.doc
described in Schedules D and E were their self-acquired properties.
5) The Trial Court, by judgement and decree dated 2nd January
2020, partly decreed the Suit by granting the Appellant 1/6
undivided share in the properties described in Schedules 'A to C'
only. The Trial Court further directed that for the purpose of
partition by metes and bounds and for delivery of possession, the
agricultural lands described in Schedule 'C' (of the Suit) be
referred to the District Collector under Section 54 of the Code of
Civil Procedure, 1908, (CPC), and that a Court Commissioner be
appointed for the partition of the properties described in Schedules
'A' and 'B'.
6) Being aggrieved by the said Order dated 2nd January 2020,
the Appellant preferred a Regular Civil Appeal No. 19 of 2020
before the Ld. Appellate Court. The Respondents, by filing their
cross-objections, re-agitated their challenge to the partition decree
by contending that the properties were not ancestral and that the
Trial Court had failed to frame an issue in that regard. It was
further argued that since no specific issue on limitation had been
framed, the Respondents were deprived of an opportunity to lead
evidence.
7) The Appellate Court by its order dated 1st February 2024
remanded the suit back to the Trial Court after framing additional
issues including an issue on limitation, for fresh adjudication.
Sumedh 18-asao-229-2024.doc
8) It is under these circumstances that the present Appeal has
been preferred by the Original Plaintiff.
RIVAL SUBMISSIONS
9) Dr. Chandrachud, the learned counsel for the Appellant,
submits that the Appellate Court committed a serious error in
ordering a remand of the entire case under Order XLI Rule 23A of
the of the CPC. He submits that if the Appellate Court was of the
view that a fresh issue of limitation was required to be framed, the
same ought to have been decided by the Appellate Court itself, or at
the highest, the matter ought to have been remanded only for the
limited purpose of adjudication of the issue of limitation under
Order XLI Rule 25 CPC. The mere failure of the Trial Court to
frame an issue of limitation could not justify setting aside the
entire decree and directing a de novo trial.
10) The Appellant, placing reliance on Uttara Thool v. Praveel
Thool1; Kunju Kesavan v. M.M. Philip2; Sayeda Akhtar v. Abdul
Ahad3; and Nedunuri Kameswaramma v. Sampati Subba Rao 4,
contends that non-framing of a specific issue does not vitiate the
proceedings where the parties were fully conscious of the
controversy and have already led evidence thereon, and where no
prejudice is demonstrated to have been caused by such omission.
1(2014) 2 MhLJ 321
2 AIR 1964 SC 164
3 (2003) 7 SCC 52
4 AIR 1963 SC 884
Sumedh 18-asao-229-2024.doc
11) Learned Counsel further submits that the Appellate Court
failed to apply the settled principle that remand is an exception
and not the rule. Reliance is placed on Zarif Ahmad v. Mohd.
Farooq5, wherein the Supreme Court held that remand ought to be
ordered only in exceptional cases, such as where the suit is
disposed of on a preliminary issue without recording evidence on
other issues. No such circumstance existed in the present case.
12) It is also submitted that the Appellate Court overlooked the
statutory scheme under Order XLI Rule 25 of the CPC, which
empowers the appellate court to frame an additional issue and call
for findings thereon while retaining the appeal for final disposal.
Reliance is placed on Corporation of Madras v. M. Parthasarathy6.
13) Learned Counsel lastly submits that the Appellate Court
failed to consider the settled law governing limitation in partition
suits. Reliance is placed on Syed Shah Ghulam v. Syed Shah
Ahmed7, which recognizes that the cause of action in a partition
suit is perpetually recurring. Though a seemingly different view
was expressed in Krishna Pillai v. Padmanabha Pillai8, the
Appellate Court neither examined the recurring nature of the
cause of action nor reconciled the authorities before directing
remand, thereby rendering the impugned order vitiated for non-
application of mind.
5 (2015) 13 SCC 673
6 (2018) 9 SCC 445
7 (1971) 1 SCC 597
8 (2004) 12 SCC 754
Sumedh 18-asao-229-2024.doc
14) On these grounds, it is submitted that the impugned order
deserves to be set aside and the Appeal from Order be remitted to
the Appellate Court for Adjudication on merits.
15) Mr. Shrimangali, the learned counsel appearing on behalf of
the Respondents supports the impugned order. He submits that the
Suit properties mentioned in Schedules 'A to C' are ancestral
properties and that the name of the Appellant as well as the
Respondents are shown on 7/12 extract. He further submits that
the properties described in the Schedule 'D' were purchased in the
name of Defendant No.6, while those described in Schedule 'E' were
purchased in the names of Defendant No. 7 to 11
16) Learned Counsel submits that the Defendants had duly
appeared before the Trial Court and contested the Suit. He submits
that an oral partition had already taken place between the
Appellant and the Respondents in the year 1980 during the
lifetime of the deceased Gopal Kurhade. Pursuant to the said oral
partition, the Appellant was allegedly put in possession of his
separate share and has been cultivating the same since 1980. The
Respondent have also developed their respective shares after oral
partition. It is therefore contended that both sides accepted and
acted upon the oral partition.
17) On this basis, it is contended that the suit filed by the
Appellant is clearly barred by limitation, as the cause of action, if
Sumedh 18-asao-229-2024.doc
any, arose in 1980. The Respondents accordingly denied the
Appellant's claim in its entirety and have prayed for dismissal of
the suit.
18) The Respondents further contend that after filing their
Written Statements and specifically objecting to the Suit on the
grounds of limitation, the Appellant amended the original plaint by
deleting paragraph no. 8, which according to them amounted to
suppression of material facts.
19) Ld. Counsel further submits that the Appellant had earlier, in
the year 1988, filed Regular Civil Suit No. 126 of 1988 seeking an
injunction against his father. The said suit was subsequently
withdrawn, and thereafter, no suit for partition was filed until
2012. This prolonged inaction, according to the Respondents,
reinforces the plea of limitation.
20) In conclusion, learned Counsel submits that the Appellate
Court has correctly identified the legal infirmities and perversity in
the judgement of the Trial Court, and that the impugned order
warrants no interference.
REASONS & CONCLUSION
21) I have heard the learned counsel appearing for the parties
and have carefully perused the record of the Appeal.
22) Upon hearing the learned counsel and upon a careful perusal
of the record, it is evident that the Trial Court had framed several
Sumedh 18-asao-229-2024.doc
issues and adjudicated the Suit on merits after appreciating both
the oral and documentary evidence led by the parties.
23) The impugned judgment of the Appellate Court does not
demonstrate that the findings recorded by the Trial Court were
perverse, unsupported by evidence, or otherwise unsustainable in
law. The Appellate Court has not undertaken any exercise to
examine the correctness of the conclusions reached by the Trial
Court on the issues already framed and decided.
24) Instead, the Appellate Court has proceeded to remand the
entire Suit solely on the ground that a specific issue on limitation
had not been framed by the Trial Court.
25) The Respondents had pleaded an oral partition of the year
1980 and sought dismissal of the Suit on the ground of limitation.
In such circumstances, the mere absence of a formally framed
issue on limitation could not, by itself, render the entire trial
vitiated. The Appellate Court was required to examine whether
any prejudice had in fact been caused to the Respondents and
whether the evidence on record was insufficient to decide the issue
of limitation. No such finding has been recorded in the impugned
order.
26) The power of remand under Order XLI Rule 23A of the CPC is
an exceptional power and cannot be exercised mechanically. A
wholesale remand is warranted only when the judgment of the
Sumedh 18-asao-229-2024.doc
Trial Court is shown to be wholly unsustainable or where the Suit
has been disposed of without recording evidence on material
issues.
27) In the present case, the Trial Court had recorded evidence
and rendered findings on all issues framed before it. The Appellate
Court has failed to indicate as to how those findings were so
perverse or contrary to the record as to necessitate a complete
retrial.
28) Even assuming the Appellate Court was of the view that an
issue on limitation ought to have been framed, the CPC provides
specific mechanisms to address such a situation. The Appellate
Court could have framed the issue and decided it itself on the basis
of the evidence already on record, or could have adopted the
limited course contemplated under Order XLI Rule 25 CPC.
29) The impugned order does not reflect any consideration of
these statutory alternatives, nor does it disclose any reasons as to
why such courses were not adopted.
30) In these circumstances, this Court is of the view that the
impugned order suffers from a clear non-application of mind. The
Appellate Court has failed to consider the evidence on record, has
not assessed the sustainability of the Trial Court's findings, and
has not recorded any cogent reasons justifying a complete remand
for fresh adjudication on all issues. The approach adopted defeats
Sumedh 18-asao-229-2024.doc
the very purpose of the Appellate scrutiny and runs contrary to
the settled principle that remand is not to be ordered merely
because another view is possible.
31) The scope and limits of the Appellate court's power of
remand under Order XLI of the CPC have been authoritatively
explained by the Supreme Court in Corporation of Madras v. M.
Parthasarathy (supra). The Appellate court has two distinct
statutory courses available: (i) either to remand the entire matter
for retrial under Order XLI Rule 23A CPC, or (ii) to adopt the
narrower course under Order XLI Rule 25 CPC by framing specific
issues and calling for findings, while retaining the appeal.
32) The choice between these alternatives must be guided by
necessity and proportionality, keeping in mind that a complete
remand is warranted only where the original trial is shown to be
fundamentally defective or where the Appellate court is genuinely
unable to decide the controversy on the existing record.
33) The jurisprudence on non-framing of issues is equally well
settled. In Uttara Thool v. Praveen Thool (supra) , the Supreme
Court reiterated the mandate of Section 99 CPC that no decree
shall be reversed or substantially varied merely on account of any
procedural defect or irregularity unless prejudice is shown.
34) The record demonstrates that the Respondents had
specifically pleaded limitation founded on the alleged oral
Sumedh 18-asao-229-2024.doc
partition. The plea of limitation was therefore very much in issue,
notwithstanding the absence of a formally framed issue.
35) Despite raising such a plea, the Respondents failed to lead
cogent evidence to establish a clear and unequivocal denial of the
Appellant's rights, so as to attract the bar of limitation. In such
circumstances, no prejudice can be said to have been caused by the
omission to frame a specific issue.
36) The Appellate Court, being the final court of facts, was fully
empowered to reappreciate evidence and decide the controversy
on merits, or at the highest, to adopt a limited remand confined to
the issue of limitation.
37) Even on the substantive law of limitation in partition suits, a
nuanced analysis was required. In Syed Shah Ghulam v. Syed Shah
Ahmed (supra), the Supreme Court recognised that the cause of
action in a partition suit is perpetually recurring so long as the
joint status subsists and the property remains unpartitioned by
metes and bounds.
38) As expounded by the Supreme Court in Corporation of
Madras v. M. Parthasarathy (supra), the Appellate court is not
powerless in situations where it finds that an issue requires
determination but the record is either silent or incomplete. In such
cases, the appellate court is well within its jurisdiction to adopt the
appropriate statutory course, either to decide the issue itself on
Sumedh 18-asao-229-2024.doc
the existing material or to frame the necessary issue and call for
findings from the Trial Court--rather than resorting to a wholesale
remand. In the absence of any evidence led by the Plaintiff and in
view of the Defendants' failure to prove limitation despite
opportunity, the Appellate Court was fully empowered to take
appropriate steps within the framework of Order XLI, instead of
directing a de novo trial.
39) In Zarif Ahmad (Dead) through legal representatives & Anr.
v Mohd Farooq (supra) Supreme Court reiterates the settled
principle that although Section 107 CPC confers power upon the
appellate court to remand a matter under Order XLI Rule 24 CPC
where the evidence on record is sufficient. The Court underscores
that remand is not a healthy or routine practice, as it
unnecessarily prolongs litigation and compels parties to wait for a
final adjudication which could otherwise be avoided. The power of
remand, therefore, is to be exercised sparingly and only in
exceptional circumstances, such as where the trial court has
disposed of the suit solely on a preliminary issue without recording
evidence or without deciding the remaining issues, thereby making
it impossible for the appellate court to finally adjudicate the
dispute.
40) The Supreme Court in Sirajudheen v Zeenath (supra) has
held that the scope of remand under Order XL1 Rule 23 is very
Sumedh 18-asao-229-2024.doc
limited and a distinction must be borne in mind between diverse
powers of the Appellate Court to pass an order of remand. It has
been categorically held that an order of remand cannot be passed
mechanically or on the ipse dixit of the Court; it must be supported
by a finding that the decree is liable to be reversed and that a
retrial is truly necessary.
41) Applying these settled principles, remand merely on the
technical ground that a specific issue of limitation was not framed,
without any perverse findings, would amount to an unwarranted
exercise of jurisdiction, particularly when Order XLI Rule 24 CPC
empowers the Ld. Appellate Court to finally decide the matter on
the existing record.
42) In the present case, the parties were fully aware of the
controversy relating to limitation, have led evidence in support of
their respective stands, and no prejudice is demonstrated to have
been caused by the omission. A bare perusal of the issues re-
framed by the Appellate Court clearly reveals that the same
substantially overlap with and are comprehensively covered by the
broader issues already framed by the Trial Court. The Trial Court's
issues were wide enough to encompass the rival pleadings and
controversies between the parties, and evidence in respect thereof
has already been duly recorded. Except for the specific issue
relating to limitation, no new or distinct controversy has been
Sumedh 18-asao-229-2024.doc
introduced by the Appellate Court through the re-framing of
issues. In these circumstances, directing a fresh adjudication on all
such re-framed issues, despite the availability of complete and
recorded evidence, was wholly unwarranted and results in a
needless duplication of trial proceedings, and more seriously,
enables the parties to fill lacunae in the evidence already led,
thereby, impermissibly altering the outcome of the suit.
43) Accordingly, the impugned order dated 1 February 2024
cannot be sustained. The Appeal from Order deserves to be
allowed. The matter is required to be remanded back to the Ld.
Appellate Court for reconsideration afresh, with a direction to
decide the appeal on merits after appreciating the evidence
already on record and, if deemed necessary, to frame and
determine the issue of limitation in accordance with law, either by
itself or by adopting the limited course permissible under the Code,
instead of ordering a de novo trial.
44) It is hereby clarified that this Court has not delved into the
merits of the matter and that contentions of both parties are kept
open.
45) In light of the above, the Appeal from Order is allowed.
:: ORDER ::
1. The Appeal from Order is allowed.
2. The order dated 1st February 2024 passed by the learned
Sumedh 18-asao-229-2024.doc
Ad-hoc District Judge-1, Khed-Rajgurunagar, District Pune
in Regular Civil Appeal No. 19 of 2020, remanding the
matter to the Trial Court, is quashed and set aside.
3. The Appeal from Order 229 of 2024 is remanded back to
the First Appellate Court for fresh adjudication on merits,
in accordance with law, after considering the entire
evidence already on record.
4. The First Appellate Court shall decide the Appeal by
exercising its powers under Order XLI Rules 24 and/or 25
of the Code of Civil Procedure, as may be deemed
appropriate.
5. The parties shall appear before the learned First Appellate
Court on a date to be fixed by that Court.
6. The Appeal from Order and Interim Application are
disposed of accordingly. There shall be no order as to costs.
7. The parties shall appear before the First Appellate Court
on 2nd February 2026.
(KAMAL KHATA, J)
Judgements Relied:
1. Corporation of Madras v M. Parthasarthy(2018)9 SCC 445.
2. Uttara Praveen Thool Vs. Praveen s/o Bhanudas Thool (2014)
Mh.LJ 321.
3. Kunju Kesavan v MM Philip AIR 1964 SC 164
4. Sayeda Akhtar v. Abdul Ahad (2003)7 SCC 52
5. Nedunuri Kameswaramma v Sampati Subba Rao AIR 1963
SC 88
6. Zarif Ahmad (Dead) through legal representatives & Anr. v
Mohd Farooq (2015) 13 SCC 674
7. Syed Shah Ghulam v. Syed Shah Ahmed (1971) 1 SCC 597
8. Krishna Pillai v. Padmanabha Pillai (2004) 12 SCC 754
9. Sirajudheen v Zeenath 2024 17 SCC 250
