Madhya Pradesh High Court
Smt. Parvati vs Smt. Vidya on 23 April, 2022
Author: Sunita Yadav
01
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. APPEAL No. 3545 of 2017
Between:-
1. SMT. PARVATI D/O SHRI ASHARAM ,
AGED ABOUT 52 YEARS,
INDERGARH THASIL INDERGARH
(MADHYA PRADESH)
2. MANEERAM S/O SHRI
RAMCHARAN , AGED ABOUT 57
YEARS, VILLAGE AERONI,
BHANDER DATIA MP PRESENT R/O
WARD NO. 10 MADIPURA
INDERGARH DATIA (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI, J.P. MISHRA, ADVOCATE )
AND
1. SMT. VIDYA D/O SHRI ASHRAM ,
AGED ABOUT 40 YEARS, VILL.
CHIMGHAN THASIL INDERGARH
(MADHYA PRADESH)
2. SMT. KISHORI D/O SHRI
ASHARAM , AGED ABOUT 37
YEARS, OCCUPATION: W/O LATE
RAMDEEN VILLAGE AERONI
BHANDER (MADHYA PRADESH)
3. RAMKUMAR S/O SHRI
MANIRAM , AGED ABOUT 28
YEARS, WARD NO.10,
MADIPURA, INDERGARH
(MADHYA PRADESH)
4. COLLECTOR THE STATE OF
MADHYA PRADESH DATIA
02
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI VILAS TIKHE, ADVOCATE FOR RESPONDENT
NO.1)
(NONE FOR THE RESPONDENTS NO.2 & 3.)
(SHRI R.S. DHAKAD, PANEL LAWYER FOR
RESPONDENT NO.4/STATE)
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This appeal coming on for hearing this day, the court passed the
following:
ORDER
( Passed on 23rd of April, 2022)
This Misc. Appeal under Order 43 Rule 1 (U) of CPC has been
filed against the judgment and decree dated 27/11/2017 passed by
Additional District Judge, Seondha, District Datia (M.P.) in Civil
Appeal No.6-A/2016, whereby the appellate Court set aside the
judgment and decree dated 22/02/2016 passed by Civil Judge, Class-II,
Seondha, District Datia (M.P.) in civil suit No.86-A/2014 and
remanded the case back to the learned trial Court for deciding the suit
afresh.
2. It is not disputed between the parties that Vidya, Parvati and
Kishori are sisters and daughters of late Asharam and Maneeram is
husband of Parvati and son-in-law of Asharam and Ramkumar is son
of Parvati and Maneeram.
3. The facts in brief to decide this petition are that the respondent
No.1/plaintiff- Vidya filed a civil suit for declaration of title in respect
of land survey no.477 admeasuring area 0.162 hectare, land survey no.
483/1 admeasuring area 0.147 hectare, land survey no.514
admeasuring area 0.179 hectare, land survey no. 627 admeasuring area
0.243 hectare, land survey no. 713 admeasuring area 0.032 hectare,
land survey no. 481 admeasuring area 1.327 hectare, land survey no.
472 admeasuring area 0.858 hectare and land survey no. 704
admeasuring area 0.065 hectare situated at village Indergarh, Tehsil
Indergarh, District Datia (M.P.) against the defendants stating therein
that the disputed property is the property of Joint Hindu Family
Property and after the demise of late Asharam, plaintiff alongwith two
sisters are having 1/3rd share respectively. It is further alleged that
defendant no.3- Maneeram cleverly without any legal right got
recorded his name as well as the name of his wife and son in the
revenue record, despite of the fact that defendant No.1- Parvati and
defendant No.2- Kishori are having equal share in the suit property.
4. The defendant No.1- Parvati, defendant No.3- Maneeram and
defendant No.4- Ramkumar filed joint written statement and denied
the plaintiff's claim and stated that late Asharam was having no son
and for that defendant No.1-Parwati alongwith his husband Maneeram
used to live with Asharam and due to love and affection late Asharam
vide Will dated 31.12.1996 bequeathed the land survey No.514, 627
and 713 in favour of Maneeram and thus, after the demise of late
Asharam, Maneeram by virtue of Will became the owner of said land.
It is further contended that vide registered sale deed dated 28.01.1986,
Ram Kumar/defendant No.4 purchased the land survey No.472 and
1/3rd share of land survey no.704 from late Asharam. Vide registered
sale deed dated 07.10.1988, land survey No.481 was purchased by
defendant no.1-Parvati from late Asharam, vide registered sale deed
dated 20.02.1991, land survey No.471 and 483 were purchased by
Maneeram from late Asharam and vide registered sale deed dated
20.02.1991, land survey No.626, defendant No.2 Kishori Devi and
plaintiff/Vidya purchased the land from late Asharam and plaintiff on
27.06.2007 relinquished her rights in favour of defendant No.2-
Kishori Devi and remaining land survey No.466/2/1 was purchased by
Ram Kumar vide registered sale deed dated 06.10.1995 and on the
basis of said alienation names were recorded in the revenue records of
which plaintiff was having knowledge and suit filed by the plaintiff in
barred by limitation.
5. The defendant No.2-Kishori filed separate written statement and
denied the plaintiff's claim and stated that late Shri Asharam for bona-
fide use alienated the suit property and prayed for dismissal of the suit.
The learned trial Court for resolving the dispute between the parties
framed the issues and both the parties adduced documentary as well as
oral evidence in support of their claim.
6. The learned trial Court vide judgment and decree dated
22.02.2016 dismissed the plaintiff's suit. Against the judgment and
decree dated 22.02.2016, the plaintiff filed First Appeal before the
Additional District, Judge, Seondha, District Datia (MP) which was
registered as First Appeal No.6A/2016.
7. During the pendency of the First Appeal, plaintiff preferred two
applications, one under Order 41 Rule 27 C.P.C. seeking leave of the
appellate Court to bring documents to support her contention that late
Shri Asharam received the suit land from his ancestors and also filed
certified copy of Khasra of the year 1945-46 and of Samvat 2041-2045
on record and second application under Order 6 Rule 17 C.P.C. seeking
amendment in the plaint for incorporating pedigree of late Asharam
and also explanation to the effect that how late Shri Asharam received
the suit property from his ancestors.
8. Learned First Appellate Court allowed both the applications vide
impugned judgment and decree dated 27.11.2017 set-aside the
judgment and decree passed by the learned trial Court and remanded
the matter to the learned trial Court for afresh consideration.
9. Learned counsel for the appellant argued that the order
impugned being perverse, illegal and against the settled principles of
law is liable to be quashed. It is further argued that the appellate Court
has committed illegality and jurisdictional error in remanding the well
reasoned and speaking judgment because it is a settled law that the
power of remand cannot be exercised to fill up the lacuna of one or
other party. Such power can only be exercised for curing a radical
defect in trial or hearing in the appeal resulting in miscarriage of
justice, therefore, submits that the judgment passed by appellate court
is illegal, without jurisdiction and bad in law deserves to be set aside.
10. On the other hand, learned counsel for the respondents argued
that the order impugned in accordance with settled principle of law and
there is no illegality caused by the first appellate Court, therefore,
prays to dismiss the appeal.
11. Heard learned counsel for the both the parties and perused the
material available on record.
12. The main issue in this case is that whether the property in
dispute is property of Joint Hindu Family of plaintiff and defendant
No.1 and whether Asharam had a right to execute the Will of disputed
property? It is not disputed between the parties that Asharam is father
of plaintiff and defendant No.1. Consequently, the documents filed
alongwith the application under Order 41 Rule 5 of CPC which are
certified copies of public documents and in which the name of person
having title in respect to the disputed property is recorded have a direct
and important bearing on the main issue in the suit.
13. Learned counsel for the appellants cited the case of Ramesh
Singh Vs. Vaijanti Bai [2003 (3) MPHT 497], wherein it is held that
power of remand cannot be exercised to fill up the lacuna of one or
other party. However, facts and circumstances of above case is
different from this case.
14. The decision of Hon'ble Supreme Court in the case of Sanjay
Kumar Singh Vs. State of Jharkhand [2022 SCC OnLine SC 292]
held that "The appellate court may permit additional evidence where
the additional evidence sought to be adduced removes the cloud of
doubt over the case and the evidence has a direct and important
bearing on the main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be permitted on record,
such application may be allowed. Even, one of the circumstances in
which the production of additional evidence under Order 41 Rule 27
CPC by the appellate court is to be considered is, whether or not the
appellate court requires the additional evidence so as to enable it to
pronouncement judgment or for any other substantial cause of like
nature. As observed and held by this Court in the case of A. Andisamy
Chettiar Vs. Subburaj Chettiar, reported in (2015) 17 SCC 713, the
admissibility of additional evidence does not depend upon the
relevancy to the issue on hand, or on the fact, whether the applicant
had an opportunity for adducing such evidence at an earlier stage or
not, but it depends upon whether or not the appellate court requires the
evidence sought to be adduced to enable it to pronounce judgment or
for any other substantial cause. It is further observed that the true test,
therefore is, whether the appellate court is able to pronounce judgment
on the materials before it without taking into consideration the
additional evidence sought to be adduced." The similar view is held in
the case of Smt. Chandravati Devi Vs. Premlal @ Popa Kachi And
Ors. [AIR 2007 MP 35].
15. In view of discussion as above, the impugned judgment and
decree dated 27/11/2017 passed by Additional District Judge, Seondha,
District Datia (M.P.) in Civil Appeal No.6-A/2016 found to be in
accordance with law and no case for interference is made out.
16. Consequently, appeal fails and is hereby dismissed.
(SUNITA YADAV)
vpn JUDGE
VIPIN KUMAR
AGRAHARI
2022.04.23
17:50:43 +05'30'
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
