1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD APPEAL FROM ORDER NO. 43 OF 1994 1 Rameshkumar s/o Balubhai Sukhadia Age 42 years, Occ. Prop. Kailash Bhavan Hotel, Vazirabad, Nanded 2 Tarunkumar s/o Balubhai Sukhadia, Age 44 years, Occ. And R/o. As above ...Appellants Versus 1 Kumwardevi w/o Shamlal Rathor, (Since died through L.Rs.) 1-A Omprakash s/o Shamlal Rathor, Age 50 years, Occ. Lecturer, R/o. Near New Godavari Bridge, Old Mondha, Nanded 1-B Gyanu s/o Shamlal Rathod, Age 45 years, Occ. Service, R/o. As above 2 Premchand s/o Bhagwandas Vekharia Age 62 years, Occ. Business, R/o. Ambika Temple, Vazirabad, Nanded ...Respondents ..... Mr. G.N. Chincholkar, advocate for the appellants Mr. P.V. Mandlik, senior counsel, for respondent Nos. 1-A and 1-B ..... CORAM: S. S. SHINDE, J. DATE OF RESERVATION OF JUDGMENT :15.10.2010 DATE OF PRONOUNCEMENT OF JUDGMENT :27.10.2010 2 ORAL JUDGMENT :- 1 This appeal From Order is filed challenging the judgment and order dated 1.9.1993 passed by the learned IIIrd Additional District Judge, Nanded in Regular Civil Appeal No. 276 of 1992. The appellants herein are the original defendant Nos. 1 and 2 in Regular civil suit No. 222 of 1989 and the respondent No. 1 and 2 in Regular civil Appeal No. 276 of 1992. The respondent No.1-A and 1-B herein are the legal heirs of original plaintiff in R.C.S. No. 222 of 1989 and appellant in R.C.A. No. 276 of 1992. The respondent No. 2 herein is the original defendant and respondent in the proceedings before the lower court. 2 The plaintiff filed the suit against defendants for declaration that the sale deed number No. 3541 dated 24.8.1979 executed by defendant No.3 in favour of the defendant Nos. 1 and 2 regarding suit property is null and void and in effective and not binding on the plaintiff. It is the case of plaintiff that the land Sr. No.50 admeasuring 26 acres 4 gunthas situated at village Asadullabag was purchased by plaintiff and other three persons by registered sale deed dated 21.8.1967 from one Abdul Samad Khan. After purchase of land at Sr No.50 the name of plaintiff and other purchasers were recorded in revenue record of the S. No.50. It is contended that the defendant No. 3 has no concern with the suit land S. No.50 and plaintiff came to 3 know that the defendant No.3 has executed sale deed in favour of defendant No.1 and 2 regarding 12 paise share in the suit land. The plaintiff came to know the execution of the sale deed by the defendant No.3 in the year 1989, hence she applied for copy of the sale deed and on getting the said copy, it was revealed to her that defendant No. 3 without having any right and title of ownership, has executed false and factitious sale deed in favour of defendant Nos. 1 and 2. It is further revealed from the said sale deed that so called firm purchased S.No.50 on 21.8.1967. It is contended that the partners Nanded Development Syndicate were never possessors of the land Sr. No.50, the provisions of Partnership Act are non convertible to the immovable property. The contention taken by the defendant No.3 in the sale deed dated 24.8.1979 that he has got 12 paise share in the suit land, is totally misconceived and contrary to the provisions of Partnership Act. It is contended that the plaintiff and other three purchasers are the joint owners of the suit land and their ownership is not divested by any instrument to defendant No.3. It is contended that defendant Nos. 1 and 2 have unauthorizedly occupied the land admeasuring 1 acres 20 gunthas out of S. No.50 and they have made out plots and further sold some plots hence plaintiff also claimed relief of perpetual injunction restraining the defendants from alienating the suit land and ultimately plaintiff prayed that the plaintiff is owner of the suit land and defendant Nos. 1 and 2 have no right or interest in the same by virtue of sale deed executed by defendant Nos. 3, and prayed to decree the suit. 4 3 The defendant No.3 was duly served. However, he failed to file written statement hence, the suit is proceeded exparte against him. The defendant Nos. 1 and 2 filed their written statement at Exh.21. The defendant Nos. 1 and 2 have denied all the contentions of plaintiff in toto. It is contended that the entire suit of plaintiff is false and baseless. It is contended that at the instigation of defendant No.3, plaintiff has filed the suit against defendants. It is also contented that defendant No.3 had filed suit against defendant nos. 1 and 2 bearing suit No. 495 of 1985 for declaration that the sale transaction is null and void, however, that suit was ultimately dismissed. It is contended that the plaintiff is aware of the transaction since beginning in between defendant No.3 and defendant No. 1 and 2. Further the revenue authorities have given effect of the sale deed dated 24.8.1979 in the revenue record and at that time the plaintiff challenged those entries immediately. Hence, the plaintiff knew from the very beginning regarding the sale deed dated 24.8.1979 and the suit therefore, is beyond limitation. It is denied that the plaintiff came to know the fact of sale deed in the month of February, 1989. It is contended that M/s. Nanded Development Syndicate is a partnership firm and the firm is owner of land S. No.50. It is contended that when the firm was dissolved at that time defendant No.3 got the share in the suit land to the extent of 12 paise share and accordingly defendant No.3 was having title in the suit land and he was competent to sale the same to 5 the defendant Nos. 1 and 2. It is contended that the plaintiff and other purchasers are not joint owner of S. No.50. The plaintiff and other purchasers have ceased their right in the suit land after formation of registered partnership M/s. Nanded Development Syndicate. It is further contended that valuation made by the plaintiff for jurisdiction and court fees purpose is totally wrong. The value of the suit land is about Rs.1,50,000/- and the plaintiff should have valued the suit accordingly. It is contended that the plaintiff has not properly valued the suit and paid court fees, It is contended that the defendant No.3 was owner of the suit land by virtue of the partnership deed and defendant No.1 and 2 are the rightful owners of the suit land by virtue of sale deed dated 24.8.1979. The plaintiff has no right and interest in the suit land and ultimately prayed for dismissal of suit. On the basis of the rival pleadings the trial court framed necessary issues as per Exh. 34 and after recording the evidence dismissed the suit. 4 Being aggrieved by the judgment and decree dated 16.7.1992 in Regular Civil Suit No. 222 of 1989, passed by the learned Joint C.J.S.D. Nanded, the respondent No.1 herein filed Regular Civil Appeal No. 276 of 1992. The IIIrd Additional District Judge, Nanded by his judgment and oder dated 1.9.1993 set aide the judgment and decree of the trial court and the matter was remanded back to the trial court thereby directing to frame some additional issues which formed part of the order of the trial court. The Trial court was further granted 6 liberty to adduce any more evidence if the party desires to do so. This judgment and order of the lower appellate court dated 1.9.1993 is under challenge in this Appeal From Order. 5 Learned counsel appearing for the appellant submitted that well reasoned judgment and decree of the trial court has been set aside by the lower appellate court without formulating any point for its consideration and determination and without discussing the evidence on record, the lower appellate Court remanded the matter back to the trial court granting liberty to frame additional issues. According to the counsel for the appellants, unless the lower appellate court framed the necessary issues for its determination the remand was impermissible. The appellate court has failed in its duties to decide the issue involved by itself and remanded the matter back to the trial court. It is further submitted that the mandate of Order 41 Rule 23, 23-A, 25 and 33 has not been followed by the lower appellate court while remanding the matter back to the trial court. It is further submitted that the trial court framed the number of issues and arrived at a definite conclusion. However, the lower appellate court has not considered all aspects of the matter and by cryptic discussion, remanded the matter back to the trial court. The learned counsel submitted that there is no discussion whether the suit claim was within limitation or not? There is no discussion about issue 1-A, which was framed by the trial court. Lower appellate court has also not considered that the trial court in para 26 of 7 its judgment had discussed that the plaintiff had raised objection before the Tahsildar when the defendant Nos. 1 and 2 have submitted an application on 6.10.1982 to give effect to mutation in their favour of 12 paise share. The lower appellate court has also not considered that the Tahsildar passed an order on 18.1.1985 and the trial court had called for the proceeding before the Tahsildar for its perusal. The court has not considered the evidence brought on record that defendant No. 3 by way of sale deed bearing 3541 dated 24.8.1979 transfered the suit property in favour of the defendant Nos. 1 and 2. Learned counsel further submitted that the trial court has considered the effect of sale deed executed in 1982 and also point of limitation. It is further submitted that R.C.S. No. 495 of 1985 for declaration that the sale deed is null and void against the defendant No. 1 and 2 was filed by the defendant No.3 however, the said suit was dismissed. The lower appellate court has not considered the said aspect which was formed part of the judgment of the trial court. According to the leaned counsel, the order of the lower appellate court remanding the matter to the trial court without framing proper points for determination and without taking into consideration the documents and evidence on record, is impermissible in law. Learned counsel invited my attention to the various judgments of the Hon’ble Apex Court to contend that the remand order should not be passed so casually without properly appreciating the issues and without considering the evidence and documents on record. It is further submitted that the lower appellate 8 court has not considered the fact that the plaintiff retired from the firm and she accepted the amount of Rs.1,60,000/- by cheque from M/s. Nanded Development Syndicate Firm and other three partners have also retired and the partnership came to be extinguished on 3.5.1982 and therefore, the plaintiffs ceased to be the co-owners of the property. It is further argued that the impugned judgment and order is in contravention of the provisions of Order 41 Rule 23, 23A, 25 and 33 of C.P.C. In support of his contention, counsel invited my attention to the report judgments of the Supreme Court in the cases of State of T.N. Vs. S. Kumaraswamin and others, reported in AIR 1977 SC 2026, Ashwinkumar K. Patel Vs Upendra J. Patel and Ors. reported in AIR 1999 SC 1125, P. Purushottam Reddy and Anr. Vs. M/s. Pratap Steels Ltd. reported in AIR 2002 SC 771, Municipal Corporation, Hyderabad Vs. Sunder Singh, reported in 2008 (8) SCC 485, Godrej Rustom Karmani Vs. Hari Alidas Thadani and Ors. reported in 1990 (3) Bom. C.R. 587 and J. Arun Keshavrao Mone (Mane) and Ors. Vs. Ramesh Balvant Baxi and Anr. reported in (2006) (0) BCI 19 Relying on the aforesaid judgments, counsel for the appellant would submit that the this Appeal From Order deserves to be allowed. 6 On the other hand, learned senior counsel appearing for the concerned respondents submitted that it is not necessary for the lower 9 appellate court to formulate the points while remanding the matter back to the trial court. According to him, necessary additional two issues have been framed by the appellate court and based on those issues, the matter was remanded back. He further submitted that there are various pronouncements of this Court, which have taken view that it is not necessary for the lower appellate court to formulate the points. Learned senior counsel further submitted that the appellants herein have no concerned with the suit land and therefore, this Appeal From Order deserves to be dismissed. Counsel in support of his submissions heavily relied upon the reasons recorded by the lower appellate court while remanding the matter back to the trial court for fresh consideration. 7 I have given due consideration to the rival submissions of the counsel appearing for the parties. At the outset, it is necessary to take into consideration the provisions, under which this Appeal From Order is filed in this Court and to what extent this Court can interfere in the impugned judgment and order passed by the lower appellate Court. In the case of Narayanan Vs. Kumaran and others, reported in (2004) 4 SCC 26, the Hon’ble Supreme court has considered the provisions of Order 43 Rule 1(u) i.e. appeal from order under the provisions of section 104 of C.P.C. Order 43 Rule 1(u) reads thus:- 10 “43. (1) Appeals from Orders. - An appeal shall lie from the following orders under the provisions of Section 104 namely- (a) to (t) * * * (u) an order under Rule 23 or Rue 23-A of Order 41 remanding a case, where an appeal would lie from the decree of the appellate court.” In para 17 of the said judgment it is held thus:- “17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the appellate court instead of making an order of remand had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand were to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under Order 43 Rule 1 clause (u) should be heard only on the ground enumerated in Section 100. We therefore, accept the contention of Mr. T.L.V. Iyer and hold that the appellant under an appeal under Order 43 Rule 1 clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the lower appellate Court.” 11 Therefore, in the present case, this Appeal from order is required to be heard on the only grounds enumerated in Section 100 of C.P.C. In short, unless there is substantial questions of law falls for consideration of this court, this court is not suppose to entertain this appeal from order. This Court has to confine itself such facts, conclusions and decisions which have bearing on the order of remand and cannot canvass all the findings of the facts arrived at by the lower appellate court. 8 On perusal of the judgment and order of the lower appellate court, I find that the lower appellate court has not formulated any point for its determination. From para 1 to 5 the court has narrated the facts and arguments of the advocates appearing for the respective parties. The court has discussed the issues involved in the matter. From para 6 to 9 of the impugned judgment and whatever has been discussed in para 6 to 9 has been briefly summarized and the conclusions are noted in para 10 of the judgment. On perusal of para 6 of the judgment, it appears that the lower appellate court has recorded the submissions of the counsel for original plaintiff that entire oral and documentary evidence recorded by the trial court on behalf of the defendant Nos. 1 and 2 is against the pleading made by defendant Nos. 1 and 2 in their written statement. 12 In the same para, the court has observed that further even though there are pleading and evidence, an issue on the basis of Section 14 of the Partnership Act, is required to be framed and decided by the trial court. All these legal aspects have not been considered by the trial court. (emphasis supplied) In para 7 of the impugned judgment, the court has considered the argument of the advocate for respondent Nos. 1 and 2 i.e. the appellants herein. In para 8, the Court has observed that from scrutiny of the written statement, it appears that defendants have denied all allegations by the plaintiff in their written statement. Further in para 7 of the written statements, defendants also submitted that the said firm was rightful owner and possessor of the said land for all intent and purpose and this fact is borne out by substantial documentary proof. It is further pleaded in para 8 of the written statement that as a matter of fact after formation of registered partnership firm M/s. Nanded Development Syndicate, the plaintiff and her co-purchasers have ceased their right and interest which accrued to them by registered sale deed in the year 1967. The court further observed that from the scrutiny of written statement, it appears that defendants have not made out specific case that partnership firm was formed, what was agreement between the partners, what was the property thrown into the common stock at the business of partnership, what was the nature of the property and how it was acquired, what was the object and 13 intention to acquire the property. All these facts regarding the partnership, as alleged by the defendants, have not been pleaded in their written statement. However, from the evidence on record it appears that the defendants Nos. 1 and 2 want to show that there was partnership deed in between partners and plaintiffs were the partners of the firm. The property which was purchased in the name of the plaintiff and other co-owners was brought in common stock of the firm. Further how this property was acquired by the firm, subsequent transaction of the firm and the business of the firm and accordingly adduced the evidence. It appears that the defendants have not pleaded the facts in their written statements which was brought on record by their evidence. Further, when the plaintiff has taken objection that entire evidence is being adduced without pleading by defendants, the trial court has made it clear that at the time of judgment, the decision of this aspect will be given. It appears that while giving judgment lower court has not observed anything regarding the admissibility of the evidence. The lower appellate court reached to the conclusion that the defendants have brought evidence without pleading, objection was raised before the trial court and it was necessary by the trial court to decide that aspect. When the plaintiff has raised legal issue before the court that without pleading, inadmissible evidence is being admitted in the evidence then it was necessary for the lower court to scrutinize the objection raised by the plaintiff. However, it appears that the lower court has not given any 14 thought regrading the admissibility of the evidence while delivering the judgment. In para 9, the court further held that it appears from written statement that they have not made any specific case. However, on the basis of the stand taken in their written statement, whether the evidence adduced by them is admissible or not is required to be seen. If entire evidence is held inadmissible without pleading then the question of framing of other issue on the basis of Section 14 of the Partnership Act does not arise. However, if the evidence is held to be admissible on the basis of existing pleading then the issue on the basis of Section 14 of the Partnership Act is required to be framed and decided. 9 After hearing the parties and after discussion in para 6 to 9, in para 10 the Court held thus:- “10 I find that the lower court while giving the decision of the suit, has not touched the point of admissibility of the evidence adduced by defendants Nos 1 and 2, when plaintiff has raised objection that evidence of defendant Nos. 1 and 2 is without pleading it was necessary and the lower court to decide this point at the time of decision of the suit. The lower court was required to see whether the evidence adduced by the defendant 15 Nos. 1 and 2 is admissible or not and if it is admissible it was necessary if the lower court to frame issue as the case of defendants entirely rests on Section 14 of the Partnership Act. All these legal aspects have been apparently overlooked and not decided by the lower court, I find that the entire case is required to be remanded to the lower court to decide these two aspects which are legal. I find that the lower court has failed to determine the material issue that whether evidence adduced by the defendants Nos. 1 and 2 is admissible without pleadings. When apparently it appears that there are no pleadings, raised by the defendants Nos. 1 and 2 the judgment of the lower court is vitiated by the admission of inadmissible evidence. Under these circumstances, it appears to me that it will be proper to remand the case to the lower court so that the lower court can determine the issue whether the evidence adduced by the defendant Nos. 1 and 2 is admissible without pleadings and if it is admissible, it is necessary that the lower court should frame the issue according to provisions of Section 14 of the partnership Act.” (Emphasis supplied). 10 The lower appellate court on the aforesaid facts and findings has passed the following order;- I) The appeal is allowed. 16 II) The judgment and decree of the lower court is set aside. III) The suit is remanded to the lower court. IV) The lower court is directed to frame the following additional issues and decide the same according to law; i) Whether the evidence adduced by the defendants Nos. 1 and 2 is inadmissible for want of pleadings? ii) Whether the suit property was the property of firm as alleged by the defendants Nos. 1 and 2? V) Parties are at liberty to adduce any more evidence if they want. VI) In the facts and circumstances there is no order as to costs. (Emphasis supplied) 11 The trial court while entertaining the suit filed by the plaintiff framed as many as seven issues for its determination. The said issues 17 are as under:- i) Whether the suit in the present form is tenable? i-A) Whether the plaintiff alongwith three others is the co-owner of the suit field Survey No.50 of Asadullabad? ii) Whether a valid title in respect of the suit portion of the land has been passed over by the defendant No.3 in favour of the defendant Nos. 1 and 2? iiii) Whether the plaintiff is estopped from claiming the relief? iv) Whether the defendant No. 1 and 2 are in lawful possession of the suit land as the owners? v) Whether the suit claim is within limitation? vi) Whether the suit for the purpose of court fee and jurisdiction properly valued? vii) What order and decree? 18 After considering the issue Nos.1 to 7, the trial court dismissed the suit