IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.212 of 1988 1. (a) Langeshwar Singh, Son of Late Nanhaku Singh, resident of village – Barwan, P.O. - & P.S. Adhaura, District – Kaimur. (b) Mania Devi, D/o. Late Nanhaku Singh, resident of village – Saraigarh, P.O. & P.S. – Rabortsganj, District – Robartganj. (c) Budhia Devi, D/o Late Nanhaku Singh, Resident of village – Bhitari Bandh, P.S. – Maramchat, District – Rohtas. (d) Malti Devi, D/o Late Nanhaku Singh & W/o Dalgachan Singh, resident of village – Ramawatpur, P.S. – Bhagwanpur, P.O. – Jaidpur, District – Kaimur. 2. (a) Sugan Singh, S/o Late Bachanu Singh. (b) Budhiya Devi, D/o Bachanu Singh. 3. Ram Kawal Singh, ……Both nos. 2 and 3 are sons of Sitaram Singh, deceased, resident of village Barwan Khurd, Police Station – Adhaura, District – Rohtas ……. Plaintiffs …. 2nd Set – Respondents 2nd Set ….. Appellants. Versus 1. Sri Kishun Singh, 2. Lal Mohan Singh, 3. Lal Bachan Singh, All sons of Ram Janam Singh. 4. Ramjanam Singh, Son of Bhorik Singh, …… All nos. 1 to 4 are residents of village Barwan Khurd, Police Station Adhaura, District – Rohtas. …. Defendants. Ist set – Appellants …… Respondents Ist Set. 5. Ram Nath Singh, Son of Late Ram Swarup Singh. 6. Ram Dasia Devi, wife of Sahdeo Sah. 7. Satya Narain Singh. 8. Bas Narain Singh. 9. Saheb Singh. Defendants Nos. 8, 9 and 10 are sons of Ram Nath Singh. ….. All residents of village Barwan Khurd, Police Station Adhaura, District – Rohtas, but currently resident of village – Karam Chat, Police Station – Chenari, District – Rohtas. …. Defendants … respondents 3rd Set ….. Respondents … 2nd Set. 10. Jatan Singh, Son of Gopal Singh, deceased. 11. Mossomat Kaushalya Devi, Wife of Late Matan Singh. 12. Upadhya Singh minor son of Late Matan Singh, through his mother Mossomat Kaushalya Devi. 13. Jirawat Kumari, minor daughter of late Matan Singh, through her mother Mossomat Kaushalya Devi. 2 …. All Nos. 11 to 14 are residents of village Barwan Kalan, Police station Adhaura, District – Rohtas. 14. Sheo Kumar Singh, Son of Dhora Singh, deceased, resident of village Barwan Kalan, Police Station Adhaura, District – Rohtas. Defendants 4th set – respondents 4th Set …. Respondents 3rd Set. 15. Bigni daughter of Dhora Singh, resident of village Barwan Kalan, Police Station Adhaura, District – Rohtas, at present residing at village Gamunar, Police Station – Adhaura, District Rohtas. .. Defendants 5th Set – Respondents .. 5th set .. Respondents 4th Set. ---------- 32/ 08.11.2010 Heard learned counsel for both the parties. 2. This miscellaneous appeal is directed against the order dated 1st August, 1988 passed by Sri Shyama Prasad Singh IXth Additional District Judge, Rohtas at Sasaram by which he has set aside the judgment and decree passed by the learned lower court and remanded the case back to the lower court to decide the question of abatement and to dispose of the suit in accordance with law. 3. However, the fact that the plaintiff-respondent- appellant filed a suit for partition of the joint family property in which the original appellants here Nanhku Singh, Bacchu Singh and Ram Kebal Singh were plaintiff no. 1, 2 and 3 in the original plaint and one Ramswaroop Singh was plaintiff no. 4 and the suit was filed for partition to the extent of 1/3rd share of the plaintiff no. 2 and 3 and 1/3rd share of the plaintiff no. 4 and further that the defendant has no right, title and share in 3 the suit property. It was further prayed in the suit that if it is found that the plaintiff has been dispossessed by the defendants then the plaintiff be put in possession. 4. The case of the defendant is that the suit is not maintainable, barred by limitation and no cause of action arises denying the claim of the plaintiff on merits and asserting that the plaintiff has no right, title and possession over the suit land. 5. On the pleading of the parties, the trial court framed altogether eleven issues. Both the parties adduced oral and documentary evidence and after hearing the parties the suit was decreed holding that the plaintiff first parties have got 1/3rd share. The plaintiff second party i.e. plaintiff no. 2 and 3 are entitled to 1/3rd share and further Ramswarath, plaintiff no. 4 has got 1/3rd share and has got the right, title and possession of the plaintiff and further held that the defendant have no right, title or possession over the suit property. However, against the judgment and decree of the trial court an appeal was preferred by the defendants in the first appellant court. One the grounds in appeal before the first appellate court was that the plaintiff no. 4 Ramswaroop Singh died during the pendecny of the suit in the year 1984 itself leaving behind his widow and daughter. However, in spite of the averment made 4 in the memo of appeal presented before the first appellate court by the defendant appellant, no step was taken to substitute the heirs of Ramswaroop Singh the deceased plaintiff no. 4 by the plaintiff respondent in the first appellate court. The defendant appellant before the first appellate court raised the issue of abatement. The plaintiff respondent who is appellant before this court refuted the fact that the plaintiff no. 4 died in 1984 as alleged by the defendant appellant. However, asserted that Ramswaroop Singh plaintiff no. 4 did not die in 1984 but died in January, 1986 after passing of the judgment and decree in the Title Suit No. 07 of 1997 out of which this appeal arises and hence asserted that since Ramswaroop Singh died after passing of the judgment in Title Suit No. 07 of 1997 so there is no abatement. 6. The appellate court in the impugned judgment taking into consideration the averment made in paragraph no. 8 and 9 of the memo of appeal filed before the first appellate court that Ramswaroop Singh died in 1984 leaving behind his widow and daughter but they were not impleaded as a party and hence the judgment passed by the trial court without substituting the heir of the deceased Ramswaroop Singh as plaintiff no. 4 and hence the judgment and decree passed in 5 favour of Ramswaroop Singh is a nullity as passed against a dead person and further held that since the legal representative has not been substituted or no petition for substitution was filed within time nor any petition for setting aside the abatement has been filed and hence a valuable right has accrued to the appellant if Ramswaroop Singh died actually in April, 1984 and further observed that if Ramswaroop Singh died in April, 1984 then the judgment and decree dated 20.01.1986 and 30.10.1986 becomes illegal and hence observed that in such a circumstance the date of the death of Ramswaroop Singh plaintiff no. 4 needs to be proved and it requires evidence of the parties and hence considered whether the appellate court will go into the evidence to decide the issue and held that the court should not take a hypertechnical approach and relied upon decision reported in AIR 1966 Patna page 323 (Gurucharan Singh & Others V. Gorakhnath Singh & Others) and AIR 1971 Patna page 431 (Ramnaresh Singh & Others Vs. Ramlal Rai & Others) where it has been held that the trial court without substituting the legal representative of the deceased as a party cannot pass a decree and held that the appellate court has not decided the question of abatement and trial court is competent to decide the question of abatement 6 and on this ground set aside the judgment and decree of the lower court holding that the judgment and decree passed without substitution of the legal heirs of the deceased plaintiff no. 4 cannot be held to the legal and justified and after setting aside the judgment and decree of the lower court remanded back the case to the trial court to decide the question of abatement and to dispose of the suit in accordance with law. 7. Learned counsel for the appellant, however, contended that the learned appellate court taking into consideration the fact that in the memo of appeal it has been asserted that the plaintiff no. 4 died in 1984 and hence contended that the decree was passed in favour of a dead person. However, the plaintiff asserted that the deceased died in 1986 after the judgment and if the deceased did not die in 1984 and died in 1986 then there is no question of abatement. However, the learned appellate court did not go into the question of deciding the fact whether the deceased died in 1984 or 1986 and without holding that the deceased died in 1984 set aside the judgment and decree of the trial court on the ground that if the plaintiff no. 4 would be found to have died in 1984 then the judgment is in favour of a dead person and is not sustainable without being substituted by the heir. However, the 7 learned appellate court did not consider that if it is found that the deceased died in 1986 after the judgment then there will be no question of any abatement or onus for substitution is not on the plaintiff but on the defendant appellant. However, the defendant has already in the memo of appeal submitted and hence contended that unless a finding is recorded holding that the deceased died in 1984 the judgment and decree of the trial court on the issues framed and a finding recorded cannot be set aside to remand the case without going into the reasoning and set aside the judgment and decree without giving a reason to reverse the finding. 8. It has further been contended that the decree in favour of a dead person cannot result in setting aside the decree and has relied upon decision reported in 1986 BLJR 173 (Tetar Devi & Ors. Vs. Buchia & Ors.). 9. The suit was filed for declaration of title and recovery of possession. The plaintiff no. 2 died while the suit was pending in trial. The suit was decreed even without substituting the heirs. The appeal was filed by defendant and the plaintiff was placed as respondent. The appeal filed before the Hon’ble High Court. The heirs of the deceased plaintiff no. 3 substituted and noticed the only ground are that the appeal 8 and suit abated because the decree was passed in favour of the dead person and it was held that the decree need not be set aside. It is only in case the decree is passed against a dead person that such question arise and that too such decree is voidable at the instance of the heir of the deceased party. They cannot either refuse to contest the decree or they can be made parties at any stage of the proceeding and it cannot be done in this court or the matter be remanded to the lower court for this purpose and the High Court relied upon decision reported in 1979 SC 1393 (N. Jayaram Reddi & Anr. V. The Revenue Divisional Officer & Land Acquisition Officer, Kurnool) and distinguished the decision reported in AIR 1971 Patna 431 (Ramnaresh Singh & Others V. Ramlal Rai & Others) and AIR 1966 Patna 323 (Gurucharan Singh & Others V. Gorakhnath Singh & Others) as these are the cases in which the decree was passed without substituting the heirs of the defendants and hence contended that the case of the death of the defendant may lie on different footing as without substituting the heirs of the defendant amongst to proceeding a court ex parte. 10. Hence, on the basis of the submission the question for consideration is whether the order setting aside the judgment and decree and remanding the case for inquiry 9 whether the plaintiff no. 4 died during the pendency of the suit in the year 1984 or in 1986 after the judgment is sustainable in law. 11. However, the appellant has assailed the impugned orders on two ground, first is that the learned appellate court set aside the judgment and decree of the trial court without going into the question whether the finding recorded by the trial court on the issue suffer from any infirmity and further even without holding that the plaintiff no. 4 died in 1984 during the pendency of the suit and hence setting aside the decree and remanding the case is not sustainable without holding that the finding recorded by the trial court suffer from infirmity and requires to be reversed and a re-trial is necessary and even without holding that the plaintiff no. 4 died in the year 1984 irrespective of the finding recorded by the appellate court. 12. The second point raised is quite independent of the first that even if assuming that the plaintiff no. 4 died in the year 1984 then question for consideration is whether judgment and decree passed in favour of the dead person is a nullity and set aside. 13. However, the order of remand is guided under 10 Order XLI Rule 23 and 28 of the C.P.C. Order XLI Rule 23 provides that if a suit has been disposed on preliminary point and decree is reversed in appeal by the appellate court, the appellate court may remand the case. Order XLI Rule 23 (A) provides that when the case is decided other than on preliminary issue and the judgment and decree is reversed in appeal and re-trial is considered necessary, the appellate court shall have same powers as it has under Order XLI Rule 23 of the C.P.C. Order XLI Rule 24 provides that if there is evidence on record sufficient to enable the appellate court to pronounce the judgment, the appellate court may, after resettling the issues, if necessary, finally determine the suit. Order XLI Rule 25 provides that where the trial court 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 trial court and direct the trial court to take additional evidence required and the trial court shall proceed to try such issue and shall return the evidence to the appellate court together with its finding thereon and the reasons therefor and Order XLI Rule 26 provides that such evidence and findings shall form part of the 11 record in the suit; and either party may, within a time to be fixed by the appellate court, present a memorandum of objections to any finding and the appellate court after the expiry of the period shall proceed to determine the appeal. Order XLI Rule 27 permits the appellate court to take additional evidence if the conditions mentioned in Order XLI Rule 27 are satisfied and the appellate court may allow such evidence or document to be produced or witness to be examined and Order XLI Rule 28 provides mode of taking additional evidence. The appellate court may take either such evidence or direct the court from whose decree the appeal has been preferred i.e. trial court, to take such additional evidence and send it to the appellate court. 14. Hence, taking into the scheme of the remand if a case is decided on preliminary issue and if the finding recorded by the trial court on preliminary issue is reversed then the case may be remanded under Order XLI Rule 23 of the C.P.C. However, this is not the case in the present fact and circumstance as the case has not been disposed of by trial court on preliminary issue. Order XLI Rule 23 (A) of the C.P.C, however, provides that if the case has been decided otherwise than on preliminary issues i.e. the case has been decided on 12 merits on all the issues and the decree is reversed in appeal and re-trial is considered necessary then case can be remanded. However, the word reverse implies that the appellate court ought to have gone into the reasoning of finding recorded by the appellate court and come to a finding that findings on issue are not sustainable and give reasons for the same. 15. However, the appellate court did not go into the question of the finding recorded by the trial court as to whether the finding recorded by the trial court is legal or nor or illegal and without going into the question of the finding recorded by the trial court merely proceed on the statement made in paragraph 8 and 9 of the memo of appeal that the plaintiff no. 4 died in 1984 during the pendency of the suit which was refuted by the respondent during the pendency of the appeal asserting that the plaintiff no. 4 died after the judgment and prior to the filing of the appeal. However, the trial court did not go into the question of fact to decide whether the plaintiff no. 4 died in the year 1984 or 1986 and set aside the judgment and decree on the ground that if the plaintiff no. 4 Ramswaroop died in 1984. The judgment and decree dated 20.01.1986 and 30.01.1986 becomes illegal and in such circumstance the date of death of plaintiff no. 4 Ramswaroop 13 requires to be proved for which recording of evidence of the parties is essential. 16. Hence, the appellate court misdirected itself in setting aside the judgment and decree without going into the question about the legality of the finding recorded by the trial court or even without coming to conclusion whether the plaintiff no. 4 died in the year 1984 but mere on supposition that if the plaintiff died in 1984 then the suit may have been abated and set aside the judgment and decree and remanded the case. However, Order XLI Rule 23(A) provided that when the appellate court reversed the decree in appeal and retrial is considered necessary then the appellate court may have the power to remand a case as per under Order XLI Rule 23 A of the C.P.C. 17. However, under the facts and circumstance of the case, the appellate court without coming to a stage of holding whether the finding recorded by the trial court is sustainable or not and without coming to a conclusion that the plaintiff no. 4 died in 1984 reversed the finding and hence set aside the judgment and remanded the case before coming to stage where he has been given the jurisdiction to set aside the judgment and hence the order of remand and setting aside the judgment and 14 decree passed by the trial court is not in consonance with Order XLI Rule 23 (A) of the C.P.C. which empowers the trial court to remand a case after reversing the decree in appeal, however, the power of remand when the decree in appeal has been reversed connotes that for reversing the judgment, the appellate court must come to a finding that the finding recorded by the trial court is not sustainable for which reasons are required to be assigned but the learned lower court without coming to a stage of holding that finding recorded by the trial court is sustainable or not and hence the impugned order setting aside the judgment and remanding the case is not in consonance with law and the mandate required under Order XLI Rule 23 A and hence is not sustainable in law and required to be set aside. 18. However, the trial court if found that an important issue is left over or that the learned lower court from whose decree the appeal is preferred has omitted to frame or try an issue or to determine any question of fact which appear to the appellate court essential for the right decision of the suit upon merits then the appellate court may have proceeded under Order XLI Rule 25 to frame the issue and refer the same for trial to the trial court from whose decree the appeal is preferred 15 and with a direction to take the additional evidence and the trial court may have proceeded to try such issue and would have returned the evidence together with its finding to the appellate court and then the appellate court may have proceeded to decide the appeal. 19. The appellate court may have another option under Order XLI Rule 27 of the C.P.C to take additional evidence in the interest of justice but instead of proceeding under Order XLI Rule 25 of the C.P.C or Order XLI Rule 27 of the C.P.C, as the case may be, the appellate court set aside the judgment and decree of the trial court without going into the finding recorded by the trial court and merely on a ground taken in memo of appeal set aside the judgment and decree of the trial court which was decided by the trial court without going into the merits. 20. However, the next point raised that the plaintiff no. 4 died during the pendency of trial though appellant assert the deed after the judgment of trial court and hence even if assumed that he died even during the pendency of appeal then in view of the decision reported in 1986 BLJR 173 (Tetar Devi & Others & Buchia & Others) the judgment and decree passed in faovur of the dead person need not be set aside and it is only 16 in the case decree is passed against the dead person then the decree is voidable at the instance of the heirs of the deceased parties and the decision reported in AIR 1966 Pat. 323 (Supra) and AIR 1971 Pat. 431 (Supra) are with regard to the death of defendants i.e. when a decree is passed against a dead person. 21. However, having regard to the facts and circumstances, since the question raised are based on the question whether the plaintiff no. 4 died in 1984 or 1986 but without holding that the deceased died in 1984, the setting aside the judgment and decree on the ground is not sustainable and the impugned order setting aside the judgment and decree and remanding the case is not sustainable as the order of remand is only permissible under Order XLI Rule 23 (A) of the C.P.C and the impugned order passed without going into the merits of the finding recorded by the trial court to reverse the judgment and decree in appeal is not sustainable and further without holding whether the plaintiff died in 1984 and hence the appellate court has proceeded to set aside the judgment and hence has violated the mandate under Order XLI Rule 23 of the C.P.C. 22. The trial court may have proceeded under Order XLI Rule 25 of the C.P.C to frame an issue and may have 17 referred the matter to the trial court or may proceed under Order XLI Rule 25 of the C.P.C if the condition so required are fulfilled but is not permitted to proceed under Order XLI Rule 23 (A) of the C.P.C and hence the impugned order is set aside and hence the appeal is allowed. The case sends down to lower appellate court to dispose off the case in accordance with law. Kundan (Gopal Prasad, J.)