Pawan Agrawal vs Manohar Patel

The appellant/defendant has preferred this Miscellaneous Appeal under Order 43 Rule 1(u) of the C.P.C. against the order dated 07.01.2020 passed in Civil Appeal No. 10A/2019 by the Additional District Judge, Pathalgaon arising out of the order dated 27.06.2018 passed in Civil Suit No. 5A/2014. The learned first appellate Court while remanding back the matter to the Civil Court has allowed application under Order 1 Rule 10 CPC for impleadment of necessary party, application under Order 26 Rule 9,10,18 CPC for spot inspection and application under order 41 Rule 27 CPC for filing additional documents and remanded back the matter to the learned trial court with direction to implead the purchasers of land from original owner Bhojram, examine their sale deeds including the sale deeds of the vendors of the defendant namely Deendayal and Lilambar and also allow the newly added defendants to file written statement, lead evidence and after getting spot inspection from the Tahsildar Pathalgaon decide the case afresh.

For convenience plaintiffs and defendants are termed as it exists before the learned trial Court.

The brief facts as reflected from the plaint’s averments are that the plaintiffs filed a civil suit before the learned Civil Judge, Class II, Pathalgaon against the defendant which was registered as civil suit No. 5A/2014 on 22/02/2014 for declaration of title, possession of the land bearing Khasra No. 246/5 area 1.178 Hecatares described in the Schedule-A of the plaint mainly contending that the suit property was purchased by them vide registered sale deed dated 04/07/1987 from the original owner Bhojram and they are in possession of the part of the suit property mentioned with red ink in the Schedule-A of the Plaint. The defendant has tried to dispossess the plaintiffs on 08/02/2013 by digging pit and a wrong panchnama was prepared by the Revenue Inspector on 14/02/2013 wherein the land was shown as the land belongs to defendant, therefore, the plaintiffs did not sign it.

It has been further contended that the plaintiffs initially approached the Tahsildar, Pathalgaon and in Revenue Case no. 01/A-6/2010-2011 got the order of Map corrected vide order dated 18/10/2010. Thereafter, they have preferred an appeal before the SDO, Pathalgaon who has set aside the order on 12/08/2011 passed by the Tahsildar. In view of wrong map prepared by Revenue Inspector on 12/10/2010 the defendant is claiming possession over the suit property which has necessitated the plaintiffs to file suit for declaration, possession and grant of permanent injunction.

The defendant filed written statement denying the allegation made in the plaint mainly contending that the plaintiffs have purchased the suit property on 04.07.1987 and has taken possession over the suit property. It has been contended that in the revenue case the defendant was necessary party but he has not been arrayed as party to the case, as such the order dated 18.10.2020 passed by the Tahsildar, Paththalgaon is void ab intio. It has also been contended that the defendant has never dug the pit in the land of the plaintiffs and would pray for dismissal of the suit. It has also been contended that there is no dispute regarding the land belonging to plaintiffs and defendant. The suit land bearing Khasra No 246/5 area 1.178 Ha belongs to plaintiffs and land bearing Khasra No. 246/3Kha area 0.222 Ha and land bearing Khasra No. 246/4 Kha area 0.222 Ha in village Palidihi Tah Pathalgaon belong to defendant. It has also been contended that there is no dispute regarding ownership of respective Khasras but the dispute is purely of correction of Map to ascertain which portion of Khasra No. 246 belongs to which party as such also the suit is not maintainable in view of Section 257(F) of the Chhattisgarh Land Revenue Code. It has also been contended that the proceedings for eviction under Section 250 of the CG Land Revenue Code,1959 (CGLRC) is also pending before the Tahsildar, as such, also the suit is not maintainable. The defendant has also prayed for stay of the proceeding of the civil suit in view of Section 10 of the CPC and would pray for dismissal of the suit.

The learned trial Court on the pleadings of the parties framed as many as 5 issues and on appreciation of oral and documentary evidence available on record dismissed the suit vide judgment dated 27/06/2018 holding that there is no dispute with regard to title of Khasra No. 246/5 area 1.178 Hectare. Learned trial Court has also recorded its finding that the plaintiffs failed to prove that the Red Ink Area in the schedule-A of the plaint is the area of Khasra No. 246/5 area 1.178 Hectares and the proceedings for correction of Map is still pending, as such suit for title and possession is not maintainable. Aggrieved with the judgment dated 27.06.2018, the plaintiffs preferred Appeal vide Civil Appeal No. 10A/2019 before the learned Additional District Judge, Pathalgaon, District Jashpur on 27/07/2018. The plaintiffs during the pendency of the First Appeal filed four interlocutory applications namely :-

(I) I.A. No. 01/2019 under Order 6 Rule 17 CPC. Through this application the plaintiffs sought to convert the suit for declaration of title and possession to suit for recovery of possession from the defendant. The plaintiffs have also sought to challenge the sale deed dated 19/12/2005 of the defendant Pawan Agrawal stating inter alia that the vendors of the defendant namely Lilambar and Deendayal were not competent to sell and has prayed for declaration that sale deed executed in favour of the defendant Pawan Agrawal, Lilambar and Deendayal are not binding upon the plaintiffs.

(ii) I.A. No. 02/2019 under Order 01 Rule 10 CPC: The plaintiffs sought to implead the persons who are original seller and purchaser of lands including Lilambar and Deendayal for the reason that they have received oral information from the Patwari that some lands are deficit in the Khasra No. 246.

(ii) IA No. 03/2019 Under Order 41 Rule 27 CPC: The plaintiffs sought to file additional documents i.e. the copies of sale deeds executed by original owner of Khasra No. 246 namely Bhojram.

(iv) IA No. 04/2019 Under Order 26 Rule 9,10,18 CPC by which the plaintiffs have prayed for spot inspection to ascertain which lands is in possession of plaintiffs or defendant.

On 07/01/2020 the learned First Appellate Court has allowed 03 applications out of aforesaid 04 applications. Learned First Appellate Court allowed the application under Order 1 Rule 10 CPC and directed to implead Lilambar and Deendayal as defendants by recording its finding that for deciding the plaintiffs title it is necessary that purchaser of Khasra No. 246 be impleaded as party to the suit. Learned First Appellate Court while allowing the application under Order 26 Rule 9, 10, 18 CPC has recorded its finding that after spot inspection only the demarcation of the property is possible, accordingly it has allowed the application. Learned First Appellate Court while allowing the application under Order 41 Rule 27 of the CPC has recorded its finding that with regard to obtain details of the purchasers of Khasra No. 246 the additional documents have to be taken on record as they are relevant for deciding the suit. But learned First Appellate Court has rejected the application for amendment in the plaint. The learned First Appellate Court since allowed these three applications has remanded the matter for deciding the suit afresh giving proper opportunities to the parties including filing of written statement by newly added defendants. These orders are being assailed by the defendant by filing the present appeal.

Learned counsel for the appellant would submit that the learned first appellate court has erred in law in permitting the plaintiffs to totally change the nature of suit from declaration of title and confirmation of possession to cancellation of sale deed and recovery of possession in the garb of impleadment under Order 1 Rule 10 CPC. The documents which were in the knowledge of the plaintiffs were not presented before the trial court have been allowed to be taken on record without considering as to whether such documents fulfill the necessary requirements under Order 41 Rule 27 CPC. The learned appellate court has also erred in law in appointing Tahsildar Pathalgaon as Commissioner under Order 26 Rule 9,10,18 CPC without considering the fact that the Tahsildar is already in seisin of the case in the Map Correction Proceedings. He would further submit that none of the issues can be decided just by mere spot inspection as directed by the learned first appellate court under Order 26 Rule 9,10,18 CPC as such the learned First Appellate Court has committed illegality in remanding the matter. He would further submit that remand order is one under Order 41 Rule 23A CPC because the learned appellate court has remanded the case not on preliminary issue of jurisdiction or any bar of law (Order 14 Rule 2 CPC) but has directed for a complete de-novo trial which is without any such contingencies as provided under Order 41 Rule 23A of the CPC. Therefore, would pray for quashment of the impugned order dated 07.01.2020. To substantiate his submission he would rely on judgment passed by the Hon'ble Supreme Court in the case of Kasturi v. Iyyamperumal, (2005) 6 SCC 733 , the case of Sathyanath v. Sarojamani, (2022) 7 SCC 644, the case of Syeda Rahimunnisa v. Malan Bi, (2016) 10 SCC 315, the case of Shivakumar v. Sharanabasappa, reported vide (2021) 11 SCC 277, the case of Jegannathan v. Raju Sigamani, (2012) 5 SCC 540, the case of Municipal Corporation Hyderabad v. Sunder Singh (2008) 8 SCC 485, in the case of Sirajudheen v. Zeenath and Ors. 2023 SCConline SC 196, the case of Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638 and judgment of this Court in Kanhaiyalal vs. Smt. Lajwanti Devi and Others (2008) 2 CGLJ 313 and Anish Fularavs. Devcharan (2014) 2 CGLJ 2. He would further pray that the remand order made by the First Appellate Court may kindly be set aside and the plaintiffs be relegated to the alternative competent and efficacious forum under the CGLRC to get his land demarcated and then raise a dispute if any other person or persons are encroaching his land.

On the other hand, learned counsel for the plaintiffs would submit that the learned First Appellate Court has not committed any illegality which warrants interference by this Court as the learned Court below has recorded its finding while deciding the application under Order 1 Rule 10 C.P.C. that Deendayal and Lilambar are necessary party who can assist the Court for deciding the lis between the parties as they are original purchasers of the suit land bearing Khasra No. 246 which subsequently divided in various Khasra numbers. It has also been contended that the learned First Appellate Court has not committed any illegality in allowing the application under Order 26 Rule 9,10,18 of the C.P.C. as without assistance of spot inspection the identification of the suit property is not possible which is root cause of the case. Similarly, he would submit that learned First Appellate Court has not committed any illegality in allowing the application under Order 41 Rule 27 of the C.P.C. as the documents sought to be taken on record are relevant and it is also well settled position of law that for taking additional documents on record, the relevancy of the documents has to be given due consideration and without examining it whether the court can decide the case properly or not and the filing of the documents at the belated stage is always not fatal, thus, he would pray for dismissal of the appeal and would pray for early disposal of the suit by the learned trial Court.

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

From the submission made by the parties the following points emerge for determination of this Court:-

a. Whether learned First Appellate Court was justified in remanding the matter by allowing the application under Order 1 Rule 10, Order 41 Rule 27 and Order 26 Rule 9,10, 18 CPC?

b. Whether the remand on impleading the purchaser will be treated as preliminary issue or not by exercising the power by learned First Appellate Court under Order 41 Rule 23 CPC?

To determine aforesaid points it is relevant for this Court to consider the relevant provisions of Section 99 of CPC, Order 41 Rule 23, Rule 23-A and Rule 25 of CPC which reads as under:-

“Section 99 of CPC. No decree shall be reversed or “substantially varied, nor shall any case be remanded in appeal on account of any mis-joinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.

Provided that nothing in this section shall apply to non-joinder of a necessary party.

Order 41 Rule 23 of CPC:- Remand of case by Appellate Court. Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Order 41 Rule 23-A of CPC:- Remand in other cases.

Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23.

Order 41 Rule 25 of CPC:- Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.

On perusal of the relevant provisions, it is quite vivid that as per Section 99, the decree, if any, passed by the trial Court shall not be reversed or substantially varied nor the case shall be remanded in appeal merely due to misjoinder or non-joinder of the parties or causes of action or any error, defect or irregularity in any proceedings in the suit not effecting the merit of the case or jurisdiction of the court. But the proviso puts an embargo to the applicability of the provisions of Section 99, in case of non-joinder of “necessary” party found by the Court. Thus it is clear, due to non-joinder of “necessary” party, in view of proviso, aid of Section 99 CPC would not be available to the appellant. The lower Appellate Court recorded the findings that purchaser of the Khasra No. 246 are “necessary party” to the suit as in their presence the demarcation can be properly done and recorded its finding that in absence of them demarcation of land cannot be done properly.

On perusal of the impugned judgment and facts of the case, it is not in dispute that the Judgment of remand passed by the learned Lower Appellate Court is in exercise of the power under Rule 23 A of the Order 41 of the CPC with the aid of Proviso to Section 99 of CPC, therefore, to the said extent it may be seen such remand is in conformity with law and is permissible.

The Hon’ble Supreme Court in case of Jegannathan vs. Raju Sigamani & Another {(2012) 5 SCC 540} has considered the power of remand by the appellate court and has held at para 7 to 9:-

“7. Order 41 Rule 23A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the appellate Court may remand the suit to the trial Court even though such suit has been disposed of on merits. It provides that where the trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the appellate Court considers that retrial is necessary, the appellate Court may remand the suit to the trial Court.

Insofar as Order 41 Rule 25 of the Code is concerned, the appellate Court continues to be in seisin of the matter; it calls upon the trial Court to record the finding on some issue or issues and send that finding to the appellate Court. The power under Order 41 Rule 25 is invoked by the appellate Court where it holds that the trial Court that passed the decree omitted to frame or try any issue or determine any question of fact essential to decide the matter finally. The appellate Court while remitting some issue or issues, may direct the trial Court to take additional evidence on such issue/s.

So far as the present case is concerned, the trial Court had disposed of the suit on merits and not on a preliminary issue. The first appellate Court set aside the judgment and decree of the trial Court and directed the trial Court to decide the suit afresh after giving parties an opportunity to lead evidence - oral as well as documentary. The nature of the order passed by the appellate Court leaves no manner of doubt that such order has been passed by the appellate Court in exercise of its power under Order 41 Rule 23A of the Code.”

Again the Hon’ble Supreme Court in 2008 (12) SCC 372 in case of Bachahan Devi & Another vs. Nagar Nigam, Gorakhpur & Another has held in paragraph 10 to 12 as under:-

“10. Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essential for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take additional evidence required. The order of remand should not be passed as a matter of routine. The First Appellate Court which has the power to analyse the factual position can decide the issue and the additional issues. In the instant case the First Appellate Court, inter alia, observed as follows:

"As such, it would not be proper for the first Appellate Court in such matter to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present matter under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present matter also the Appellate Court has framed 6 additional issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings relating to said legal and factual issues after itself recording (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable in the present matter."

A bare reading of the provision makes it clear that the same comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon the merits. In order to bring in application of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omitted to frame issues and/or has failed to determine any question of fact which in the opinion of the appellate court are essential for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further question that arises is whether in such a case the appellate court is bound to direct the trial court to take additional evidence required. This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes operative when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take additional evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where additional evidence may not be required. But where the additional evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons therefor.

Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omitted to frame or try any issue or to determine any question of fact material for the right decision of the suit on merits. It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of the first instance. This position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa2, where it was inter-alia observed in para 5 as follows:

"We consider that when a finding is called for on the basis of certain issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul3.”

Again the Hon’ble Supreme Court reported in 2016 (10) SCC 315 in case of Syeda Rahimunnisa vs. Malan Bi (Dead) By Legal Representatives & Another has held in paragraph 36 as under:-

“36. 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 41 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 41 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 Court as to why the remand order in these cases is called for and if so under which Rule of Order 41 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.”

Now coming to the facts of the case and judgment referred to by the learned counsel for the appellant Hon'ble Supreme Court in case of Sunder Singh (Supra) has held that unless the conditions precedent thereof for remand appellate court should not exercise its power under Order 41 Rule 23 of the CPC as scope of remand in terms of Order 41 Rule 23 is extremely limited. The learned First Appellate Court while remanding the suit has given reasons first of all by allowing various applications as detailed in foregoing paragraphs, as such there was sufficient materials for the first Appellate Court to remand the matter. The submission made by the learned counsel for the appellant documents under Order 41 Rule 27 CPC should not have been allowed as there is delay in filing the same. It is well settled position of law that while allowing the applications under Order 41 Rule 27 the relevancy of the documents should have been seen by the learned First Appellate Court and whether in absence of these documents the Court can decide the suit properly or not. The learned First Appellate Court while allowing the application has recorded its finding that since demarcation of the property is in question which can be properly determined in presence of the purchaser of the land Khasra No. 246 as the suit land has been divided from the original Khasra No. 246 and the purchaser of land can only throw light which portion of land has been sold to the plaintiffs and defendant. Thus, there was justifiable reason for the learned Appellate Court to take additional documents on record by taking all the sale deeds on record. Thus, the findings given by the learned First Appellate Court are in accordance with law laid down by the Hon’ble Supreme Court in case of Sanjay Kumar Singh vs The State of Jharkhand {Civil Appeal No. 1760 of 2022 decided on 10.03.2022)

“4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”

It is pertinent to mention here that since the documents have been taken on record by the learned First Appellate Court unless and until same is proved by recording the evidence, it has no significance, as such also remand is necessary.

Similarly while allowing the application under Order 26 Rule 9, 10, 18 of the CPC it has recorded its finding that the demarcation of land is in dispute which can be very well decided by spot inspection as there is dispute with regard to identification of the property. This finding is in conformity with the law laid down by the Hon’ble Supreme Court Haryana waqf Board vs. Shanti Sarup and Others {(2008) 8 SCC 671} wherein the Hon’ble Supreme Court has held as under :-

Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 of the CPC.

The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorized possession in respect of the suit land by them as per paragraph 3 of the plaint. But the only controversy between the parties was regarding demarcation of the suit land because land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.

It is also not in dispute that even before the appellate court, the appellant-Board had filed an application for appointment of a Local Commissioner for demarcation of the suit land. In our view, this aspect of the matter was not at all gone into by the High Court while dismissing the second appeal summarily. The High Court ought to have considered whether in view of thenature of dispute and in the facts of the present case, whether the Local Commissioner should be appointed for the purpose of demarcation in respect of the suit land.

The further contention of the appellant that the demarcation proceedings are pending before the Tahsildar Paththalgaon and he has been directed to be appointed as Commissioner this will prejudice the Commissioner, as such the Tahsildar should not be appointed as Commissioner. This submission is far away from truth merely on apprehension which cannot be accepted as the Commissioner can be very well cross examined by the defendant or plaintiffs before the trial Court as per provisions of Order 26 Rule 10 CPC and true and correct fact can very well be brought on record, thus, this submission is deserved to be rejected, accordingly it is rejected.

Similarly, the learned First Appellate Court while allowing the application under Order 1 Rule 10 CPC has recorded its finding that since original purchaser Bhojram Patel and his wife have already expired as such the purchaser Deendayal and Lilamber are necessary party to the case as demarcation can be done properly in their presence only. To appreciate the validity of order passed in the application filed under Order 1 Rule 10 CPC it is expedient for this Court to extract the provisions of Order 1 Rule 10 CPC which reads as under :-

(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copes of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

From bare perusal of the aforesaid provisions of Order 1 Rule 10 of the CPC, it is quite vivid that for considering the application under Order 1 Rule 10 CPC to implead as a necessary party five tests / factors have to be considered they are as under:-

(1) If, for the adjudication of the "real controversy" between the parties on record, the presence of a third party is necessary, then he can be impleaded;

(2) It is imperative to note that by such impleading of the proposed party, all controversies arising in the suit and all issues arising thereunder may be finally determined and set at rest, thereby avoiding multiplicity of suits over a subject-matter which could still have been decided in the pending suit itself;

(3) The proposed party must have a defined, subsisting, direct and substantive interest in the litigation which interest is either legal or equitable and which right is cognisable in law;

(4) Meticulous care should be taken to avoid the adding of a party when the addition is intended merely as a ruse to ventilate certain other grievances of one or the other of the parties on record which is neither necessary or expedient to be considered by the Court in the pending litigation; and

(5) It should always be remembered that considerable prejudice would be caused to the opposite party when irrelevant matters are allowed to be considered by Courts by adding a new party whose interest has no nexus to the subject-matter of the suit."

The provisions of Order 1 Rule 10 CPC has come up for consideration before the Hon'ble Supreme Court in case of Mumbai International Airport Private Limited vs Regency Convention Centre and Hostels Private Ltd. And Other { 2010 (7) SCC 417 } wherein the Hon'ble Supreme Court has held as under:-

Let us consider the scope and ambit of Order I of Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo moto or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act according to reason and fair play and not according to whims and caprice.

Again in case of Pankajbhai Rameshbhai Zalavadiya vs Jethabhai Kalabhai Zalavadiya { 2017 (9) SCC 700} Hon’ble Supreme Court has held as under:- para 10

Order 1 Rule 10 of the Code enables the Court to add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Order 1 Rule 10 of the Code empowers the Court to substitute a party in the suit who is a wrong person with a right person. If the Court is satisfied that the suit has been instituted through a bona fide mistake, and also that it is necessary for the determination of the real matter in controversy to substitute a party in the suit, it may direct it to be done. When the Court finds that in the absence of the persons sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely settled, the Court would do justice by impleading such persons. Order 1 Rule 10(2) of the Code gives wide discretion to the Court to deal with such a situation which may result in prejudicing the interests of the affected party if not impleaded in the suit, and where the impleadment of the said party is necessary and vital for the decision of the suit.

From the above stated factual and legal position it is quite vivid that the learned appellate Court has not committed any illegality in allowing the application under Order 1 Rule 10 CPC as Lilambar and Deendayal, original purchasers of Khasra No. 246 who can highlight the subsequent division of the Khasra number and details of the boundary which are required for deciding the lis between the parties.

Learned counsel for the appellant would submit that remand order merely on allowing interlocutory applications will be mixed questions of facts and law which is impermissible because remand can only be made on pure question of law and there is no condition required before passing remand order is available on record. He would further submit that impleading the purchasers as necessary party will fall within the ambit of preliminary issues which are not the power conferred upon the appellate Court. He would further submit that once there is sufficient material on record to dispose off the appeal the learned First Appellate Court in place of remand should have decided the appeal on merits itself these submissions are incorrect submission of facts as learned First Appellate Court while remanding the matter has itself recorded its finding that the original purchasers of the land Lilambar and Deendayal are necessary party as they can very well throw light on the issue which land is sold to which persons. The reasons assigned by the learned First Appellate Court can very well resolve the dispute. Similarly the learned first Appellate Court has elaborately considered the materials and thereafter allowed for spot inspection by commission which cannot be said to be illegal. Thus, the submission made by the learned counsel for the appellant deserves to be repealed and accordingly it is rejected.

In light of the above discussion and considering the law on the subject evidence brought on record, I do not find any irregularity or illegality in the orders passed by the learned First Appellate Court as such issue No. 1 framed by this Court is answered in favour of the plaintiffs and so far as issue No. 2 is concerned it is held that the learned First Appellate Court has not remanded the matter on preliminary issue but after analyzing the factual and legal matrix recorded its finding that Deendayal and Lilambar necessary party and as per proviso to Section 99 of the CPC it can very well remand back the matter, thus the learned First Appellate Court has not remanded the matter under Order 41 Rule 23 of the CPC but it has remanded the matter under Oder 41 Rule 23 A CPC which cannot be found faulty. Accordingly issue No. 2 is also answered in favour of the plaintiffs.

Accordingly the appeal is dismissed. As the suit is pending since 2014 and about 10 years have already been lapsed, it is directed that the learned Trial Court will make endeavour to complete the trial within an outer limit of one year and six months from the date of appearance before the trial Court and will proceed as per directions given by the learned First Appellate Court in the order of remand. The parties are directed to appear before the trial Court on 28th March, 2024 and thereafter learned trial Court will issue notice to newly added respondents.

A decree be drawn up accordingly. The interim order passed by this Court on 05.08.2020 is vacated.