Madhya Pradesh High Court
Smt. Lalmani W/O Late Shri Bhaiya Lal ... vs Smt. Maya Devi on 18 June, 2025
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:25969
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 18th OF JUNE, 2025
MISC. APPEAL No. 6425 of 2023
SMT. LALMANI W/O LATE SHRI BHAIYA LAL DWIVEDI
THROUGH HER LRS MOINDRA KUMAR @ MUNNA AND
OTHERS
Versus
SMT. MAYA DEVI AND OTHERS
Appearance:
Shri A.K. Jain - Advocate for the appellants.
Shri Umesh Shrivastava - Advocate with Shri Dhananjay Shukla
- Advocate for respondent no.1.
Ku. K.C.V. Rao - Panel Lawyer for the respondent -State of M.P.
JUDGMENT
This appeal is filed against the order dated 30.9.2023 passed in
Regular Civil Appeal No.07 of 2022 by learned First Additional District
Judge, Amar Patan, district Satna arising out of judgment and decree
dated 24.12.2021 passed by learned Civil Judge, Junior Division,
Amarpatan, Satna in Civil Suit No. 32-A of 2013 whereby learned trial
court had partly allowed the suit of the plaintiff and allowed the counter
claim of the defendant nos. 1 to 3 regarding the suit property as
mentioned in detail in Para-1 of the judgment of the trial court situated in
village Padaha, tahsil Amarpatan while the suit of the plaintiff was for
exclusive declaration of ownership and permanent injunction on the suit
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property but it was allowed partly for 1/5th share and counter claim of
each defendant nos. 1 to 3 was allowed for 4/15th part of the suit
property for partion.
2. On an appeal, learned First Appellate Court at Satna vide
judgment and decree dated 30.9.2023 in Para-45 of the judgment held
that the trial court has not found Will (Ex.P-41) duly proved but on the
Ration Card and on original old aged Pension Identity Card there are
thumb impression which can be compared with the thumb impression
on Will (Ex.P-41) and therefore, allowed the application under Order 41
Rule 27 of the CPC as per Para-47 of the judgment.
3. Learned counsel for the appellant relied on the judgment of
Lisamma Antony and another Vs. Karthiyayani and another reported in
(2015) 11 SCC 782 wherein the dispute was regarding boundaries of the
suit property, Hon'ble Supreme Court held that in the facts and
circumstances of the case the remand was not proper. In that case
remand made by the Second Appellate Court, i.e. High Court and
therefore, the judgment of the First Appellate Court was confirmed by
Hon'ble Supreme Court.
4. Learned counsel for the appellant has also relied on the
judgment of Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan
reported in (2006) 9 SCC 166 in which dispute was relating to suit
property involving parenthood of parties involving rights to property
and High Court remanded the matter to the Trial Court to raise
appropriate plea and adduce additional evidence and Hon'ble Supreme
court held thus :-
"5. We are of the view that the High Court misdirected itself.
It should have considered whatever evidence was on record for the
purpose of disposing of the appeals and either confirmed or reversed
the order of the trial court after reappreciation of the evidence.
Accordingly, we set aside the decision of the High Court and the
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matter is remanded back to it for the purpose of redetermination of
the disputes between the parties. We make it clear that we have not
gone into the merits of the dispute in any manner whatsoever and it
will be open to the High Court to proceed with and dispose of the
appeals in such manner as it thinks fit."
5. At the time of argument, it was submitted on behalf of
respondent side that the matter could have been remanded back in the
light of judgment of Muzaffar Ali Vs. Dasaram reported in (2009) 2
SCC 654 in which Hon'ble High Court did not consider the argument
that before the appellate court, application under Order 41 Rule 27 of
CPC was filed but it was rejected, Hon'ble Supreme Court held that
although application was rejected by the first appellate court after giving
reasons but this point was not considered while deciding the appeal by
the High Court and, therefore, Hon'ble Supreme Court remanded the
matter.
6. Reference is also made by learned counsel for the respondent to
the order dated 18th of March 2024 passed by this High Court in M.A.
No.5941 of 2022 (Tribhuwan Kushwaha and others Vs. Ramashray
Singh Patel (dead) through L.Rs. in which Hon'ble Coordinate Bench
has held that allowing the application under Order 41, Rule 27 of CPC in
the facts and circumstances of the case where dispute was regarding
boundaries was proper and dismissed Misc Appeal against remand order.
7. Learned counsel for the respondent also relied on the judgment
dated 23rd of August 2023 passed by Hon'ble Coordinate Bench of this
court in the case of Jaiprakash Mishra Vs. Anusuiya Tiwari in M.A.
No.2012 of 2022, wherein the First Appellate Court remanded the matter
to the trial court for impounding the document and permitting
examination of handwriting of document (Ex.P-2) by the Handwriting
Expert and the order was upheld holding that it was vital piece of
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evidence.
8. In the case where order dated 30.9.2023 is under challenge
before this court the facts are similar to the facts narrated above in the
case of Jaiprakash Mishra (supra). Learned First Appellate Court had
directed that the Will which is already on record to be proved by
comparing the signature on the other admitted Government documents
i.e. Ration Card and Pension Identity Card. Therefore, in the considered
view of this court in the facts and circumstances of the case, no ground
appears on which order impugned can be set aside. Learned First
Appellate Court has passed a reasonable order. Therefore, this appeal
against the order dated 30.9.2023 passed in Regular Civil Appeal No. 07
of 2022 is having no merit and is dismissed as such.
(AVANINDRA KUMAR SINGH)
JUDGE
bks
