Radhe Shyam Sharma vs Arun Sharma, son of Late Gopi Nath Sharma

Gautam Kumar Choudhary, J

Defendant Nos.1 and 2 are in appeal against the order of remand under Order XLI Rule 23 of the CPC by which the judgment and decree passed by the trial Court has been set aside in Civil Appeal No. 07 of 2019 and the matter was remanded to the trial Court for passing order afresh.

Plaintiff/respondent filed the suit for partition impleading his brothers namely, Radhey Shyam Sharma, Amar Nath Sharma and sisters namely Pushpa Devi Sharma, Yamuna Devi Sharma for 1/5th share in the schedule property.

Yamuna Devi Sharma died and her heirs and descendants were impleaded in the suit in terms of Order I Rule 10 of the CPC as necessary parties.

Further, Pushpa Devi Sharma as well as the heirs and descendants of Yamuna Devi Sharma jointly filed a declaration before the trial Court by way of an affidavit, thereby relinquishing their claims in the suit property.

Considering the said affidavit, learned trial Court decreed the suit of the plaintiff for 1/3rd share under Order XII Rule 6 of the CPC.

Against the judgment and the decree, the plaintiff filed an appeal which has been remanded, inter alia, on the ground that : -

“From perusal of plaint and written statement, it is clear that the contents of the plaint has not been completely admitted in the written statement filed by Defendant No.1 adopted by Defendant No.2 and relinquishment of Defendant No.3 without any written statement and the heirs of Defendant No.4 i.e. 4(a) to 4(f) has also not filed any written statement with intention of relinquishment of their share. There is no compromise between the parties relating to their share in partition and no consent has been given by the plaintiffs regarding the admission of facts by the defendants. The relinquishment of share by Defendant nos. 4(a) to 4(f) in favour of plaintiff and defendant nos. 1 and 2 is not legally done and is in improper. The judgment filed by the defendants does not apply in this case. The spirit of Order XII Rule 6 enacted by legislature i.e. should be only exercised when there is specific, clear and categorical admission of facts which is highly missing in this case. The dispute regarding the movable and immovable properties mentioned in Schedule-VI still persist so, there is no complete admission of facts and as such the suit cannot be disposed of under the provision of Order XII Rule 6. There is gross irregularity in the judgment passed by the Lower Court and there is misconception of fact. Hence, the judgment and decree passed by Learned Lower Court is hereby set aside and the appeal is remanded back under Order 41 Rule 23 CPC.”

It is argued by learned counsel for the appellants that it is a strange case where the plaintiff files a Partition Suit for getting 1/5th share and the same has been decreed for 1/3rd share as two of his sisters relinquished their claims over the suit property. Still the plaintiff preferred the appeal before the District Judge assailing the judgment, wherein the judgment of the trial Court has been set aside and the matter has been remanded back to the trial Court. This was impermissible as he cannot be said to be an aggrieved party as he has got more than what he has prayed for in the said Original Suit.

It is further argued that the heirs and descendants of the sisters at no point of time have raised any objection to relinquish rather they moved this Court against the order of remand. Despite this, the learned First Appellate Court instead of dismissing the appeal has set aside the judgment and decree and further remanded it to the learned trial Court to be decided afresh.

It is argued by the learned counsel on behalf of the Plaintiff/Respondent that sisters of the plaintiff had not filed any written statement, therefore mere filing of affidavit by their heirs cannot be said to be admission in terms of Order XII Rule 6 of the CPC. Further, decree on admission is not with respect Schedule No.VI of the Plaint, which ought to have been decided which included the movable properties and land in Rajasthan and Bangladesh.

Having considered the submissions advanced, I do not find any infirmity in the impugned order for the following reasons: -

Firstly, the plaintiff had filed the suit for 1/5th share of the property at Chandil and he got 1/3rd share. When the party is not aggrieved, an appeal will not lie at his instance. It has been held in Thammanna v. K. Veera Reddy, (1980) 4 SCC 62

Section 116-C of the Act makes the Code of Civil Procedure applicable to the hearing and determination of appeals filed under the Act. Since the substance and principle embodied in Section 96(1) of the Code is not inconsistent with anything in the Act, we may legitimately look for guidance to Section 96(1) and other provisions of the Code and also the general principles which govern the right of appeal thereunder. This being the position, the basic conditions and postulates which govern the right of appeal under Section 96(1) of the Code will apply to an appeal under Section 116-C of the Act, also. As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116-C, all the conditions mentioned below, must be satisfied:

(1) that the subject-matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition,

(2) that the person seeking to appeal has been a party in the election petition, and

(3) that he is a “person aggrieved”, that is a party who has been adversely affected by the determination.

Secondly, the trial Court has rightly held in its order dated 04.01.2019, no details of property was furnished with respect to Schedule-VI property. In the absence of any detail, no effective decree could have been passed with respect to it particularly when relief prayed for is confined to the property at Chandil.

Thirdly, too technical views cannot be taken in the facts of the case. Written statement was not filed by the sisters of the plaintiff, who were impleaded as defendant nos. 3 & 4. The fact of the matter is that their heirs sworn affidavit regarding relinquishment of their share and had not appealed against the impugned order. They have also joined as petitioners opposing the impugned order of remand passed by the learned first appellate Court.

Under the aforesaid facts and circumstance of the case, impugned order is set aside.

Miscellaneous Appeal is allowed. Pending Interlocutory Application, if any, is disposed of.