Inderbai And Others vs Dhanna And Another

Rohit Arya, J

This miscellaneous appeal by plaintiffs under Order 43 rule 1(u) CPC is directed against the order dated 10/09/2018 passed in appeal No.28A/2013 by the Additional District Judge, Khachhrod, District Ujjain. The appellate Court exercising the power under Order 41 rule 23A CPC has remanded civil suit No.5A/2012 for retrial by setting aside the judgment and decree dated 30/07/2013 passed by the trial Court.

Facts relevant and necessary for disposal of this appeal lie in narrow compass: The appellants/plaintiffs have field the suit for declaration and injunction in respect of the suit land falling in survey Nos.447, 447/1, 447/2, 448/2 and 448/3 situated in village Khandwa, tehsil Kachhrod inter alia contending that the suit land falling in parts of the aforesaid survey numbers described in paragraph 3 of the judgment of the trial Court have been purchased from the heirs of late Heera by way of registered sale deed dated 24/06/2010 and obtained possession. The suit land had fallen to the share of Heera (since dead) through testamentary succession by virtue of 'will' dated 15/10/1992 executed by his father late Deva son of Seva. The name of Heera was mutated in the revenue record in case No.6-A-6/98-99. After death of Heera, the suit land was mutated in the names of his heirs who have sold the suit land in favour of the plaintiffs. However, Dhanna another son of late Deva made a false complaint before the Collector, Ujjain on 07/07/2010 against mutation in the name of Heera by virtue of the aforesaid 'will' over the suit land seeking change of mutation. The defendant No.1 threatened the plaintiffs for forcible dispossession from the suit land, therefore, a complaint in that behalf was made. Since, no action was taken thereupon, the instant suit has been filed.

Defendant No.1 filed written statement and denied plaint allegations inter alia contending that after death of Deva, the suit property is joint family property and always remained in the name of late Deva; father of Dhanna and Heera. During his life time, Deva had divided the entire property amongst his sons, details whereof are described in paragraph 4 of the judgment of the trial Court. It is denied that late Deva had executed 'will' in favour of Heera. As regards the mutation, it was contended that the order passed by Tehsildar in case No.6-A-6/98-99 on 21/12/1998, an appeal bearing No.14/98-99 was preferred before the Sub Divisional Officer and the same was allowed on 29/08/2001 setting aside the order passed by the Tehsildar with a direction to rehear the case on merits. However, no further details of the proceedings or consequences flowing therefrom are placed on record.

Trial Court framed issued and relevant for the purpose of this appeal are issue Nos.1(a) & (b) quoted below amongst others.

वाद विषय

(अ) क्या ग्राम खण्डवा तहसील खाचरौद जिला उज्जैन मं स्थित वादग्रस्त भूमि सर्वे क्र . 447 रकबा 0.16 हैक्टेयर (अर्थात वर्तमान भूमि सर्वे क्र . 447/1 रकबा 0.11 हैक्टेयर तथा वर्तमान भूमि सर्वे क्र.447/2 रकबा 0.05 हैक्टेयर) एवं वादग्रस्त भूमि सर्वे क्र. 448 रकबा 1.14 हैक्टयेर (अर्थात वर्तमान भूमि सर्वे क्र. 448/1 रकबा 0.32 हैक्टेयर वर्तमान भूमि सर्वे क्र. 448/2 रकबा 0.38 हैक्टेयर एवं वर्तमान भूमि सर्वे क्र. 448/3 रकबा 0. 44 हैक्टेयर) प्रतिवादी क्र. 1 के भाई हीरा का उनके पिता देवा द्वारा हीरा के पक्ष में निष्पादित वसीयतनामा दिनांक 15.10.1992 के आधार पर प्राप्त हुई थी ?

(ब) और यदि हाॅ, ता क्या अपनी मृत्यु के समय उक्त हीरा ही उक्त वादग्रस्त भूमियां का स्वत्वधारी एवं आधिपत्यधारी था ?

The trial Court while dealing with issue Nos.(1)(a) & (b) in paragraphs 6 to 22 with due advertence to the pleadings of the parties has discussed the evidence placed on record, particularly; the evidence of the attesting witness, (P.W.5); Deva son of Naharji. The attesting witness stated to have witnessed execution of 'will' by late Deva son of Seva who has put his signatures thereupon in his presence. Thereafter, he (attesting witness) has signed the instrument witnessing factum of execution of the 'will'. His evidence has withstood in cross-examination.

The trial Court further held that there was no denial of execution of the 'will' by any of the heirs of late Deva or there is any other evidence contrary to the execution of the 'will'. Defendant though alleged that the 'will' is forged and fabricated but, no evidence has been led to substantiate the allegations. As such, the defendant did not discharge the burden of proving that the 'will' is forged and fabricated.

The trial Court has also discussed the evasive written statement with reference to devolution of the suit property upon other sons of late Deva with clarity and precision of the particulars, viz., details of land, apportionment thereof, etc., The trial Court also commented upon inaction on the part of the defendant in the context of revenue proceedings after remand order passed by the Sub Divisional Officer on 29/08/2001(supra).

The other issues were also dealt with on merit, upon due appreciation of the evidence on record.

On appeal, the first appellate Court though has criticized the findings and tried to prick holes in the judgment passed by the trial Court but, has not given reasons, muchless, plausible reasons in law justifying retrial of the suit. Somuch so, in paragraph 15 of the judgment, it has recorded a totally perverse finding that 'will' was not proved ignoring the factum of deposition of P.W.5 Deva son of Naharji. That apart, the first appellate Court has committed illegality while finding fault with the conclusion of the trial Court that the burden of proving alleged 'will' is forged and fabricated document was upon the defendant, as contemplated under section 102 of the Evidence Act. This Court does not agree with the view of the first appellate Court as the same is in ignorance of the settled principle under the aforesaid provision of the Evidence Act. Besides, the first appellate Court neither framed any issue nor specified any such material on record having skipped consideration by the trial Court while answering the issues but, has reversed the findings of the trial Court.

If the appellate Court did not agree with the findings of the trial Court, in all fairness, it ought to have decided the appeal on merits instead of remand as the power should be exercised with care, caution and circumspection, since unwarranted order of remand to prolong the litigation in all fairness should be avoided. The first appellate Court must bear in mind the scope of Order 41 rule 23/23A CPC before exercising the discretionary jurisdiction, nevertheless; the order of remand should not be passed routinely without due advertence of the issues, evidence and findings for justification of retrial.

In absence of patent illegality and perversity in the findings recorded and judgment, the order for re-trial by the appellate Court with hair splitting exercise is not warranted in law. Mere ipse dixit or criticism of analysis of evidence by the trial Court on a disagreement note cannot be a ground for retrial instead, decision on merits is warranted in appeal.

The tenor of the impugned order/judgment can be well understood with the following notable quotation:

"Thinking is difficult, that's why most people judge".

Law as regards the scope and appreciation of jurisdiction conferred upon the appellate Court ordering retrail under Order 41 rule 23/23A CPC is well settled by now.

The Hon'ble Supreme Court in the case of Municipal Corporation, Hyderabad Vs. Sunder Singh (2008) 8 SCC 485 has lucidly and succinctly explained the scope and application of the aforesaid provision, as contained under Order 41 rule 23 CPC with reference to nature of jurisdiction of the appellate Court. Relevant paragraph of the judgment is quoted below:

"18. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. he appellate court cannot shirk its duties."

In the obtaining facts and circumstances and in view of the settled law, the impugned order passed by the first appellate Court suffers from perversity of approach and in excess to jurisdiction conferred under Order 41 rule 23/23A CPC, therefore, not sustainable in the eye of law and the same deserves to be set aside. Hence, this appeal is allowed. The order passed by the first appellate Court is hereby set aside.

The first appellate Court shall decide the appeal on merits after due opportunity of both the parties, expeditiously, in accordance with law.