Karnataka High Court
D Lingegowda vs Smt Gowramma on 22 June, 2024
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1971/2018 (PAR)
BETWEEN:
D LINGEGOWDA
AGED ABOUT 77 YEARS
S/O LATE DEVEGOWDA
RESIDING AT BOOVALLI
SATHANUR HOBLI,
KANAKAPURA TALUK
BANGALORE DISTRICT-562117.
... APPELLANT
(BY SRI H C SHIVARAMU, ADVOCATE)
AND:
1. SMT. GOWRAMMA
AGED ABOUT 86 YEARS
W/O LATE M C PUTTASWAMY
[R1 DIED, R2 & R3 ARE LRS BY
ORDER DATED 18.02.2020]
2. NAGESHA
AGED ABOUT 46 YEARS
S/O LATE M.C.PUTTASWAMY
RESPONDENT NOS.1 AND 2 ARE
RESIDING AT PALACE QUARTERS,
NO.1424, PEER KHAN STREET
NAZARBAD MOHALLA
MYSORE - 570023
2
3. P. NARAYANA
AGED ABOUT 61 YEARS
S/O LATE M.C.PUTTASWAMY
RESIDING IN QUARTERS NO.585
ST. MOHANDAS TULASIDAS
HOSPITAL PREMISES, J L B ROAD,
MYSORE - 570023 ... RESPONDENTS
(BY SRI VINAY N, ADVOCATE FOR
SRI MANMOHAN P N, ADVOCATE FOR C/R3;
R1 - DECEASED
SMT. SINCHANA M R, ADVOCATE FOR R2)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 11.07.2018
PASSED IN R.A.NO.54/2016 ON THE FILE OF THE III ADDL.
DISTRICT JUDGE, MYSURU AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.06.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This second appeal is filed challenging the judgment and decree of reversal passed by the First Appellate Court in R.A.No.54/2016 on 11.07.2018 granting the relief of partition and separate possession of 1/3rd share in the suit schedule property in favour of the plaintiff. 3
2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for respondent Nos.2 and 3.
3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.
4. The factual matrix of the case of the plaintiff before the Trial Court that defendant No.1 is the mother and defendant No.2 is the brother of plaintiff. The suit schedule property is a site and the same was allotted in favour of his mother on account of death of his father in recognizing the service rendered by his father. Hence, the same is the property of the family and not the exclusive property of his mother and the same is a joint family property of himself, defendant Nos.1 and 2. Defendant Nos.1 and 2 are not having exclusive right to sell the property and hence, the plaintiff is entitled for the relief of 4 partition and separate possession of his 1/3rd share. Defendant No.1 filed written statement supporting the case of the plaintiff contending that defendant No.2 i.e., another son of defendant No.1, fraudulently obtained the signature of her on the sale deed saying that he requires the document to avail loan. Defendant No.3 appeared and filed written statement contending that he is the bonafide purchaser of the suit schedule property and there are other joint family properties other than the suit schedule property and the same have not been included in the suit hence, the suit is not maintainable as it is a suit for partial partition. It is also contended all the documents stands in the name of defendant No.1.
5. The Trial Court having considered the pleadings of the parties framed the following Issues:
1. Whether the plaintiff proves that the suit schedule property is the ancestral and joint 5 family property of plaintiff and defendant Nos.1 and 2?
2. Whether the defendant No.3 proves that there are other joint family properties other than the suit schedule property?
3. Whether the defendant No.3 proves that he is a bonafide purchaser of the suit schedule property?
4. Whether the defendant No.3 proves that the suit is not maintainable as it is a partial partition suit?
5. Whether the plaintiff proves that she has 1/3rd share over the suit schedule property?
6. Whether the plaintiff is entitled for relief sought in the plaint?
7. What order or decree?
ADDITIONAL ISSUE:
1. Whether the first defendant proves that the sale deed dated 18.01.2001 was got executed by the 2nd defendant under the circumstances pleaded in 6 para 11 of the written statement and the same does not bind her?
6. The Trial Court having considered the pleadings of the parties, allowed them to lead their evidence. In order to prove the case of the plaintiff, he himself examined as PW1 and got marked the documents at Ex.P1 to P10. On the other hand, defendant Nos.1 and 3 have examined themselves as DW1 and DW2 respectively and got marked the documents at Ex.D1 to D20. The Trial Court having considered both oral and documentary evidence placed on record answered Issue No.1 as affirmative and answered Issue No.2 as negative coming to the conclusion that defendant No.3 is the bonafide purchaser of the suit schedule property and answered Issue No.3 as affirmative and Additional Issue is answered as negative and remaining other Issues are also answered as negative. Accordingly, dismissed the suit.
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7. Being aggrieved by the judgment and decree of dismissal of the suit, an appeal was filed by the plaintiff in R.A.No.54/2016. The First Appellate Court considering the grounds urged in the appeal memo, formulated the following Points:
1. Whether the Trial Court was correct in holding that the suit schedule property is the absolute property of defendant No.1, in which plaintiff does not have a share?
2. Whether the plaintiff is entitled to seek partition in the suit schedule property and if so, to what share?
3. Whether I.A. filed by the plaintiff/appellant under Order 41 Rule 27 of CPC deserves to be allowed?
4. Whether the impugned judgment and decree calls for interference?
5. What order?8
8. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record comes to the conclusion that the Trial Court was not correct in holding that the suit schedule property is the absolute property of defendant No.1 and the plaintiff is entitled for 1/3rd share in the suit schedule property and dismissed the application filed under Order 41 Rule 27 of CPC and held that the judgment and decree of Trial Court requires interference and affirmed that the judgment of the Trial Court with regard to the suit is not maintainable for partial partition.
9. Being aggrieved by the judgment and decree of First Appellate Court, the present appeal is filed by defendant No.3. The learned counsel appearing for the appellant/defendant No.3 would vehemently contend that the First Appellate Court failed to consider that the suit schedule property was allotted in the individual name of defendant No.1. Hence, it is the self-acquired property of 9 defendant No.1 and she has the absolute right to alienate the same in favour of defendant No.3. The counsel further contends that the First Appellate Court failed to consider the fact that the suit in question is a collusive suit. The evidence though reveals that the family is holding one more property as a joint family property and in the said property only defendant No.1 is residing. The plaintiff in collusion with defendant No.1 and 2 has deliberately not included the said property in the suit and the suit was filed only against the property in question in order to defeat the right of defendant No.3. The counsel would vehemently contend that the First Appellate Court failed to consider the fact that defendant No.3 in written statement has specifically contended that the family owns one more property bearing No.1424 situated at Peer Khan Road, Nazarbad Mohalla, Mysuru. The said property is not included in the suit and hence, the suit is not maintainable for partial partition. The counsel further contends that though defendant No.1 10 admits in her evidence that the said property belongs to her husband and she is residing in the said property only, the First Appellate Court rejected the said contention on the ground that defendant No.3 has not produced any document in support of the same. The counsel also would vehemently contend that voters list produced in support of the claim and the admission of defendant No.1 overlooked by the First Appellate Court. Hence, this Court has to frame the substantial questions of law.
10. This Court while admitting the appeal framed the following substantial question of law:
'Could the appellate Court have decreed the suit without considering the appellant's defence that the suit by the respondent No.3 was for partial partition and therefore, impermissible in law.'
11. The learned counsel appearing for the appellant in his arguments would vehemently contend that the Trial 11 Court rightly dismissed the suit of the plaintiff but the same is reversed by the First Appellate Court. The counsel also would vehemently contend that when the appellant had taken the specific defence in the written statement in paragraph 4 that the Trial Court rightly framed the Issue No.2 as whether the defendant No.3 proves that there are other joint family properties other than the suit schedule property and also framed Issue No.4 as whether defendant No.3 proves that the suit is not maintainable as it is a partial partition suit but committed an error in answering those Issues as negative though discussed and failed to consider the admission on the part of PW1 and DW1. The very contention of the defendant No.3 before the Court that non-inclusion of other property bearing No.1424, the suit itself is not maintainable. The counsel also would vehemently contend that though both the Courts have discussed the said issue but committed an error in answering as negative when there is a clear admission on 12 the part of both PW1 and DW1. Hence, the very approach of both the Courts is erroneous, when there is a clear admission on the part of both the witnesses. Section 58 of the Indian Evidence Act is very clear that admitted fact need not be proved. The counsel also brought to notice of this Court that immediately after the notice given by the plaintiff to his mother, she has given reply in terms of Ex.P9 wherein she has categorically stated that consideration was given to the plaintiff also and the same is not disputed. The counsel submits that there is an ample material to show that it is a collusive suit. Inspite of it, the Courts committed an error in not considering those materials.
12. Per contra, the learned counsel appearing for the respondent No.3/plaintiff would vehemently contend that there is no any admission that the suit property belongs to the family and the counsel would vehemently contend that no doubt, there is an admission with regard to residing in the said property but they are residing as tenants. The 13 counsel also contended that though mother admits the possession, not produced any documents to prove the same and in the evidence of mother also there are variations and hence, the evidence of the mother cannot be relied upon.
13. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record as well as considering the substantial question of law framed by this Court, this Court has to analyse the material on record since there is a divergent finding and this Court has to see whether there is any perversity in the finding of the First Appellate Court since the First Appellate Court reversed the finding of the Trial Court and granted the relief of 1/3rd share in favour of the plaintiff. Admittedly, the suit schedule property which was sold by defendant No.1, defendant No.2 is a consenting witness to the said sale. The contention of the appellant that it is an exclusive property of the mother. On the other hand, it is the contention of the plaintiff that the property belongs to ancestral and joint 14 family. Both the Courts have failed to take note of the fact that the property is not the ancestral property. Admittedly, the father of the plaintiff and defendant No.2 and husband of defendant No.1 was working and he died prior to the allotment of the property. The fact that the allotment is made in lieu of service rendered by him is not in dispute and the same is also a free allotment. Under such circumstances, though the property was allotted in favour of defendant No.1 i.e., mother and the same cannot be claimed as absolute property of defendant No.1, since the same is not earned by her self-acquisition. This Court also not disputes the fact that as a result of service rendered by the father and husband of respective parties, an allotment was made. No doubt, the father and husband of respective parties died prior to the allotment. When such being the case, there cannot be any exclusive right in favour of the mother, but it is a family property and not the ancestral 15 property and the parties have equal share in the same as given finding by the Trial Court.
14. Now, the question before this Court is that a specific plea was raised before the Trial Court by defendant No.3 who is a purchaser of the suit schedule property in paragraph 4 of the written statement that the suit for partial partition cannot be entertained without including the property which is not alienated and also specific contention was taken that very fact that the plaintiff is not seeking the relief in respect of other property and the same shows that the suit is a collusive suit and in order to defraud defendant No.3, the suit was filed. An Issue was framed by the Trial Court in this regard but while passing the judgment answered Issue Nos.2 and 4 as negative. In paragraph 31, the reason assigned is that defendant No.3 has only produced the voters list which show that the plaintiff and defendant Nos.1 and 2 are residing in the said property. Defendant No.3 has not produced any document to show as 16 to whom the said property belongs to. The defendant No.1 in her cross-examination has admitted that the said property belonged to her husband, but, unless the documents are produced for scrutiny of the Court as to whom the said property belongs to, it cannot be held that the said property is the joint family property of the plaintiff and defendant Nos.1 and 2 and the same is liable for partition between them. Hence, answered Issue Nos.2 and 4 as negative.
15. It is important to note that the First Appellate Court also while answering this point formulated the points that whether the suit schedule property is the absolute property of defendant No.1 and whether the plaintiff is entitled to seek the relief of partition but no point for consideration is framed by the First Appellate Court with regard to maintainability of the suit when the specific defence is taken that the suit is not maintainable for partial partition. However, the First Appellate Court in paragraph 17 33 discussed with regard to the maintainability of the suit for partial partition. The First Appellate Court also while dealing with this point taken note of the defence of defendant No.3 that purposely not included in the plaint schedule to prevent defendant No.3 from claiming equitable partition and also made an observation that PW1 has denied all suggestions that there are any other joint family properties which are not included in the suit. The admission of DW1 cannot be binding on the plaintiff and therefore, it was for defendant No.3 to independently prove that the property bearing No.1424 stands in the name of plaintiff's father and ought to have been included in the present suit and except producing the document of Ex.D1, no other materials produced to show that in whose name, the property stands and the voter list will not show the ownership of property.
16. Now, this Court has to consider the material on record in view of the contention of the appellant's counsel 18 that there is a clear admission on the part of PW1 and DW1 and admitted fact need not be proved. The counsel also brought to notice of this Court with regard to Section 58 of the Indian Evidence Act, 1872 wherein it is stated that once there is an admission, there cannot be any proving of the admitting fact and in keeping the said contention, this Court intends to extract Section 58 of the Indian Evidence Act which reads thus:
"58. Facts admitted need not be proved. - No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission."
17. Having read Section 58 of the said Act, it clearly states that facts admitted need not be proved. It is very clear that no fact need to be proved in any proceeding 19 which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Further, the Court may require the facts admitted to be proved otherwise than by such admission.
18. Now, this Court would like to consider the evidence of PW1 wherein he categorically admitted that Ex.D1 is the voters list wherein the address of the family members is shown in property bearing No.1424 and hence, it is clear that all of them are residing in property bearing No.1424 and their names are registered for voting in the same address. It is also categorically admits that all the family members names are found in Ex.D1 and still all of them names are continuing in the said address. It is also categorically admits by PW1 that in the year 1969 they came to the house pertaining to the door No.1424 and 20 when question was put to him that on what capacity his mother and brother are residing in the said address, he says that, they are residing in the said address as it is and not assigned the reasons and also he has not taken any action against his mother and his brother from 1998. Hence, the very observations made by the First Appellate Court that there is no admission and PW1 has denied the same cannot be accepted. Thus, it shows that the First Appellate Court not properly read the admission given by PW1.
19. It is also an observation of the First Appellate Court that only on the admission of the mother, there cannot be any conclusion that the family is having other properties and the same not binds on the plaintiff. The Court has to read the evidence of the parties in toto. There is a clear admission on the part of the witness that all of them are residing in the house bearing No.1424 and PW1 also admitted that they are residing in the said house from 21 1969 and still their mother is living in the very same house. It is also a suggestion that now, the value of the said property is more than the value of the property which was sold and no doubt, the same was denied by PW1. It is also categorically admits that he did not question on what reason the mother had sold the property and at no point of time, he questioned the same to his mother. Hence, it is clear that it is a collusive suit claiming 1/3rd share. But only he admits that when he gave the notice to his mother, she had given reply stating that she was in need of money and sold the property. However, he admits that the mother is not having any bad-vices. These admissions take away the case of the plaintiff. Even, PW1 further admits that his mother does have any intention to cheat him. PW1 categorically admits that he is not having any documents to show that he is taking care of his mother. He further admits that even after obtaining the certified copy of the sale deed at Ex.P10, after one year, he gave the notice and 22 the same clearly discloses that there is a collusiveness between the parties.
20. It is also important to note that when the notice was given by the plaintiff to his mother who has been examined as DW1 before the Trial Court categorically admits that still she is residing in the very same property and also categorically admits that said property belongs to her husband and now she is alone residing in the said address. But she claims that her both sons have cheated her. And also categorically admits that when the plaintiff left the house, herself and her another son i.e., defendant No.2 were residing in the house belongs to her husband. Hence, there is clear admission that the house belongs to her husband. DW1 claims that she has not given any complaint when her children cheated her. This also substantiate the contention of defendant No.3 that suit is filed with an intention to defeat the right created in favour of defendant No.3 and suit is a collusive suit. It is also 23 important to note that DW1 admits that the sale consideration was received by her second son i.e., defendant No.2 but only claims that her signature was obtained in order to avail the loan and the same is also not substantiated by placing any material. But she categorically admits that in the reply given by her as per Ex.P9, she categorically says that whatever sale consideration received and out of that, 1/3rd share was given to the plaintiff. A suggestion also made to the witness but she denies the said reply made as per Ex.P9. Ex.P9(a) that is the signature of DW1 and the same is admitted by her. It is important to note that plaintiff did not dispute the said reply document at Ex.P9. When the specific defence taken by DW1 at Ex.P9 that she has given the consideration of 1/3rd share to the plaintiff. These are the material admissions which are not taken note of by both the Courts and nothing is discussed on Ex.P9.
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21. It is important to note that the Trial Court while considering the issue of partial partition, except stating that defendant No.3 has not produced any documents to show that as to whom the said property belongs, not discussed anything about the admission on the part of PW1 and DW1. It is a settled law that admitted fact need not be proved in terms of Section 58 of the Indian Evidence Act. When there is a clear admission on the part of witnesses, the Trial Court while answering Issue Nos.2 and 4 has not discussed anything in this regard and the reason given by the Trial Court is very cryptic in not discussing with regard to the admission given on the part of PW1 as well as DW1 and also reply in terms of Ex.P9. The admission given with regard to Ex.D1 also shows that address of all the family members in the voters' list stands in respect of the property bearing No.1424 but no discussion was made with regard to the admission on the part of DW1 stating that the said house belongs to her husband as well as still their voter list 25 continued in the said address. Hence, it is clear that it is a collusive suit and also not included other property which belongs to the family of the plaintiff, defendant Nos.1 and
2. The First Appellate Court also comes to the conclusion that admission on the part of DW1 is not binding on the plaintiff and the same is also contrary to the material on record. PW1 also categorically admitted the document at Ex.D1 as well as staying in the property bearing No.1424 and also the specific admission on the part of DW1 is that the property bearing No.1424 is belongs to her husband wherein she is residing. When such being the material on record, the very suit challenging the sale made by the mother and also other brother who is a consenting witness, without including other property wherein he resided along with the mother and defendant No.2 prior to coming out from the said property is evident since knowing fully well that the said property also belongs to the family and did not intentionally include the said property to the suit for 26 partition. The very contention of the counsel for respondent No.3 that the property wherein respondent Nos.1 and 2 were residing is a tenanted property and not belongs to respondent Nos.1 and 2 and the said submission is also not based on any material. Mere non-production of document cannot be a ground to comes to the conclusion that same is not belongs to the family when there is clear admission on the part of DW1 that the said property is also belongs to her husband and PW1 also categorically admitted with regard to the existence of other property and they were in possession from 1969. Hence, both the Courts have committed an error in considering the evidence available on record.
22. This Court would like to refer the judgment of the Apex Court reported in (1994) 4 SCC 294 in the case of KENCHEGOWDA (SINCE DECEASED) BY LEGAL REPRESENTATIVES vs SIDDEGOWDA ALIAS MOTEGOWDA wherein the Apex Court held that partition 27 under Hindu Law, when the suit is filed for the relief of partial partition, when all the joint family properties not made as the subject matter of the suit nor the co-sharers impleaded, not maintainable. The Apex Court in paragraph 10 held that when the suit is for the relief of declaration and injunction into one for partition when all the joint family properties were not made the subject matter of the suits nor were all the co-sharers impleaded. It is also held that well settled in law that a suit for partial partition is not maintainable.
23. This Court also would like to refer the judgment of this Court reported in 2010 SCC ONLINE 5291 in the case of G M MAHENDRA vs G M MOHAN AND ANOTHER wherein this Court discussed in detail and in paragraph 39 referred Order II Rule 2 of CPC and also taken note of categorical admission of the plaintiff that joint family is having other properties and when the suit is filed by the plaintiff without including all the joint family properties and 28 which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law.
24. This Court also would like to refer the judgment of the Delhi High Court reported in 2014 SCC ONLINE DEL 2342 in the case of INDER MOHAN SINGH AND OTHERS vs SUBE SINGH wherein it is held that inspite of admission of a fact having been made by a party to the suit, the Court may still require the plaintiff to prove the fact which has been admitted by the defendant. This is also in consonance with the provisions of Section 58 of the Evidence Act. The proviso to this section specifically gives discretion to the Court to require the facts admitted to be proved otherwise than by such admission. The proviso corresponds to the proviso to Rule 5(1) Order 8 of CPC. The proviso quoted above is identical with the proviso to Section 58 of the 29 Evidence Act, which lays down that facts admitted need not be proved.
25. This Court would like to refer the judgment of the Delhi High Court reported in 2018 SCC ONLINE DEL 6500 in the case of PRAVEEN SAINI vs REETU KAPUR AND ANOTHER and the Delhi High Court in paragraph 12 discussed that the judgment on the aspect of admissions being binding, would like to refer the judgment of the Supreme Court in the case of NAGINDAS RAMDAS vs DALPATRAM ICHHARAM ALIAS BRIJRAM (1974) 1 SCC 242 and extracted paragraph 27 of the said judgment wherein also categorically held that admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admission admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that 30 makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.
26. Having considered these principles as well as considering Section 58 of the Indian Evidence Act and also the admission available on record i.e., the admission of PW1 and DW1 wherein PW1 stated that they were residing in the said premises from 1969 and he came out from the premises when differences were arisen between them and DW1, who had sold the property, also categorically admitted that the said house belongs to her husband and also taking into note of the document at Ex.D1 which is admitted by PW1 himself discloses that all of them are residing in the said address and voter list contains the names of all of them in respect of very same property this Court comes to the conclusion that the same are not 31 properly considered by both the Courts in a proper perspective. The material is very clear that it is a collusive suit between the mother and brothers to defeat the right of the appellant who had purchased the property for valuable sale consideration and he is a bonafide purchaser of the property since all the documents are stands in the name of the mother on account of allotment made in her favour and before purchasing the same, the appellant also verified the documents and the Trial Court rightly comes to the conclusion that he is the bonafide purchaser. Hence, I answer the substantial question of law framed by this Court accordingly.
27. Now the question before this Court is that whether the matter requires to be remanded for consideration as there are triable issues in the matter. Admittedly, both the plaintiff and the defendants have not produced any documents in respect of the property bearing No.1424. But this Court comes to the conclusion that in 32 view of clear admission on the part of PW1 as well as DW1 and as per Section 58 of the Evidence Act, there is no need to come to an other conclusion, since this Court has already come to a conclusion that it is a collusive suit since the admission is also not a stray admission and though DW1 categorically admitted the fact that said house belongs to her husband and there is unequivocal admission available on record and even the possession as on the date of cross- examination. When such finding is given by this Court, the question of once again producing the said document in order to arrive at a conclusion does not arise.
28. In this regard, this Court also would like to rely upon the judgment reported in (2008) 8 SCC 485 in the case of MINICIPAL CORPORATION, HYDERABAD vs SUNDER SINGH, wherein the Apex Court has set aside the order of remand made by the High Court invoking Order 41 Rule 23 of CPC. The Apex Court held that the Court should be slow in exercising the discretionary power under Rule 23 33 unless the conditions precedent therefore are satisfied. Rule 23 should not be invoked and the same is enabling provision. The Apex Court also held that the High Court did not record that retrial was necessary, if the Court did not arrive at a finding that decree was liable to be reversed. Hence, the question of invoking Order 41 Rule 23 is not attracted. It is also settled law that only when a decree has to be reversed in the appeal, the appellate court may if it considers necessary, remand the case in the interest of justice and it provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. The Court should be loathe to exercise its power in terms of Order 41 Rule 23 and an order of remand should not be passed routinely.
29. Having considered this principle laid down in the judgment referred supra, in the case on hand, this Court has already come to a conclusion that it is a collusive suit, since PW1 also admitted that he was also residing along 34 with other family members in the very same property and also admitted the document at Ex.D1. Apart from that, the mother, who has been examined as DW1 also categorically admitted that the said property belongs to her husband and she is still in possession of the very same house and residing in the said address. Hence, it is a clear case of invoking Order II Rule 2 of CPC for not including all other family property when the suit is filed particularly questioning the sale made by his mother and other brother. This Court also observed that the mother had given reply when the notice was given to her by the plaintiff before filing the suit stating that she has given 1/3rd share of the plaintiff when the property was sold and the same has not been disputed by the plaintiff and nothing is elicited in this regard in the cross-examination of PW1. Hence, it is clear that retrial is not necessary and the question of reversing the judgment of the Trial Court also does not arise as the appellant herein is the bonafide purchaser and the suit is a 35 collusive suit and detailed discussion is made by this Court that it attracts Section 58 of the Evidence Act and the Trial Court has rightly come to the conclusion that the appellant herein is the bonafide purchaser and suit is a collusive suit.
30. In view of the discussion made above, I pass the following:
ORDER
(i) The regular second appeal is allowed.
(ii) The judgment and decree dated 11.07.2018 passed in R.A.No.54/2016 by the First Appellate Court is set aside and the judgment and decree dated 27.11.2015 passed in O.S.No.11/2002 by the Trial Court is restored by dismissing the suit of the plaintiff.
Sd/-
JUDGE SN