Madhya Pradesh High Court
Jagdish Prasad vs Smt. Koushalya on 1 March, 2023
Author: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF MARCH, 2023
MISCELLANEOUS APPEAL No. 1274 of 2021
BETWEEN:-
1. JAGDISH PRASAD S/O LATE SHRI SIYARAM
TIWARI, AGED ABOUT 77 YEARS, OCCUPATION:
FARMER.
2. SANJAY KUMAR TIWARI S/O JAGDISH TIWARI,
AGED ABOUT 45 YEARS, OCCUPATION: FARMER.
3. VIJAY KUMAR TIWARI S/O JAGDISH PRASAD
TIWARI, AGED ABOUT 37 YEARS, OCCUPATION:
FARMER.
ALL R/O VILLAGE BHATI TEHSIL HUZUR
DISTRICT REWA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.P. AGRAWAL - SENIOR ADVOCATE ASSISTED BY MS. NEERJA
AGRAWAL)
AND
1. SMT. KOUSHALYA W/O LATE SHRI
CHANDRAMANI PRASAD TIWARI, AGED ABOUT
75 YEARS, OCCUPATION: FARMER R/O VILLAGE
BHATI, TEHSIL HUZUR, DISTRICT REWA
(MADHYA PRADESH)
2. BRAJENDRA PRASAD S/O LATE CHANDRAMANI
P R A S A D TIWARI, AGED ABOUT 40 YEARS,
OCCUPATION: FARMER VILLAGE BHATI TEHSIL
HUZUR DISTRICT REWA (MADHYA PRADESH)
3. NAGENDRA DEAD THROUGH LRS.
3(I) SMT. MAMTA TIWARI W/O LATE NAGENDRA
Signature Not Verified
SAN
TIWARI, AGED ABOUT 50 YEARS.
Digitally signed by PUSHPENDRA PATEL
Date: 2023.03.01 20:15:19 IST 3(II) AMRITA TIWARI D/O LATE NAGENDRA TIWARI,
AGED ABOUT 20 YEARS.
2
3(III) RAHUL TIWARI S/O LATE NAGENDRA TIWARI,
AGED ABOUT 18 YEARS.
3(IV) SHIVANI TIWARI D/O LATE NAGENDRA TIWARI
THROUG MOTHER SMT. MAMTA TIWARI, AGED
ABOUT 16 YEARS, MINOR THROUGH MOTHER
SMT. MAMTA TIWARI.
RESPONDENTS NO.3(I) TO 3(V) R/O BHANTI,
TAHSIL HUJUR, DISTRICT REWA (MADHYA
PRADESH)
4. YADVENDRA PRASAD S/O LATE SHRI
CHANDRAMANI PRASAD TIWARI, AGED ABOUT
38 YEARS, OCCUPATION: FARMER BHANTI,
TAHSIL HUJUR, DISTRICT REWA (MADHYA
PRADESH)
5. JITENDRA S/O KATE SGRU CGABDRANABU
ORADAS TIWARI, AGED ABOUT 34 YEARS,
OCCUPATION: FARMER BHANTI, TAHSIL HUJUR,
DISTRICT REWA (MADHYA PRADESH)
6. VISHWANATH PRASAD S/O LATE SHRI SIYARAM
TIWARI, AGED ABOUT 66 YEARS, OCCUPATION:
FARMER BHANTI, TAHSIL HUJUR, DISTRICT
REWA (MADHYA PRADESH)
7. RAGHVENDRA PRASAD OJHA S/O SHRI RAMLAL
OJHA, AGED ABOUT 60 YEARS, OCCUPATION:
FARMER VILLAGE PATAUNA, TEHSIL RAIPUR
KAR CHULIYAN , DISTRICT REWA (MADHYA
PRADESH)
8. SURENDRA PRASAD S/O SHRI RAMLAL OJHA,
AGED ABOUT 55 YEARS, OCCUPATION: FARMER
VILLAGE PATAUNA, TEHSIL RAIPUR
KAR CHULIYAN , DISTRICT REWA (MADHYA
PRADESH)
9. VIMLA D/O LATE SHRI CHANDRAMANI PRASAD
W/O SHRI RAMADHAR CHATURVEDI, AGED
ABOUT 47 YEARS, VILLAGE KYOTI, TEHSIL
SIRMOUR, DISTRICT REWA (MADHYA PRADESH)
Signature Not Verified
10. RAMWATI D/O LATE SHRI BHAGWANDAS, AGED
SAN
ABOUT 65 YEARS, OCCUPATION: HOUSE WIFE
VILLAGE JEWLA, TEHSIL RAIPUR KARCHULIYAN,
Digitally signed by PUSHPENDRA PATEL
Date: 2023.03.01 20:15:19 IST DISTRICT REWA (MADHYA PRADESH)
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11. SHIVENDRA S/O SHRI SHIVNATH MISHR
VILLAGE KUSHA, TEHSIL HUZUR, DISTRICT
REWA (MADHYA PRADESH)
12. NAARENDRA S/O SHRI SHIVNATH MISHR
VILLAGE KUSHA, TEHSIL HUZUR, DISTRICT
REWA (MADHYA PRADESH)
13. SHASHI D/O SHIVNATH MISHRA W/O SURENDRA
PA N D E Y VILLAGE KANJI, TEHSIL SIRMOUR,
DISTRICT REWA (MADHYA PRADESH)
14. NIRMALA D/O LATE SHRI SHIVNATH MISHRA
W/O LATE SHRI SACCHITANAND TIWARI
VILLAGE DHAWAIYA, TEHSIL HUZUR, DISTRICT
REWA (MADHYA PRADESH)
15. COLLECTOR THE STATE OF MADHYA PRADESH
REWA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ABHIJEET AWASTHI - ADVOCATE FOR THE RESPONDENTS NO.1
TO 14 AND SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE FOR
THE RESPONDENT NO.15-STATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous appeal under Order 43 Rule 1(u) of the Code of Civil
Procedure is filed by the defendants No.1, 3 and 4 being aggrieved of judgment
dated 15.03.2021 passed by the learned 13th Additional District Judge, Rewa in
Regular Civil Appeal No.163/2016, remanding the matter framing a issue, which
was already before the trial Court and which stood decided, namely, Whether
the disputed 'Will' dated 01.07.1991 is valid qua defendants No.1 to 4.
It is submitted that from a careful perusal of the judgment of the trial
Court dated 23.07.2016 passed in Civil Suit No.11-A/2016, it is evident that
said issue was framed and it was tried and decided by the trial Court.
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.03.01 20:15:19 IST Issue No.2 is specific which when translated, reads as under:-
''Whether Will executed in favour of defendants No.1 to 4 in
relation to the disputed land dated 01.07.1991 is ineffective and
null and void in relation to plaintiffs and defendants No.7 to 10.''
Evidence was adduced and findings were recorded.
It is submitted that appellate Court was only required to appreciate the
evidence on record and then should have decided the issue either way on the
basis of the available material and he could not have directed the parties to
approach the Civil Court again on remand, permit them to fulfill the lacunae in
the evidence.
Shri Abhijeet Awasthy submits that in para 55 of the judgment of the trial
Court, issue ought to have been framed in affirmative rather than in negative.
That is a matter of argument.
A coordinate Bench of this Court in case of Vipin Kumar and others
Vs. Sarojani, 2013(1) M.P.L.J. 480 , has not upheld the tendency of the
appellate Courts to make wholesale remand, without there being any basis. This
tendency needs to be curbed.
There is no material on record which was not available to the appellate
Court to pass a judgment and decree on its merits. Therefore, the order of
remand is hereby quashed.
Matter is remitted to learned 13th Additional District Judge, Rewa to pass
judgment after affording opportunity of hearing to the rival parties and decide
the appeal on its own merits not later than 90 days of receipt of certified copy
of the order being passed today.
In above terms, this miscellaneous appeal is disposed of.
Signature Not Verified
SAN
L.C.R. be sent back.
Digitally signed by PUSHPENDRA PATEL
Date: 2023.03.01 20:15:19 IST
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.03.01 20:15:19 IST
