Smt. Jani Bai and 5 others vs Ram Krishna and another

Hon. M.A. Siddiqui, J.—This Misc. Appeal, u/s 104 read with Order 43 Rule 1(V) of the CPC (hereinafter referred to as '' C.P.C.'' for short), has been preferred by the appellants against the order dated 14.3.2005 passed by Additional District Judge, Multai, District Betul in Civil Appeal No. 4-A/04, in which the case has been remanded back after setting aside the judgment and decree dated 23.1.2004 passed by Civil Judge, Class-I Multai, District Betul in regular Civil Suit No. 168-A/94 whereby counter case was also dismissed and the matter was remanded back for afresh trial and decision. There was no dispute that respondent/plaintiff Ramkrishan is son of late Mahadeo through his first wife Saraswati Bai (since dead) and appellant No. 2 to 6 are issues of Mahadeo through his second wife appellant No. 1 Jani Bai. She remained in possession of the house of ancestor property of Mahadeo.

In nut shell, the facts of the case are that the suit was brought by respondent/plaintiff Ramkrishan for declaration of title and injunction over the suit land/house innumerated in para 1 of the plaint on the ground that Mahadeo was the sole owner who got this property in partition with his other brothers. Mahadeo firstly entered in marriage with Saraswati Bai from whom Ram Krishan the plaintiff/respondent begotten. During subsisting first marriage, Mahadeo kept Jani Bai appellant no. 1 as concubine through whom appellants No. 2 to 6 are born hence they are not legitimate children and Jani Bai was also not entitled to get share in the property of Mahadeo being concubine. Anyhow, the appellants got their names recorded in the Revenue record after death of Mahadeo and, therefore, they are trying to interfere with possession of plaintiff hence the suit was brought for declaration and injunction.

The appellants/defendants by denying the facts stated in the plaint also filed a counter claim and took plea that since the plaintiff/respondent Ramkrishan was only two months'' of age, his mother Saraswati Bai, as per social custom, was divorced by Mahadeo, then respondent/plaintiff was taken by his mother from custody of Mahadeo to her patrernal house situated in Gujarmal, where he was brought up and maintained. After dissolution of matrimonial tie with Sarasati Bai, Mahadeo as per caste custom re-married with Jani Bai appellant no. 1 in form of Pat-marriage. Out of their wedlock, appellants no. 2 to 6 were born and thus they are legitimate child of Mahadeo and they entitled to inherit the property. After death of Mahadeo appellants are in possession of the suit property. If there was any title of the plaintiff that has already extinguished on the ground of adverse possession right and his claim was came to an end. More over the land bearing Khasra No. 424 was bequeathed by Mahadeo to appellant/defendant Meera Bai who got her name mutated in the revenue record within the knowledge of respondent/plaintiff as the suit was not brought within three years'' so it was barred by time and claim case was filed.

Learned trial Court on 23.1.2004 dismissed the suit of plaintiff on the ground that though the appellants are entitled to get share but the suit was not brought for partition hence the case was not maintainable. As far as, will about Khasra No. 424, total area 1.157 hectare, out of which, 0.656 hectare is given to Meera Bai through will. Hence the suit was time barred as suit was not brought within three years from the date of enforcement of the will. The suit was dismissed and counter claim of Meera Bai was allowed and she was declared owner as per will. The suit as well as counter claim of respondent/plaintiff was dismissed against which this appeal was preferred which was registered as Civil Appeal No. 4-A/04 and dismissed on 14.3.2005 by Additional District Judge, Multai district Betul by setting aside the judgment and decree of trial Court dated 23.1.2004 and remanded the case for retrial to the trial Court against which this appeal has been preferred on the ground that learned appellate court was erred in remanding the case and did not care that about more than 19 years have already passed from the institution of the suit. Learned appellate court failed to take into account that nothing was left over and no afresh evidence was ever required as full evidence has been produced by both sides. It ought to have been decided by the appellate Court and it failed to decide its vested jurisdiction according to the provision of Section 107(2) of CPC which empowered the appellate Court to exercise same duties which are conferred and imposed on the trial Court by the C.P.C. Had this provision been taken into consideration, the first appellate Court could have decided the matter either this way or that way instead remanding the case causing there by prejudice to the appellants/defendants as well as miscarriage of justice. There was no need of setting aside the judgment and decree of trial Court and there was no ground of sending back the case for refresh trial and deciding the case.

I have heard both the sides and perused the record of both the courts below. I have also perused the judgment/orders of both the Courts below.

As per judgment dated 23.1.2004 by trial Court the suit was dismissed though it was found that respondent/plaintiff was entitle to get half share of the property in this regard the trial court made observation in para 29 of the judgment as he being descendant of Mahadeo and Saraswati Bai and remaining half share the appellants no. 2 to 6 are entitled to get. It was also observed by trial Court that property which was bequeathed to Meera Bai through will, counter claim of Meera Bai was accepted and counter claim and suit of the plaintiff was dismissed.

From the perusal of the judgment of learned appellate Court it is very much clear that from appreciation of the evidence learned appellate Court by an elaborate order came to the conclusion that plaintiff''s share was very much subsisting and the suit against Meera Bai through will was barred as suit was not brought within three years from the date of enforcement of will, as the matter can be taken to Revenue Court instead of claiming declaration from Civil Court.

Learned counsel for the appellant has submitted that as per authority Ashwinkumar K. Patel Vs. Upendra J. Patel and Others, wherein it has been held that under Order 41 Rule 23 CPC, High Court should not ordinarily be exercised merely because in its view reasoning of lower Court in some aspects was wrong. Paragraph no. 7 is as under:

"7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C.P.C. to the lower court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessarily delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavit and decided above the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and agreement of 1991 on the other, has in this case, such remand order would lead to further delay in uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary."

As per authority of Shri Deo Raghunathji Bada Mandir, Bina vs. Prahlad Singh and another (Misc. A. No. 1794/2002 dated 22.10.2003 (Jab.)) it has been held that:

"Under order 41 RR. 23 and 23-A of CPC the power of remand should be exercised sparingly. Endeavour of the appellate Court should be to dispose of the case itself. The power of remand should not be ordinarily exercised merely because in the view of the appellate Court reasoning of the trial Court in some aspects is wrong. Where all evidence has been duly placed before the trial Court and it has decided the suit on merits on several issues which were framed, the appellate Court has no power to remand. The order of remand retards the progress of the case and puts it in reverse gear. If the appellate Court finds the findings of the trial Court erroneous or faulty it has the power to give its own findings."

On the other hand, learned counsel for the respondent/plaintiff has placed reliance on Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, and Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others, in which it has been held that where the matter demands and some special issues have been framed/taken the case should be remanded for retrial within a period of six months as ordered.

Looking to the findings of the trial Court it is very much clear that learned appellate court by marshalling and appreciating of the evidence came to the conclusion that Ramkrishan was owner of the share of the suit property being legal heir of Mahadeo through his first wife Saraswati Bai. After dissolution of first marriage Mahadeo kept Jani Bai and appellants No. 2 to 6 were born who are legitimate children of Mahadeo. It is also submitted that for the sake of argument if Jani Bai was being concubine then too appellants no. 2 to 6 to be legitimate children and they are entitled to get the property of their father. From perusal of the judgment of appellate Court it is very much clear that the appellate court had to come to the definite conclusion but instead deciding the case itself, it remanded the case to trial Court for retrial without any justification. It could have decided the appeal very well instead deciding it remanded the case for fresh trial which is against the spirit and direction of Ashwinkumar K. Paul and Shri Deo Raghunathji Bada Mandir, Bina (Supra). I am full agreement with learned counsel for the appellant that there was no justification of sending back and remanding the civil suit so the judgment and decree dated 14.3.2005 of Learned Additional District Judge, Multai passed in Civil Appeal No. 4-A/04 is against the facts and circumstances of the case. Hence judgment and decree dated 14.3.2005 of Learned Additional District Judge, Multai passed in Civil Appeal No. 4-A/04 is set aside and Civil Appeal No. 4-A/04 is restored The appellate Court is directed to hear the appeal afresh and decide the appeal in accordance to law within a period of six months from the receipt of the records after giving proper hearing to both the parties. It is to be noted that the observations made by this Court in the foregoing paras in this order will not be binding on the appellate Court and the appellate court shall decide the appeal without prejudice of the findings of this Court.

Appeal allowed. No orders as to costs.