1 917 ao.431.04 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 431 OF 2004 1 Smt.Laxmibai @ Hirabai Ganpatrao Hende (since deceased through her Legal Heirs), 1A) Shrimati Anandibai Jaysing Hande and others. ... Appellants Versus Smt. Yesabai Balku Patil and others. ... Respondents ----- Mr. P.D.Dalvi for the Appellants. ----- CORAM : A.S.OKA, J. DATE : 01 st April, 2011. ORAL JUDGMENT: 1 Called out for final hearing. 2 Heard the learned counsel appearing for the Appellants. None appears for the Respondents. 3 The Appellants are the legal representatives of the original plaintiff. The predecessor of the Appellants filed a suit for general partition and possession. The suit was contested by the Respondents by 2 917 ao.431.04 filing written statement. The trial Court framed the issues and after giving opportunity to the parties of adducing evidence, the suit was decreed and preliminary decree of partition was passed. The Respondents preferred an appeal. By the impugned order, the learned District Judge allowed the appeal and remanded the suit for fresh decision. 4 The learned counsel appearing for the Appellants submitted that in the appeal preferred by the Respondents, there was no application made by any of the parties for adducing the additional evidence. He submitted that there was no grievance made by the Respondents that the trial Court did not give any opportunity to them to adduce the evidence. He submitted that there was no warrant for passing an order of remand especially when none of the parties had applied for remand. His submission is that the Appellate Court ought to have decided the appeal on the basis of the material on record. 5 I have given careful consideration to the submissions. It must be stated here that the case made out by the original plaintiff is that 3 917 ao.431.04 the suit properties were ancestral properties. It is alleged that one Aba, who was the son of Raoji was the grand father of the original plaintiff. The said Aba had four sons and a daughter and the original plaintiff is the daughter of one of the four sons of the said Aba. It appears that there was some controversy whether the original plaintiff was the grand daughter of the said Aba. In fact, the Appellate Court has observed that the original plaintiff proved that she is the daughter of Dattu, but it cannot be said that she is the grand daughter of Aba. In paragraph No.9 of the impugned judgment, the Appellate Court observed thus: “9. It is the case of defendants, the Dattu was not relating to their family and one Bharmu was the son of Aba Ravaji Patil. It is significant to note that defendants have, not adduced, any documentary evidence, such as mutation entry, Gram Panchayat Record or the Revenue Record, to establish, the facts that, Aba Ravaji Patil died leaving behind four sons. And daughter including Bharama and not Dattu. In Civil suit, the matter is to be decided after considering the preponderance of probabilities., hence, it is expected from the defendants, that, they shall also prove their case. Moreover, the death extract, of father of plaintiff is not on record. In her oral testimony, she has disclosed, that her father died prior to 30 to 35 years. Her deposition has been recored on 13.9.2000. The death extract, of the plaintiff is also not produced by her, which is also a relevant document in order to decide as to whether, plaintiff is entitled for partition and separate possession in the property belonging to her father. In my opinion, the some more evidence is required to clarity the situation between the parties.” 4 917 ao.431.04 6 Apart from the aforesaid paragraph No.9, there are no reasons assigned as to why order of remand was required to be passed. This is not a case where the Respondents had applied for seeking permission to adduce additional evidence. The learned counsel appearing for the Appellants on instructions stated that even the Appellants do not desire to adduce evidence. In this view of the matter, the Appellate Court has committed a gross illegality by passing the order of remand. As none of the parties desired to produce additional evidence, the learned Judge ought to have decided the appeal on the basis of the material on record and there was no question of remanding the suit to the trial Court by directing the learned trial Judge to give opportunity to both the sides to adduce evidence. In fact, neither Rule 23 nor Rule 23-A of Order XLI of the Code of Civil Procedure, 1908 could have been invoked in the facts of the case. 7 Hence, the appeal must succeed and I pass the following order: 5 917 ao.431.04 i The impugned order dated 29 th December, 2003 is quashed as set aside ; ii The Civil Appeal No. 24 of 2001 is restored to the file of the District Court iii. The District Court will decide the appeal on its own merits on the basis of the available evidence on record ; iv. All contentions of the parties on merits of appeal are kept open ; v. The appeal is partly allowed on above terms with no order as to costs ; vi. Hearing of the appeal is expedited. [ A.S.OKA, J ]