Madhya Pradesh High Court
Mohan Lal Yadav (Dead) Through Lrs. Smt. ... vs Dwarka Prasad Yadav on 6 December, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 6 th OF DECEMBER, 2022
MISC. APPEAL No. 1535 of 2016
BETWEEN:-
1. MOHAN LAL YADAV (DEAD) THROUGH LRS. SMT.
RAMWATI BAI WD/O LATE MOHAN LAL YADAV,
AGED ABOUT 65 YEARS, R/O GRAM JOGI
TIKARIYA TEHSIL AND DISTRICT DINDORI
(MADHYA PRADESH)
2. CHHAIL BIHARI YADAV S/O LATE MOHAN LAL
YADAV, AGED ABOUT 39 YEARS, R/O GRAM JOGI
TIKARIYA TEHSIL AND DISTRICT DINDORI
(MADHYA PRADESH)
3. SUBHA BAI D/O LATE MOHAN LAL YADAV, AGED
ABOUT 42 YEARS, R/O GRAM JOGI TIKARIYA
TEHSIL AND DISTRICT DINDORI (MADHYA
PRADESH)
4. SMT. REKHA BAI W/O NAND LAL YADAV D/O
LATE MOHAN LAL YADAV, AGED ABOUT 46
YE A R S , R/O GRAM GANVAHI TEHSIL AND
DISTRICT DINDORI (MADHYA PRADESH)
5. SMT. SHASHI BAI W/O RADHELAL YADAV D/O
LATE MOHAN LAL YADAV, AGED ABOUT 44
YE A R S , R/O GRAM GANVAHI TEHSIL AND
DISTRICT DINDORI (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI DIVESH JAIN - ADVOCATE)
AND
1. DWARKA PRASAD YADAV S/O LATE SHRI
KUNDANLAL YADAV, AGED ABOUT 60 YEARS,
GRAM JOGI TIKARIYA TEHSIL AND DISTRICT
Signature Not Verified DINDORI (MADHYA PRADESH)
SAN
Digitally signed by ANURAG SONI
Date: 2022.12.06 18:57:54 IST
2. RADHEY SHYAM YADAV S/O LATE SHRI
KUNDANLAL YADAV, AGED ABOUT 40 YEARS,
2
GRAM JOGI TIKARIYA TEHSIL AND DISTRICT
DINDORI (MADHYA PRADESH)
3. THE THE STATE OF MADHYA PRADESH (FORMAL
PARTY) THROUGH THE COLLECTOR DISTT.
DINDORI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI ASHOK LALWANI - ADVOCATE FOR RESPONDENT NOS. 1 & 2)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This appeal is filed by the plaintiff under order 43 Rule 1 (u) of the Code of Civil Procedure being aggrieved of judgement dated 04/05/2016 passed by learned District Judge, Dindori in Regular Civil Appeal No.17A/2015 making a wholesale remand to the trial Court directing the trial Court to implead LRs of sisters of the plaintiff and then decide their share in accordance with Hindu Law.
Shri Ashok Lalwani submits that there is no illegality in the impugned order.
Shri Divesh Jain in his turn submits that there is no need for a wholesale remand without framing any issue, as it is against the principles of law laid down by this Hon'ble High Court in case of Vipin Kumar & Others Vs. Sarojani, 2013 (1) MPLJ 480. It is submitted that appellate Court itself could have allowed an application for their impleadment and after impleading them could have decided the share in accordance with principles of Hindu Succession Act.
Shri Ashok Lalwani at this stage submits that Section 107 of the Code of Civil Procedure deals with powers of appellate Court and Clause-D of Sub-
Signature Not Verified SANSection 1 of Section 107 authorises it to take additional evidence or to require Digitally signed by ANURAG SONI such evidence to be taken.
Date: 2022.12.06 18:57:54 IST 3In view of such facts, instead of prolonging the matter when no substantial issue has been framed by the appellate Court, it will be in the interest of justice that order of remand is quashed and matter is remitted to the appellate Court to allow the LRs of the sisters of the present appellant/plaintiff to be impleaded as a party and then determine share of each of them in accordance with the provisions contained in Hindu Succession Act.
Accordingly, impugned order is set aside. Learned appellate Court of District Judge, Dindori is directed to decide the lis within three months of receipt of certified copy of the order.
Parties are represented here. They may appear suo moto, for which no separate date will be given and they shall appear before the trial Court on 21/12/2022.
In above terms, appeal is disposed of.
Record be sent back.
(VIVEK AGARWAL) JUDGE as Signature Not Verified SAN Digitally signed by ANURAG SONI Date: 2022.12.06 18:57:54 IST