Chaman Singh vs Harjinder Singh and Others

Paramjeet Singh, J.—This regular second appeal is directed against the judgment and decree dated 30.09.2013 passed by learned Additional District Judge, Amritsar whereby judgment and decree dated 30.09.2010 passed by the Court of first instance has been set aside and civil suits titled ''Harjinder Singh v. Chaman Singh and another'' and civil suit titled ''Chaman Singh and another v. Surinder Kaur and others'' have been remanded back to the Court of first instance for fresh decision. Short question that arises for consideration in this appeal is whether regular second appeal is maintainable against the remand order passed by the lower Appellate Court.

For convenience sake, reference to parties is being made as per their status in the suit.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts, as pleaded in civil suit titled ''Chaman Singh and another v. Surinder Kaur and others'' are to the effect that plaintiffs filed suit for partition by metes and bounds of double storey house bearing No. D-06/684, shown in red colour and marked with letters ''ABCD'' in the site plan attached with the plaint which was allotted to Durga Singh after partition of the country. Durga Singh died intestate leaving behind following legal heirs:

"(i) Chanan Devi(widow)

(ii) Chaman Singh (son)

(iii) Gurdeep Singh (son)

(iv) Puran Singh (son)

(v) Jagdish Singh (son)

(vi) Harjinder Singh (son)

(vii) Kuldip Kaur (daughter)

(viii) Darshan Kaur (daughter)

(ix) Jagdish Kaur (daughter)"

It was further pleaded that Chanan Devi widow of Durga Dass, who had got 1/9th share in the property, expired in 1999 and her share has devolved upon her sons and daughters. However, defendant No. 1 alleged that Smt. Chanan Devi had executed a Will in favour of defendant No. 2. In fact, Chanan Devi died intestate and she had never executed any Will. The share of Chanan Devi is to be divided among all her legal heirs as per Hindu Succession Act. The plaintiffs do not want to keep their shares joint and want to get it partitioned by metes and bounds. Hence, suit was filed.

Defendants No. 1 and 2 resisted the suit and filed written statement taking various preliminary objections. It has been averred that defendants No. 1 and 2 are owners in possession of house No. D-6/684, Abadi Kot Khalsa, Amritsar, on the basis of valid legal Will dated 21.12.1993 (registered on 27.12.1993) executed by deceased-Smt. Chanan Devi wife of Durga Singh in favour of defendant No. 2. In lieu of services rendered by answering defendants, Chanan Devi had executed the Will. Defendant No. 2 is the sole owner in possession of the suit property. Other averments in plaint were denied.

In another suit titled ''Harjinder Singh v. Chaman Singh and another'', it was pleaded that Chanan Devi wife of Durga Singh was owner in possession of the suit property, on the basis of a conveyance deed dated 19.05.1959 though said property stood transferred in her name from 01.10.1955. Out of love and affection, Chanan Devi had executed registered Will qua the suit property on 21.12.1993/27.12.1993 in favour of plaintiff.

Defendants-Chaman Singh and Jagdish Singh resisted the suit and filed written statement. It was pleaded that Chanan Devi was not the owner in possession of the suit property. The alleged conveyance deed dated 19.05.1959 is illegal, null and void as she had no property in Pakistan. In fact, Durga Singh was the owner of the property in question and after his death, all his legal heirs including Chanan Devi became coowners in the property in question. The alleged Will does not bear the thumb impressions of Chanan Devi. Defendants being co-sharers in possession of the suit property, are competent to deal with the same in any manner they like. Other averments in plaint were denied.

On the basis of pleadings of parties in civil suit titled ''Chaman Singh v. Surinder Kaur and another, the Court of first instance framed following issues:

"1. Whether plaintiffs are entitled to the partition of the property in dispute? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiffs are estopped by their own act and conduct from filing the suit? OPD

Relief."

On the basis of pleadings of parties in civil suit titled ''Harjinder Singh v. Chaman Singh and another, the Court of first instance framed following issues:

"1. Whether Smt. Chanan Devi was owner in possession of the property in dispute on the basis of conveyance deed dated 19.05.1959?

Whether Smt. Chanan Devi executed a legal and valid registered Will dated 21.12.1993 with regard to the property in dispute in favour of the plaintiff? OPP

Whether plaintiff is owner in possession of the property in dispute? OPP

Whether the plaintiff is entitled to the declaration as prayed for? OPP

Whether the plaintiff (sic. is entitled) to the permanent injunction as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff has no locus standi or cause of action to file the present suit? OPD

Whether the suit of the plaintiff is bad for nonjoinder of the necessary parties? OPD

Whether the conveyance deed dated, 19.05.1959 is illegal, null and void and is not binding upon the rights of the defendant? OPD

Whether Smt. Chaman Devi was not competent to execute Will dated 21.12.1993 with regard to the property in dispute in favour of the plaintiff? OPD

Relief."

Vide order dated 12.06.2010, both the suits were consolidated. After appreciating the evidence, the Court of first instance dismissed both the suits. Feeling aggrieved, two separate appeals were filed. During the pendency of appeals, Harjinder Singh moved application under Order 1 Rule 10 read with Section 151 CPC for impleading other legal heirs of Chanan Devi which was allowed separately by the lower Appellate Court. Vide common impugned judgment, it has been held by the lower Appellate Court that since application under Order 1 Rule 10 CPC moved by Harjinder Singh for impleading other legal heirs of Chanan Devi has been allowed separately, therefore, newly added defendants have a right to contest the suit. It has also been recorded that even otherwise, learned trial Court was duty bound to decide legality and validity of Will and issue in that respect, on the basis of evidence led by the parties, however, as noted, it did not decide issue of Will on the ground that necessary parties have been left and suit is-not maintainable. The lower Appellate Court has also come to the conclusion that the Court of first instance has rightly held that other legal heirs of Chanan Devi are necessary parties, yet the Court of first instance was required to return its finding on issue No. 2. On these grounds, the lower Appellate Court has remanded the suit titled ''Harjinder Singh v. Chaman Singh and another'' by setting aside the judgment and decree of the court of first instance. It has also been recorded that as the other civil suit titled ''Chaman Singh v. Surinder Kaur and others'' was consolidated and was also decided vide judgment dated 30.09.2010, therefore, it was also remanded. Hence, this regular second appeal.

I have heard learned counsel for the appellant and perused the record.

Learned counsel for the appellant has contended that the impugned judgment and decree is not order of remand as provided under Order XLI Rule 23 CPC, therefore, the same is appealable under Section 100 CPC. Even though, appeal against the order of remand is provided under Order 43 Rule 1(u) of CPC, however, in the peculiar nature of case, regular second appeal is perfectly maintainable.

I have considered the contentions of learned counsel for the appellant.

A specific question was put to learned counsel for the appellant that how second appeal is maintainable under Section 100 CPC against the order of remand passed by the lower Appellate Court, when there is specific provision under Order XLIII and Section 104 of CPC providing for an appeal against an order passed under Rule 23 or 23-A of Order XLI remanding a case. It is specifically provided that an appeal would lie under Section 104 CPC against the order of remand passed by the Appellate Court as provided under Order XLIII Rule 1(u) of CPC. As per Rule 23 of Order XLI, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct particular issue or issues to be tried in the case so remanded, and shall send a copy of its judgment or order to the court from whose decree the appeal is preferred, with directions to re-hear the suit and proceed to determine the suit. The relevant portion of the judgment of the lower Appellate Court is extracted hereunder:

"In view of foregoing discussion, impugned judgment and decree dated 30.09.2010 is set aside. Vide separate order on file of Civil Appeal No. 35 titled as Harjinder Singh v. Chaman Singh'', Gurdip Singh and others have been ordered to be impleaded as parties to the suit. So, they should be summoned and after giving them opportunity to contest the suit, same be decided again, as per law. As vide impugned judgment, civil suit titled as ''Chaman Singh v. Surinder Kaur and others'' was also decided, so, said suit is also remanded back to learned trial Court to decide the same, after hearing learned counsel for parties. Decree sheet be drawn. File of both suits be sent back to learned trial Court and be put up before learned trial Court on 07.10.2010. A copy of this judgment be placed on file civil appeal No. 35 of 2010 titled as Harjinder Singh v. Chaman Singh and others''. Appeal file be consigned."

In Jegannathan Vs. Raju Sigamani and Another, held as under:

"Order 43 of the Code provides for appeals from orders. Clause (u) of Rule 1 Order 43 was amended consequent upon insertion of Rule 23A in Order 41 w.e.f. February 1, 1977. It reads as under: An appeal shall lie from the following orders under the provisions of Section 104, namely:

X X X X

(u) an order under rule 23 or rule 23 A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court;

x x x x x

It is clear from the above provision that an order of remand passed under Order 41 Rule 23A is amenable to appeal under Order 43 Rule 1 (u) of the Code."

In the present case, the case has been remanded primarily on two grounds that issue with regard to Will was not decided and secondly all the necessary parties were not impleaded before court of first instance and application under Order 1 Rule 10 of the Code for impleading L.Rs. of Chanan Devi was allowed by the lower Appellate Court. I am of the view that regular second appeal under Section 100 of CPC is not maintainable against an order of remand passed by the lower Appellate Court and the appellant was required to file an appeal against the order of remand passed by the lower Appellate Court as provided under Order XLIII Rule 1(u) of the CPC. I have no hesitation to hold that instant regular second appeal is not sustainable.

In view of above, instant regular second appeal is dismissed being not maintainable.

Faced with this situation, learned counsel for the appellant submitted that since the other parties have been ordered to be impleaded as necessary parties by the lower Appellate Court and there is no finding with regard to Will by the trial Court, direction may be issued to the trial Court to expedite the trial of the suit. Having considered the above prayer of learned counsel for the appellant, I am of the view that order of impleading the parties may require newly added defendants to file written statement etc. In the peculiar facts and circum stances of the case, this Court deems it fit to direct the trial Court to dispose of the suit in accordance with law early as possible without granting any unnecessary adjournments to the parties who were already before the Court or have been subsequently added.

Disposed of in above terms.