[Cites 6, Cited by 0]
Madhya Pradesh High Court
Smt. Sunita Prihar vs Sevaram Aanjna on 2 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-IND:28176
1 MA-1857-2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
MISC. APPEAL No. 1857 of 2020
SMT. SUNITA PRIHAR
Versus
SEVARAM AANJNA AND OTHERS
Appearance:
Shri Manish Manana, learned counsel for the appellant.
Shri Deepak Kumar Rawal, learned counsel for respondents No.1 and 2.
ORDER
Heard on : 24.09.2025
Pronounced on : 02.12.2025.
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The appellant has filed this appeal under Order XLIII Rule 1 (u) of the
Code of Civil Procedure against the order dated 24.01.2020 passed in Regular
Civil Appeal No.20/2019, whereby the matter was remanded back to the trial
Court with the framing of four issues in accordance with para 19 of the impugned
award.
2. Shorts facts of the case are the the plaintiff / appellant filed a suit for
specific performance of an agreement to sale, possession and permanent
injunction.
2.1 The appellant averred in its plaint that the defendants / respondents
No.1 and 2 are the joint owner and possession holder of the land situated in
Survey No.434 (admeasuring 0.13 hectares), Survey No.437 (admeasuring 0.26
hectares) and Survey No.438 (admeasuring 0.32 hectares) (herein after termed as
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suit property).
2.2 The said respondents No.1 and 2 executed an agreement to sale in
favour of the appellant on 03.12.2015, which was registered on 04.12.2015. The
sale consideration was fixed at Rs.15,00,000/-, out of which Rs.14,00,000/- was
paid at the time of execution of the agreement of sale and the remaining
Rs.1,00,000/- was agreed to be paid on the date of execution of the sale deed.
2.3 It was further averred in the plaint that it was agreed between the parties
that the remaining amount would be paid on 05.01.2016 and the sale deed would
also be executed on the same date. However, despite repeated requests by the
plaintiff, respondents No.1 and 2 neither received the remaining amount nor
executed the sale deed. Consequently, a notice was sent through counsel for their
presence at the office of the Registrar, Ujjain on 04.01.2016 for execution of sale
deed. When they did not appear, the appellant again went on 05.01.2016 bringing
the remaining amount of the sale consideration. However, respondents No.1 and 2
did not turn up on that date either.
2.4 Respondents No.1 and 2 on 06.01.2016 sent a reply to the notice of the
plaintiff and denied the execution of the agreement. In such circumstances, the
suit was filed by the plaintiff / appellate before the trial Court.
2.5 Defendants / respondents No.1 and 2 filed their written statement,
wherein they not only denied the execution of the agreement of sale but also
contended that the suit property is joint ancestral property in which their sister in
law, Leelabai w/o Motiram and their sister, Leelabai w/o Mangilal also have a
share.
2.6 It was further averred in the written statement that the agreement to sale
was without any consideration and was executed by playing fraud.
2.7 Learned trial Court framed as many as five issues, out of which issues
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No.1 to 3 were decided in favour of the plaintiff / appellant. However, issues No.4
and 5 were decided against her.
2.8 Respondents No.1 and 2, on 19.12.2016 filed an application before the
learned trial Court under Order XIV Rule 5 read with Section 151 of the CPC for
framing of additional issues in respect of the averments made in their written
statement. However, learned trial Court rejected the said application vide order
dated 10.01.2019 with a cost of Rs.500/-.
2.9 Learned trial Court found that the agreement had been executed.
However, as per the findings recorded in para 12 of the judgment and decree, the
Court also held that the suit property was not exclusively owned or possessed by
respondents No.1 and 2.
2.10 The suit property is ancestral in nature, in which the widow of
Motiram namely Leelabai and the widow of Mangilal named Leelabai were joint
holders of title and possession. Since these two women were not made parties to
the suit, the discretionary relief under Section 20 of the Specific Performance Act,
1963 was denied. Accordingly, the suit was dismissed vide judgment and decree
dated 29.03.2019, against which a regular first appeal was filed.
2.11 The first appellate Court after considering the evidence on record
noted in para 19 that the defendants' application filed under Order XIV Rule 5
read with Section 151 of the CPC had been dismissed. It also took into account
the pleadings of the respective parties and proposed the following four issues :
"1. या वाद ने वाद त अनुबंधप दनांक 04.12.2015 का िन पादन
कपटपूवक करवाया है ?
2. या वाद ने अनुबंधप क रािश 15 लाख पये ितवाद गण को अदा नह ं क
है ?
3. या वाद त भूिम सव . आराजी सव नं. 434 रकबा 0.13 हे ., सव नं. 437
रकबा 0.26 हे ., सव नं. 438 रकबा 0.32 हे . कुल क ता 3 कुल रकबा 0.71 हे .
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पैतक
ृ होकर संप म ितवाद गण क भाभी लीलाबाई पित मोतीराम व उसक
बहन लीलाबाई पित मांगीलाल ह सेदार है ?
4. या अचल संप के व य मू य क 2 लाख पये से अिधक क रािश चैक
अथवा ड ड से भुगतान क जाना विध अनुसार आव यक है ?"
2.12 The appellate Court remanded the matter for recording evidence on the
four issues it had framed and passed a fresh judgment on the same date.
3. Learned counsel for the appellant by referring to the findings in para 12
of the learned trial Court's judgment, submits that the entire suit was remanded by
the first appellate Court solely on the ground that the two ladies who were joint
holders of possession and title were not made parties to the civil suit.
3.1 He further submits that in paras 16 to 20 of the judgment, the first
appellate Court recorded its entire consideration, but nowhere did it record any
satisfaction that the matter required remand.
3.2 He also submits that the appeal was not filed by the defendants and they
failed to lead any evidence regarding the shares of the aforementioned two ladies.
As such, the remand amounts to facilitate the respondents in leading evidence
afresh, which is not permissible under the law.
3.3 In support of his submissions, he placed reliance on the judgements of
the Hon'ble Apex Court as well as this Court passed in the cases of Shashikala Bai
vs. Asharfi Devi and Others in 2014 (2) MPLJ 34 ; Hardevinder Singh vs.
Paramjit Singh and Others in 2014 (1) MPLJ 487 and Syeda Rahimunnisa vs.
Malan Bi (Dead) by LRs and Anr. in 2016 SAR (Civil) 1079 .
4 . Per contra , learned counsel for respondents No.1 and 2 refers to sub-
paras 4 to 6 of para 12 and submits that the trial Court has recorded a finding that
the plaintiff failed to prove the title of respondents No.1 and 2. He further refers to
the initial portion of para 12, where the learned trial Court specifically mentioned
the written statement of respondents No.1 and 2 and found that they were not the
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exclusive holders of title and possession over the suit property. It was also
recorded that Leelabai, the widow of Motiram and Leelabai the widow of
Mangilal were joint holders of title and possession and they had not been
impleaded as defendants in the suit. As such, the Court declined to grant the relief
of specific performance, which is a discretionary relief under Section 20 of the
Specific Relief Act.
4.1 He submits that in view of these clear findings by the trial Court, the
issue was very much present and appellate Court rightly framed issues No.1 to 4
in para 19 of the appellate judgment. These issues are in accordance with the
pleadings of the respective parties. He thus prays for dismissal of the appeal.
5. Heard learned counsel for the respective parties and perused the
documents available on record.
6. On 06.09.2023, this Court framed the following substantial questions of
law :
"(a) Whether upon recording finding to the effect that the trial court
ought to have framed issues in view of the plea as contained in the
written statement, the lower appellate Court ought to have itself
framed the issues and proceeded to decide the appeal on merits ?
(b) Whether merely for non-framing of an issue when the parties had
already led their evidence and had not stated that they have any
further evidence to lead, the remand made by the lower appellate
Court is justified ?"
7. From the findings and facts recorded by the trial Court in its judgement
dated 29.03.2019, it is crystal clear that respondents No.1 and 2 in their written
statement specifically stated that they are not the sole title holders or owners of the
suit property, in addition to them, Leelabai wife of Motiram and Leelabai wife of
Mangilal are also joint title holders and owners.
7.1 It was further pleaded in the written statement that the purported
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agreement to sale was executed through deceit and fraud and without any sale
consideration. However, no issue was framed by the trial Court on these crucial
pleadings , which were highly relevant for adjudication of the matter.
8. The appellant has placed reliance on the judgement of Shashikala Bai
(Supra), however, the facts of that case materially different. In that case, the
plaintiff was already in possession of the ground floor of the suit property and
although the defendant had claimed that the property was joint family property, he
executed the agreement to sale by falsely representing himself as the sole owner.
In those circumstances, the defence that the suit property was joint family
property was not accepted by this Court.
8.1 In contrast, the facts in the present case are different. In the written
statement, not only has the execution of the agreement to sale been denied, but it
has also been alleged that it was obtained through deceit and fraud. Respondents
No.1 and 2 have further pleaded that the plaintiff's husband, who is a Government
servant is involved in illegal transactions in his wife's name. It has also been
alleged that the agreement to sale was without any sale consideration. Although a
cash payment Rs.14,00,000/- is claimed, the same has been specifically denied..
As such, the facts of the present case are clearly distinguishable from the said case.
9. As regards the judgement in Hardevinder Singh (Supra) , the said
judgment is on a completely different footing. In that case, the Court while
interpreting the provisions of Order XLI Rule 22 of the CPC held that a
respondent may defend himself without filing a cross-objection to the extent that
the decree stands in his favour. However, if he intends to challenge any part of the
decree, it is obligatory for him to file a cross-objection.
10. Learned counsel for the appellant by referring to this judgement of the
Hon'ble Apex Court has sought to convey that the findings recorded in favour of
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the plaintiff cannot be assailed by the respondents in appeal in the absence of any
cross-objection filed by them. However, the situation in the present case is
different.
10.1 The first appellate Court itself found, based on the evidence available
on record as well as the pleadings, that there was a need to frame four issues
specifically regarding the execution of the agreement to sale itself and the title and
ownership of the two women referred to earlier. The provisions of Order XLI Rule
25 of the CPC clearly provide that where the Court from whose decree the appeal
is preferred has omitted to frame or try any issue essential to the proper decision of
the suit on its merits, the appellate Court may, if necessary, frame such issues and
refer the same for trial to the Court from whose decree the appeal arises.
11. In the present case, the first appellate Court has clearly recorded its
satisfaction that the four issues framed in para 19 of the impugned order are
essential for a proper adjudication of the case. In view of the pleadings and
evidence available on record, this Court does not find any perversity in that
findings.
12. As far as the third citation relied upon by the appellant is concerned,
namely Syeda Rahimunnisa (Supra) , the Hon'ble Apex Court in para 35 of the
judgment held as under :
"35. It is a settled principle of law that in order to claim remand of
the case to the trial court, it is necessary for the appellant to first
raise such plea and then make out a case of remand on facts. The
power of the appellate court to remand the case to subordinate
court is contained in order XLI Rule 23, 23-A and 25 of CPC. It
is, therefore, obligatory upon the appellant to bring the case under
any of these provisions before claiming a remand. The appellate
court is required to record reasons as to why it has taken recourse
to any one out of the three Rules of Order XLI of CPC for
remanding the case to the trial court. In the absence of any ground
taken by the respondents (appellants before the first appellate
court and High Court) before the first appellate court and the High
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Court as to why the remand order in these cases is called for and
if so under which Rule of Order XLI of CPC and further in the
absence of any finding, there was no justification on the part of
the High Court to remand the case to the trial court. The High
Court instead should have decided the appeals on merits. We,
however, do not consider proper to remand the case to High Court
for deciding the appeals on merits and instead examine the merits
of the case in these appeals."
13. In the present case, the first appellate Court has clearly followed the
mandate of law. It has recorded its reasons for remand and has also framed the
necessary issues. Thus, this judgment is of no assistance to the appellant.
14. In view of the above analysis, question No.(a) is decided by holding
that the appellate Court has recorded the reasons for remand as well as the
requirement for recording of evidence. Hence, this question is decided against the
appellant.
14.1 With respect to the second question, from the above analysis, it is
clear that matter involves not only the non-framing of issues, but also the rejection
of the application filed by the respondents under Order XIV Rule 5 of the CPC. As
a result, proper evidence on the issue could not be recorded. Hence, this issue is
also decided against the appellant.
15. In view of the above analysis, the present appeal is devoid of merits.
Consequently, it fails and is hereby dismissed.
No order as to costs.
Certified copy as per rules.
(PAVAN KUMAR DWIVEDI)
JUDGE
Anushree
