Telangana High Court
A. Ramesh And 18 Others vs Gaddam Shankaraiah Died And 4 Others on 5 June, 2023
Author: M.Laxman
Bench: M.Laxman
THE HONOURABLE SRI JUSTICE M.LAXMAN
I.A.No.5 of 2011
(CROSS OBJECTIONS SR No.26769 OF 2011)
IN/AND
CIVIL MISCELLANEOUS APPEAL No.352 of 2011
COMMON JUDGMENT:
1. This common judgment disposes of main appeal as well as cross objections.
2. This Civil Miscellaneous Appeal assails the judgment and decree dated 26.11.2010 in A.S.No.164 of 2004 on the file of V Additional District Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar (hereinafter referred to as 'lower appellate Court'), whereunder the appeal filed by the plaintiffs was allowed setting aside the judgment and decree dated 28.07.2004 in O.S.No.751 of 1996 on the file of II Additional Senior Civil Judge, Ranga Reddy District at L.B. Nagar (hereinafter referred to as 'trial Court') and remitted the matter for fresh trial on the additional issues framed while dismissing I.A.No.524 of 2010 which was filed by defendants in the appeal for dismissal of the suit as abated for non- bringing of all the legal heirs of defendant No.1 in the suit. Aggrieved by the said order, the present appeal is filed at the instance of defendant Nos.5 to 18 in the suit. Respondent Nos.1 to 3 herein filed the present suit for partition of suit schedule 'A' and 'B' properties, who are plaintiffs. 2
3. The cross objections are directed against certain findings in the judgment of the lower appellate Court with regard to permitting the defendants to amend the pleadings and to adduce additional evidence, in spite of lapses on the part of contesting defendants to raise such plea in their pleadings.
4. The appellants herein are defendant Nos.5 to 18, respondent Nos.1 to 3 herein are the plaintiffs, respondent No.4 herein is defendant No.3 in the suit. Defendant Nos.1, 2 and 4 in the suit died. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit.
5. The sum and substance of the case of the plaintiffs is that defendant No.1 and mother of original defendant Nos.2 and 3 are the brother and sister. Plaintiffs are sons of defendant No.1. Originally, suit schedule 'A' and 'B' properties were inherited from common ancestor Late G.Mallaiah. After his demise, G.Yellaiah, who is son of G.Mallaiah, inherited the suit schedule 'A' and 'B' properties. He died leaving behind defendant No.1 and Andela Mallamma, who is his daughter, to succeed him. Defendant No.2 was residing in H.No.1-84, which was standing in his name and H.No.1-85 was in occupation of defendant No.1, being the owner. Originally, the patta in respect of suit 3 schedule 'B' properties, which are consisting of lands admeasuring Ac.0-39 guntas in Sy.No.28 and Ac.0-20 guntas in Sy.No.30 of Serilingampally, were in the name of defendant No.1. During the year 1980-81, defendant No.2 in collusion with Village Patvari, without knowledge of plaintiffs, deleted the name of defendant No.1 from the revenue records and got entered the name of defendant No.2 as pattadar in respect of suit 'B' schedule properties. Ever since, the name of defendant No.2 was reflected in the revenue records. The plaintiffs also claimed that the Government acquired the land admeasuring Ac.0-10 guntas out of total extent of Ac.0-39 guntas in Sy.No.28 for formation of Manjeera pipeline and defendant No.2 received entire compensation, but did not render any accounts to them. In the said circumstances, the plaintiffs demanded the defendants for partition of suit schedule 'A' and 'B' properties and when they refused, they filed the present suit.
6. Defendant No.1 has not contested the case. Defendant No.2 filed his written statement and the same was adopted by the other defendants. The case of the contesting defendants is that father of defendant Nos.2 and 3, late Chinna Mallaiah, had purchased a tiled house along with open land in Sy.No.28 corresponding old Sy.No.26 through a registered 4 sale deed under Ex.B1 from defendant No.1. He also purchased open land and tiled house, which form part of Sy.No.30 from Bodi Lingamma through a registered sale deed under Ex.B3. Defendant No.1 was permitted to occupy house bearing No.1-85 and such house property was not available for partition, since it is the absolute property of the contesting defendants. It is also pleaded that part of land in Sy.No.28 was acquired by the Government for laying pipeline and they received compensation, as no objection has been made by defendant No.1 and the plaintiffs claiming any right over the property. Further, mutations were effected based on the sale deeds in the year 1980-81 and 1993-94. Basing on the above pleadings, the contesting defendants prayed to dismiss the suit.
7. On the above pleadings, the trial Court originally framed three issues, which are as follows:
"1. Whether the plaintiffs are entitled to preliminary decree for partition of A and B schedule properties as prayed for?
2.Whether the suit claim is barred by limitation?
3.To what relief?"
8. Subsequently, two more additional issues were framed by the trial Court, which are as follows:
"1.Whether the plaintiffs are in joint possession of schedule property?5
2.Whether D4 to D18 perfected their title by adverse possession?"
9. Another additional issue was framed by the trial Court after the matter was reserved for judgment, which is as follows:
"Whether the suit is bad for non-joinder or necessary parties?"
10. In support of their case, the plaintiffs got examined P.Ws.1 and 2 and marked got Exs.A-1 to A-17. On behalf of defendants, D.Ws.1 and 2 were examined Exs.B-1 to B-42 were got marked.
11. On appreciation of evidence, the trial Court found that the plaintiffs failed to establish that the suit properties are ancestral properties and are available for partition. It was also held that the plaintiffs failed to establish the joint possession over the suit properties, leaving H.No.1-85, part of suit 'A' schedule properties. It was also found that the suit is not barred by limitation and suit was liable to be dismissed for non-joinder of proper and necessary parties. Aggrieved by the same, the plaintiffs filed first appeal i.e., A.S.No.164 of 2004 and defendant Nos.5 to 18 filed I.A.No.524 of 2010 before the lower appellate Court.
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12. The lower appellate Court having appreciated the evidence on record came to the conclusion that the additional issue of non-joinder of proper and necessary parties and its consequences should not have been framed without there being any pleadings and should not have been answered without giving opportunity to the parties, that too, after judgment was reserved. It was also observed that the issue of joint possession which has been framed by the trial Court was confusing, as such, the lower appellate Court reframed the issue and remanded the matter back to the trial Court leaving open to the parties to amend the pleadings and lead further evidence. Aggrieved by the same, the present appeal is preferred by the contesting defendants and cross objections have been filed by the plaintiffs.
13. Heard both sides and perused the material available on record.
14. The points that arise for consideration in the present appeal are as follows:
"1. Whether the lower appellate Court is justified in remanding the matter for fresh trial by permitting the parties to amend the pleadings and to lead further evidence?
2. Whether the findings of the lower appellate Court in holding that without pleadings, additional issue cannot be framed can be sustained?7
3. Whether the issue reframed by the lower appellate Court is appropriate and not covered by the issue which was already framed by the trial Court?"
Point Nos.1 to 3:
15. The contention of the learned counsel for the appellants/contesting defendants is that the lower appellate Court grossly erred in remanding the matter without giving any finding with regard to necessity of retrial. The lower appellate Court ought not to have remanded the matter and ought to have answered the issues as per the pleadings available on record. It is also his contention that there is no finding from the lower appellate Court with regard to requirement of any fresh evidence, necessity of retrial by giving opportunity to both the parties. Without such findings, the lower appellate Court cannot assume power of remand in terms of Order XLI Rule 23A of the Code of Civil Procedure, 1908.
16. Learned counsel for respondents/plaintiffs has contended that since the issues framed were not proper, the lower appellate Court has rightly re-framed the issues and remanded the matter for fresh trial. He has further contended that except permitting the contesting defendants to amend the pleadings and to lead evidence with regard to non-joinder of proper and necessary parties, the rest of the 8 judgment of the lower appellate Court holds good. According to him, the order of remand to the above extent has rightly been made by the lower appellate Court and hence, it requires no interference.
17. Rules 23, 23A and 25 of Order XLI of CPC are relevant for the purpose of answering point No.1, which read as under:
'Rule 23:- 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.
Rule 23A:-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.
Rule 25:- 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 therefore.' 9
18. The power of remand under Order XLI Rule 23 of CPC can only be exercised when the appeal is filed against disposal of the suit on preliminary point and such decree can be reversed on the preliminary point. Then, the appellate Court can remand the matter by giving appropriate directions as to what the issue or issues shall be tried in the case so remanded.
19. In the present case, the suit was not disposed of on preliminary point. Therefore, the said provision is inapplicable. Order XLI Rule 23A of CPC says that when the Appellate Court reversed the decree of the trial Court considering that the matter requires retrial, it shall exercise the power of remand, as contemplated under Rule 23 of Order XLI. The said provision is applicable to the facts of the present case.
20. Rule 25 of Order XLI of CPC enables the Appellate Court to frame issues, which are necessary for rightful disposal of the appeal, and direct the trial Court whose decree is appealed to take additional evidence and to give findings thereon and return the evidence to the appellate Court with the findings thereon and reasons for such findings, within the time fixed by the Appellate Court. 10
22. In the present case, the lower appellate Court resorted to exercise the power conferred under Order XLI Rule 23 of CPC. In this regard, it is also apt to refer the decision of Apex Court in case of Municipal Corporation, Hyderabad vs. Sunder Singh1, which reads as follows:
"19. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order XLI Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order XLI Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.
20. Order XLI rule 23A of the Code of civil Procedure is also not attracted. The High Court had not arrived at a finding that a re-trial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order XLI Rule 23 of the Code.
An order of remand cannot be passed on ipse dixit of the court............"
23. It is also appropriate to refer the decision of the Apex Court in case of Sirajudheen vs. Zeenath2, which reads as under:
"10. It could at once be noticed that in terms of Rule 33 of Order XLI Code of Civil Procedure, the Appellate Court is empowered to pass any decree and to make any order which ought to have been passed or made; and which may be considered requisite in a case. While the said Rule 33 prescribes general powers of the Court of appeal, the specific powers of remand are prescribed in Rules 23 and 23-A of Order XLI Code of Civil Procedure. Hence, for the purpose of the case at hand, reference to aforesaid Rule 33 remains inapposite. Having said so, we may proceed to 1 MANU/SC/7735/2008 2 MANU/SC/0177/2023 11 examine if the order of remand in the present case could be justified with reference to the other referred provisions of Order XLI Code of Civil Procedure?
11 & 11.1 xxx 11.2. After having taken note of the salient features of the impugned judgment as also the significant omissions therein, if we refer to the provisions empowering the Appellate Court to make an order of remand, it is difficult to find any justification for remand by the High Court in the present case. As noticed, the scope of remand in terms of Rule 23 of Order XLI Code of Civil Procedure is extremely limited and that provision is inapplicable because the suit in question had not been disposed of on a preliminary point. The remand in the present case could only be correlated with Rule 23-A of Order XLI Code of Civil Procedure and for its applicability, the necessary requirements are that "the decree is reversed in appeal and a re-trial is considered necessary". As noticed hereinabove, there is no reason whatsoever available in the impugned judgment as to why and on what basis the decree was reversed by the High Court. Obviously, the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. Thus, remand in the present case cannot be held justified even in terms of Rule 23-A of Order XLI Code of Civil Procedure.'
24. It is also appropriate to refer to the decision of the Apex Court in case of Syeda Rahimunnisa vs. Malan Bi3, which reads as under:
"31. Fourthly, having formulated the questions (though wrongly), the High Court went on to discuss all the issues in 59 pages as if it was hearing first appeals and instead of answering the questions, set aside the judgment/decree of the two courts below and proceeded to remand the cases to the trial court for de novo trial in all civil suits. In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court.3
MANU/SC/1166/2016 12
32. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds?
34. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect.
35. 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 XLI Rule 23, 23-A and 25 of Code of Civil Procedure. 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 XLI of Code of Civil Procedure 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 XLI of Code of Civil Procedure 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.'
25. A reading of the above provisions as well as decisions referred herein before, it is clear that the appellate Court must be mindful of the effect of order of remand on the long drawn litigation between the parties. Further, the power of 13 remand cannot be invoked as a matter of routine. For invoking such a power, particularly in a case covered under Order XLI Rule 23A of C.P.C., the appellate Court must give findings for necessity of retrial. Without such findings, the Court cannot assume the power of remand. The appellate Court shall not resort to exercise the power of remand when no party to the litigation asks for retrial, since the remand further prolongs the long run battle between the parties. The appellate Court shall keep in mind the provision under Rule 25 of Order XLI of CPC, as per which, when the appellate Court feels that particular issues, which are essential to dispose of the dispute between the parties, ought to have been framed but not done, it can get findings on such issues from the trial Court by retaining approach instead of remand.
26. In the present case, the remand is sought on two grounds. The first ground is that an opportunity has not been given before additional issue was framed and answered. The trial Court framed the additional issue suo-motu in the process of delivering the judgment without there being any pleading to that effect. The second ground was that the issue touching the joint possession was felt to be confusing and misleading in the background of the fact that the suit properties are coparcenary properties as claimed by the 14 plaintiffs and they are self acquired properties as claimed by the contesting defendants. There are no reasons or findings whether such lapses pointed out by the lower appellate Court require retrial. There must be reasons for necessity of retrial of the case. Absolutely, such reasons are lacking in the order of the lower appellate Court. Further, no party to the litigation urged before the lower appellate Court for retrial. Therefore, the lower appellate Court should not have exercised the power of remand, instead the lower appellate Court ought to have decided the issues already framed by the trial Court to put an end to the dispute between the parties.
27. The order of remand is made on one more ground. The lower appellate Court felt confusion state of issues touching the joint possession and wrongly assumed that the issues framed already have not been covered the dispute between the parties in the suit for partition. The only question in the partition suit is whether the plaintiff established that the suit property is available for partition. This issue was framed in the different manner, but it is covered on issue No.1 of the trial Court, which was originally framed. The joint possession is relevant to the extent of mesne profits as well as payment of Court fee. The first finding is whether the property is available for partition. This issue incidentally 15 covers the defence of defendants with regard to purchase and self acquisition of their father. There is no necessity to frame any further issue. There are pleadings from the plaintiffs that the property was inherited from their grand-father and is available for partition. In this regard, they have let in the evidence to prove such fact. There are also clear pleadings from the contesting defendants that the suit properties were purchased by their father from defendant No.1 as well as from one Lingamma under Ex.B1 to B4, which are sale deeds and translations. Both the parties entered into witness box and basing on such evidence, the trial Court gave findings that the suit properties are not available for partition. The claim set up by the defendants that their father purchased the suit property is under Ex.B-1 to B-4 was believed.
28. The trail Court adverted to such issue based on evidence available on record. In this regard, the lower appellate Court has not assigned any reasons that the evidence let in by any party is insufficient and there is necessity for retrial on this aspect. In this regard, both the parties are conscience with all the claims and counter claims. They have let in evidence basing on the claims and counter claims. There is ample evidence on record, and therefore, the 16 lower appellate Court should not have resorted to the power of remand.
29. The lower appellate Court while disposing of I.A.No.524 of 2010, which was filed by the contesting defendants, by placing reliance on Order XXII Rule 4 (4) of C.P.C., held that other shareholders who are the legal heirs of defendant No.1, who died during pendency of the proceedings, can be brought on record at any stage. The lower appellate Court committed grave irregularity in invoking the provisions under Order XXII Rule 4 (4) of C.P.C. Such provision deals with parties to the litigation, who have not contested by filing the written statement. But, in the present case, after the death of defendant No.1, all the descendants of defendant No.1 have not been made parties even before and after the death of defendant No.1. Therefore, the question of non-contesting the suit by them by filing the written statement does not arise. Therefore, the order of the lower appellate Court in this regard is also liable to be set aside.
30. Consideration of issue of non-joinder of parties is consequent to the findings on the availability of suit properties for partition. If the Court comes to the conclusion that the suit properties are available for partition, the impact and consequences of non-joinder of parties has some 17 relevance. If the issue touching the availability of suit properties for partition is negatived, there is no requirement and necessity of even adverting to the issue of non-joinder of parties and its consequences. This had to be bear in mind by the lower appellate Court while considering the issue of non- joinder of necessary parties.
31. The other reason given by the lower appellate Court is that the additional issue touching the maintainability of the suit on account of non-joinder of proper and necessary parties was framed without any material pleadings in the plaint. Such findings are incorrect. This Court feels that issue would also arise during the course of evidence without there being pleadings from the respective parties. There is misconception in this regard from the lower appellate Court. The lower appellate Court failed to take into account provisions of Order XIV Rule 3, which reads as follows:
"3: Materials from which issues may be framed:-
The Court may frame the issues from all or any of the following materials
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party."
32. A reading of the above provision, it is clear that the issues arise out of the allegations made on oath by the parties or their representatives or the persons present on 18 their behalf or their pleaders. The issues can also be framed based on pleadings and answer to interrogatories. Lastly, issues can also be framed based on the contents of documents produced by the parties. When issues can also be framed based on the evidence, the findings of the lower appellate Court that without pleadings, issues cannot be framed, requires to be set aside. In this regard also there is no need for retrial. The reason is that this issue was framed by the trial Court basing on the evidence of the plaintiffs and the defendants. In the cross-examination of PW.1, there is categorical admission that defendant No.1 had two wives and children of first wife were excluded while filing the suit and female were also left out and the children of second wife were also left out. When such is the clear admission, issue of fact becomes issue of law and there is no need for retrial.
33. The only question of law is that in the absence of all the legal heirs of defendant No.1, the suit for partition filed by some of the legal heirs is maintainable or not, which can be decided by the lower appellate Court by applying legal principles of law. In this regard, remand is also not required. The amendment of the pleadings and retrial is also unwarranted.
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34. The lower appellate Court reframed the additional issues having found that issue touching joint possession was confusing, such additional issue is as follows:
"Whether the plaintiffs are in joint possession of schedule property?"
35. A glance of the above issue framed by the lower appellate Court, it appears that the negative issue has been framed by the lower appellate Court with regard to coparcenary nature of the property. The issue of self acquisition as set up by the defendants also comprehends in single issue. In fact, original issue was framed by the trial Court which is comprehensive issue and this issue covers the issue already either reframed or framed by the lower appellate Court. There is no necessity for reframing said issue as the said issue was already covered in the issues framed by the trial Court. In this regard also, the lower appellate Court committed error. This Court feels that the order of the lower appellate Court requires to be set aside by allowing the appeal and cross objections and the matter requires to be re-heard by the lower appellate Court giving findings touching the issues, which were already on record.
36. Accordingly, both the appeal and the cross objections are allowed setting aside the judgment and decree dated 20 26.11.2010 in A.S.No.164 of 2004 and I.A.No.524 of 2010 on the file of V Additional District and Sessions Judge (Fast Track Court), Ranga Reddy District at L.B.Nagar. The appeal before the lower appellate Court is restored to its file. The lower appellate Court is directed to dispose of the appeal basing on the evidence available on record with regard to issues framed by the trial Court. Such exercise shall be completed within two months from the date of receipt of a copy of this judgment.
_______________ M.LAXMAN, J Date: 05.06.2023 TJMR