Shantabai & Others vs Dilipsingh & Another

The appellants/defendants have filed this appeal under Order 43 Rule 1(u) read with Section 104 of the C.P.C. against the order dated 22.6.2016

passed by learned Additional District Judge, Sonkachh, District Dewas in Civil Appeal No.3-A/2014 by which the judgment and decree dated

11.8.2014 passed by the learned Civil Judge, Class-II, Sonkachh has been set aside and the suit has been remanded back to civil judge for deciding

afresh on merit.

The facts of the case, in short are that, the respondent No.1/plaintiff filed the suit seeking multiple reliefs of declaration, permanent injunction and

consequential relief in respect of House No. 74 (old No.65), Ward No.6, M.G. Road, Village Bhaurasa (hereinafter, for short, “the suit houseâ€).

The plaintiff sought declaration of title on the pretext of adverse possession and also challenged the sale-deed No.369 dated 20.4.2010 executed by

defendant No.1 and 2 in favour of defendant No.3 as void against the title of the plaintiff. The plaintiff had also sought the relief of permanent

injunction that the defendants be restrained to interfere into the peaceful possession of the suit house and not to evict him without following due

process of law. The plaintiff had also sought cancellation of the mutation in favour of defendant No.3 by defendant No.4.

According to the plaintiff, the suit house was initially owned by Pannalal S/o. Kanhaiyalal, which was sold on 24.4.1978 by way of auction in

Execution Case No.116/70-71. In the said auction proceedings, one Smt. Mishribai W/o. Devilal purchased the suit house in a sum of Rs.7,500/- and

the sale-deed was executed on 2.12.2002 in her favour. The Nagar Panchayat Parishad, Bhaurasa had also mutated the suit house in the name of

Mishribai.

On 9.5.2002, Mishribai mortgaged the suit house with the mother of the plaintiff viz. Meenabai W/o. Fatehsingh in lieu of loan of Rs.2,000/- with the

condition that on return of the amount of Rs.2,000/-, Meenabai shall handover the vacant possession. A deed on a stamp paper of Rs.7/- was

executed between them. Later on, Mishribai again took a loan of Rs.1,600/- from Meenabai and had executed an agreement on 20.9.1989 and she

agreed to return the amount till 25.2.1990. On 12.4.1990, Mishribai again took a loan of Rs.4,000/- from Meenabai and further mortgaged two rooms

of the suit house. Later on, two more agreements were executed between them but Mishribai did not return the amount and Meenabai continued into

the possession of the suit house as an owner for 28 years and the said continuous and peaceful possession was in the knowledge of Late Mishribai

and Devilal. Meenabai took electric connection and water connection from the Nagar Panchayat, Bhaurasa. That Mishribai has expired on 28.5.2007

without repaying the loan amount to Meenabai. After the death of Mishribai, defendant No.1 and 2 being her legal heirs filed an application for

mutation of their name in the revenue record. Nagar Panchayat, Bhaurasa has mutated their names vide resolution dated 23.3.2010. The plaintiff took

an objection that Meenabai is paying the property tax since last so many years and being her son, he is in possession of the suit house. Thereafter, the

defendants No.1 and 2 have sold the suit house vide registered sale-deed dated 20.4.2010 to defendant No.3, which gave cause of action to the

plaintiff to file the suit. According to the plaintiff, the said sale-deed is bogus and was executed in order to defeat his title. He is in possession of the

suit house as an owner thereof since 9.5.1982, therefore, he is entitled for declaration of title of suit house by way of adverse possession.

After notice, the defendants No. 1 to 3 filed their written statements refuting the averments made in the plaint. The defendants challenged the locus

of the plaintiff as Meenabai is having right to file the suit on the basis of so called mortgage and agreements executed with Late Mishribai. The

defendants have further pleaded that the name of Mishribai was rightly mutated in the record of Nagar Panchayat, Bhaurasa and after her death, their

names were recorded. The status of mother of the plaintiff was of a licencee in the suit house and she had not filed any suit, therefore, the plaintiff is

not entitled to any relief and prayed for dismissal of the suit.

The defendant No.3 has also filed a counter claim claiming the possession of the suit house from the plaintiff on the basis of sale-deed dated

20.4.2010. The plaintiff filed the written statement to the said counter claim.

On the basis of pleadings and the evidence came on record, the learned trial Court has answered all the issues against the plaintiff. The learned trial

Court has held that the plaintiff is not entitled for a decree on the pretext of adverse possession. The trial Court has further observed that neither the

plaintiff nor his mother have filed the suit seeking foreclosure of mortgaged property before any competent Court. The plaintiff is not having any

power of attorney of his mother for filing the suit. Vide judgment and decree dated 11.8.2014 the trial Court has denied the decree to the plaintiff and

allowed the counter claim filed by defendant No.3 by directing the plaintiff to handover the possession of the suit house.

Being aggrieved by dismissal of the suit, the plaintiff filed First Appeal before the Additional District Judge, Sonkachh, District Dewas. During

pendency of the appeal, the plaintiff filed an application under Order 41 Rule 27 of the C.P.C. seeking permission to record the statement of his

mother â€" Meenabai by way of an affidavit under Order 18 Rule 4 of the C.P.C. In the said application it was pleaded that, the mother of the plaintiff

had started living as 'Sevika' in “Radhaswami Sampradaya†at Punjab and now she has come to the Village Bhaurasa on 13.9.2014 and,

therefore, he be permitted to record her statement as same is necessary for adjudication of the suit.

The aforesaid application was opposed by the defendants No.1 to 3. The learned first appellate Court has allowed the application filed by the

plaintiff under Order 41 Rule 27 of the C.P.C. and held that Meenabai is a necessary party in the suit and her statements are also necessary . The

learned first appellate Court vide judgment dated 22.6.2016 has set aside entire the judgment and decree of learned trial Court and remanded the

matter back to the trial Court to decide the suit afresh. The trial Court has also been directed to implead Meenabai as a plaintiff in the suit.

Being aggrieved by the said judgment of learned first appellate Court, the defendants No.1 to 3 have filed the present appeal before this Court.

Shri Sunil Jain, learned senior counsel appearing for the appellants argued that the learned first appellate Court while allowing the application under

Order 41 Rule 27 of the C.P.C. has erred in law in setting aside the entire judgment and decree passed by the learned trial Court. He further

submitted that the learned first appellate Court ought to have decided the appeal on the basis of material available on record. The learned first

appellate Court has failed to exercise the jurisdiction conferred under Order 41 Rule 23 and 23-A of the C.P.C. In support of his contention, he has

placed reliance over the judgment of apex Court in the case of H.P. Vedavyasachar V/s. Shivshankara [SLP (Civil) No.1279/2008 and Murarilal V/s.

Ram Kumar Ojha : 2015(1) MPLJ 243.

Shri Jain ld Sr Counsel further argued that now the plaintiff is trying to fulfill the lacuna of his suit. At the time of filing of the suit, he was aware of

the fact that his mother is alive and she is a necessary party in the suit. No material has been placed in support of the pleadings made in the application

filed under Order 41 Rule 27 of the C.P.C. In the given facts and circumstances the remand was not warrented.

On the other hand, Shri Vyas, learned counsel appearing for the respondent no.1/ plaintiff, defended that the entire suit of the plaintiff is based on

the plea of mortgage-deed of the suit house executed between Mishribai and Meenabai-mother of the plaintiff. The plaintiff is claiming adverse

possession of the suit house being the son of Meenabai who had become owner of the suit house by virtue of the terms and conditions of the

mortgage-deed, therefore, the presence of Meenabai and her statements are necessary in the suit. The learned first appellate Court did not commit

any error while remanding the matter back to the trial Court. In support of his contention, he has placed reliance over the judgment of apex Court in

the case of Richard Lee V/s. Girish Soni : AIR 2017 SC 921, in which it has been held that the Court has a duty to see whether the presence of the

proper parties would facilitate the complete determination of the matter in dispute and in view of the power under Order 1 Rule 10 of the C.P.C., the

Court can exercise suo motu power by directing to implead the additional parties in the suit. In view of the above, the learned counsel for the

respondent prayed for dismissal of the appeal.

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

In case of Purushottam Reddy V/s. Pratap Steels Ltd : (2002) 2 SCC 686, the apex Court has considered the scope of Order 41 Rule 23 and 23-A

of the C.P.C. and has held as under :

“It was a settled position of law before 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section

151 of the CPC to order a remand it such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific

provision of Order 11 of the CPC. In cases where additional evidence is required to be taken in the event of any one of the clause of Sub-rule (1) of

Rule 27 being attracted such additional evidence oral or documentary, is allowed to be produced either before the appellate court itself or by directing

any court subordinate to the appellate court to receive such evidence and send it to the appellate court. In 1976, Rule 23A has been inserted in Order

41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a

preliminary point, and (ii) the decree is reversed in appeal and a retrial is considered necessary. On twin conditions being satisfied, the appellate court

can exercise the same power of remand under Rule 23A as it is under Rule 23. After the amendment all the cases of wholesale remand are covered

by Rule 23 and 23A. In view of the express provisions of these rules, the High Court cannot have recourse to its inherent powers to make a remand.

It is only in exceptional cases where the court may now exercise the power of remand de hors the Rules 23 and 23A.To wit the superior court, if it

finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 11 Rule 31 of the

CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect

valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule

23A or Rule 25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided.â€​

In another case of Municipal Corporation, Hyderabad V/s. Sunder Singh : (2008) 8 SCC 485, the apex Court has again considered the power of

appellate Court in the case of remand. The operative part of the said judgment is reproduced below :

“Before invoking the provision regarding remand of a case by the Appellate Court under Order 41, Rule 23, Civil Procedure Code the conditions

precedent laid down therein must be satisfied. Order 41, Rule 23 would be applicable when a decree has been passed on a preliminary issue. The

appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court

considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the

appellate court. the court should loathe to exercise its power in terms of Or. 41 R. 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. The appellate court cannot shirk its duties.â€​

In case of Murari Lal V/s. Ram Kumar Ojha : 2015 (1) MPLJ 243, this Court has recently considered the scope of Order 41 Rule 23 and 23-A of

the C.P.C. and has held that the appellate Court upon consideration of the pleadings and material brought on record in the event reaches the

conclusion to reverse the findings of the trial Court, then only can apply its mind as to whether the circumstances warrant retrial. Para 11 of the said

judgment is reproduced below :-

“11. The scope and nature of jurisdiction conferred on Appellate Court under Order XLI, Rule 23 and Order XLI Rule 23-A, Civil Procedure Code

are well settled as observed in the opening part of the order. The ingredients of Order XLI, Rule 23-A, Civil Procedure Code are two fold, firstly; the

Appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the

conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant

retrial. Upon fuilment of these two requirements, the provisions of Order XLI, Rule 23, Civil Procedure Code can be applied in the matter of remand

of the case.â€​

In view of the above, it is now well settled that the appellate Court before remanding the suit is required to reverse the finding recorded by the trial

Court in the impugned judgment and decree.

In the present case, the plaintiff approached the Civil Court seeking multiple reliefs for himself. The plaintiff has claimed the title over the suit

house on the basis of his adverse possession. According to the plaintiff, his mother had become the owner of the suit house by virtue of mortgage-

deed executed by Late Mishribai. According to the plaintiff, since his mother has started living as a 'Sevika' in “Radhaswami Sampradaya†and

his father has left the village and he is residing in the suit house since 1982, therefore, he has become the owner thereof by virtue of adverse

possession. The trial Court has framed Issue No.1 asto whether the plaintiff has become owner of the suit house by virtue of adverse possession and

the sale-deed dated 20.4.2010 is void and against the interest of plaintiff ? The learned trial Court vide judgment and decree dated 11.8.2014 has

denied the decree of adverse possession to the plaintiff without examining the conditions of the mortgage deeds. Since the plaintiff filed the suit

independently claiming the relief for himself, therefore, the trial Court did not examine the conditions of mortgage-deed executed between Meenabai

and Late Mishribai and right and titile of mother of plaintiff Meenabai, but aonly observed that Meenabai was inducted in the suit house with the

permission of Mishribai by virtue of mortgage-deed, therefore, the trial Court has examined the case and the relief of plaintiff independently and

denied him the decree of title by way of adverse possession. If Meena bai is inducted as plaintiff then entire nature of the suit would changed .

As per requirement of Rule 23-A of Order 41, the first appellate Court is required to reverse the finding recorded by the trial Court, but in the

present case, the appellate Court did not reverse the finding in respect of denial of relief of adverse possession, therefore, the remand order was not

warranted as held by the apex Court as well as by this Court in the aforesaid cases.

While remanding the case, the first appellate Court has also observed that the Civil Court has wrongly allowed the counter claim filed by defendant

No.3 because the plaintiff has raised the issue of limitation. As per Para 13 of the plaint, the cause of action accrued in favour of the plaintiff to file

the suit only after execution of the sale-deed dated 20.4.2010 in favour of the defendant No.3. The plaintiff filed the suit on 29.6.2010. The defendant

No.3 filed the counter claim on 3.11.2011 claiming possession from the plaintiff on the basis of sale-deed dated 20.4.2010. Therefore, the counter

claim is within limitation and this fact could have been examined by the first appellate Court itself and for which, the remand is not warranted. The

pleadings in the plaint as well as in the written statement are sufficient to decide the issue of limitation without there being any evidence on said issue.

As per contentions of the plaintiff, his mother is now residing in Village Bhaurasa and if she is having any claim against the defendants based on the

mortgage-deed, she is free to file a suit independently against them and she is not required to be impleaded

in the present suit. In the present suit, the pleadings are restricted only in respect of claim made by the plaintiff.

In view of the foregoing discussion, in the opinion of this Court, the impugned order dated 22.6.2016 deserves to be and is hereby set aside and the

matter is remanded back to the first appellate Court to decide the same in view of the law laid down by the apex Court as well as by this Court, as

mentioned above.

No order as to costs.