{"id":105008,"date":"2010-10-27T00:00:00","date_gmt":"2010-10-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/2-tarunkumar-vs-age-62-years-on-27-october-2010"},"modified":"2018-10-09T16:34:22","modified_gmt":"2018-10-09T11:04:22","slug":"2-tarunkumar-vs-age-62-years-on-27-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/2-tarunkumar-vs-age-62-years-on-27-october-2010","title":{"rendered":"2 Tarunkumar vs Age 62 Years on 27 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
2 Tarunkumar vs Age 62 Years on 27 October, 2010<\/div>\n
Bench: S. S. Shinde<\/div>\n
                                         1\n\n\n               IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n                  APPELLATE SIDE, BENCH AT AURANGABAD\n\n\n\n\n                                                  \n                     APPEAL FROM ORDER NO. 43 OF 1994\n\n\n\n     1     Rameshkumar s\/o Balubhai Sukhadia\n\n\n\n\n                                                 \n           Age 42 years, Occ. Prop. Kailash\n           Bhavan Hotel, Vazirabad,\n           Nanded\n\n     2     Tarunkumar s\/o Balubhai Sukhadia,\n\n\n\n\n                                     \n           Age 44 years, Occ. And R\/o. As above            ...Appellants\n                      \n                        Versus\n\n     1     Kumwardevi w\/o Shamlal Rathor,\n                     \n           (Since died through L.Rs.)\n\n     1-A   Omprakash s\/o Shamlal Rathor,\n           Age 50 years, Occ. Lecturer,\n           R\/o. Near New Godavari Bridge,\n      \n\n           Old Mondha, Nanded\n\n     1-B   Gyanu s\/o Shamlal Rathod,\n   \n\n\n\n           Age 45 years, Occ. Service,\n           R\/o. As above\n\n     2     Premchand s\/o Bhagwandas Vekharia\n\n\n\n\n\n           Age 62 years, Occ. Business,\n           R\/o. Ambika Temple, Vazirabad,\n           Nanded                                          ...Respondents\n\n\n                                         .....\n\n\n\n\n\n     Mr. G.N. Chincholkar, advocate for the appellants\n     Mr. P.V. Mandlik, senior counsel, for respondent Nos. 1-A and 1-B\n                                         .....\n\n                                             CORAM: S. S. SHINDE, J.\n<\/pre>\n
                                     DATE OF RESERVATION
\n                                     OF JUDGMENT                         :15.10.2010<\/p>\n
                                     DATE OF PRONOUNCEMENT
\n                                     OF JUDGMENT                         :27.10.2010<\/p>\n
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\n                                          2<\/span><\/p>\n
     ORAL JUDGMENT :-\n<\/p>\n
     1     This appeal From Order is filed challenging the judgment and<\/p>\n
     order dated 1.9.1993 passed by the learned IIIrd Additional District<\/p>\n
     Judge, Nanded in Regular Civil Appeal No. 276 of 1992.                       The<\/p>\n
     appellants herein are the original defendant Nos. 1 and 2 in Regular<\/p>\n
     civil suit No. 222 of 1989 and the respondent No. 1 and 2 in Regular<\/p>\n
     civil Appeal No. 276 of 1992. The respondent No.1-A and 1-B herein<\/p>\n
     are the legal heirs of original plaintiff in R.C.S. No. 222 of 1989 and<\/p>\n
     appellant in R.C.A. No. 276 of 1992. The respondent No. 2 herein is<\/p>\n
     the original defendant and respondent in the proceedings before the<\/p>\n
     lower court.\n<\/p>\n
     2     The plaintiff filed the suit against defendants for declaration that<\/p>\n
     the sale deed number No. 3541 dated 24.8.1979 executed by<\/p>\n
     defendant No.3 in favour of the defendant Nos. 1 and 2 regarding suit<\/p>\n
     property is null and void and in effective and not binding on the<\/p>\n
     plaintiff. It is the case of plaintiff that the land Sr. No.50 admeasuring<\/p>\n
     26 acres 4 gunthas situated at village Asadullabag was purchased by<\/p>\n
     plaintiff and other three persons by registered sale deed dated<\/p>\n
     21.8.1967 from one Abdul Samad Khan. After purchase of land at Sr<\/p>\n
     No.50 the name of plaintiff and other purchasers were recorded in<\/p>\n
     revenue record of the S. No.50. It is contended that the defendant No.<\/p>\n
     3 has no concern with the suit land S. No.50 and plaintiff came to<\/p>\n
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\n                                          3<\/span><\/p>\n
     know that the defendant No.3 has executed sale deed in favour of<\/p>\n
     defendant No.1 and 2 regarding 12 paise share in the suit land. The<\/p>\n
     plaintiff came to know the execution of the sale deed by the defendant<\/p>\n
     No.3 in the year 1989, hence she applied for copy of the sale deed<\/p>\n
     and on getting the said copy, it was revealed to her that defendant No.<\/p>\n
     3 without having any right and title of ownership, has executed false<\/p>\n
     and factitious sale deed in favour of defendant Nos. 1 and 2. It is<\/p>\n
     further revealed from the said sale deed that so called firm purchased<\/p>\n
     S.No.50 on 21.8.1967.       It is contended that the partners Nanded<\/p>\n
     Development Syndicate were never possessors of the land Sr. No.50,<\/p>\n
     the provisions of Partnership Act are non convertible to the immovable<\/p>\n
     property. The contention taken by the defendant No.3 in the sale deed<\/p>\n
     dated 24.8.1979 that he has got 12 paise share in the suit land, is<\/p>\n
     totally misconceived and contrary to the provisions of Partnership Act.\n<\/p>\n
     It is contended that the plaintiff and other three purchasers are the joint<\/p>\n
     owners of the suit land and their ownership is not divested by any<\/p>\n
     instrument to defendant No.3. It is contended that defendant Nos. 1<\/p>\n
     and 2 have unauthorizedly occupied the land admeasuring 1 acres 20<\/p>\n
     gunthas out of S. No.50 and they have made out plots and further sold<\/p>\n
     some plots hence plaintiff also claimed relief of perpetual injunction<\/p>\n
     restraining the defendants from alienating the suit land and ultimately<\/p>\n
     plaintiff prayed that the plaintiff is owner of the suit land and defendant<\/p>\n
     Nos. 1 and 2 have no right or interest in the same by virtue of sale<\/p>\n
     deed executed by defendant Nos. 3, and prayed to decree the suit.\n<\/p>\n
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\n                                          4<\/span><\/p>\n
     3     The defendant No.3 was duly served. However, he failed to file<\/p>\n
     written statement hence, the suit is proceeded exparte against him.\n<\/p>\n
     The defendant Nos. 1 and 2 filed their written statement at Exh.21.\n<\/p>\n
     The defendant Nos. 1 and 2 have denied all the contentions of plaintiff<\/p>\n
     in toto. It is contended that the entire suit of plaintiff is false and<\/p>\n
     baseless. It is contended that at the instigation of defendant No.3,<\/p>\n
     plaintiff has filed the suit against defendants. It is also contented that<\/p>\n
     defendant No.3 had filed suit against defendant nos. 1 and 2 bearing<\/p>\n
     suit No. 495 of 1985 for declaration that the sale transaction is null and<\/p>\n
     void, however, that suit was ultimately dismissed. It is contended that<\/p>\n
     the plaintiff is aware of the transaction since beginning in between<\/p>\n
     defendant No.3 and defendant No. 1 and 2.             Further the revenue<\/p>\n
     authorities have given effect of the sale deed dated 24.8.1979 in the<\/p>\n
     revenue record and at that time the plaintiff challenged those entries<\/p>\n
     immediately. Hence, the plaintiff knew from the very beginning<\/p>\n
     regarding the sale deed dated 24.8.1979 and the suit therefore, is<\/p>\n
     beyond limitation. It is denied that the plaintiff came to know the fact of<\/p>\n
     sale deed in the month of February, 1989. It is contended that M\/s.\n<\/p>\n
     Nanded Development Syndicate is a partnership firm and the firm is<\/p>\n
     owner of land S. No.50.       It is contended that when the firm was<\/p>\n
     dissolved at that time defendant No.3 got the share in the suit land to<\/p>\n
     the extent of 12 paise share and accordingly defendant No.3 was<\/p>\n
     having title in the suit land and he was competent to sale the same to<\/p>\n
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\n                                          5<\/span><\/p>\n
     the defendant Nos. 1 and 2. It is contended that the plaintiff and other<\/p>\n
     purchasers are not joint owner of S. No.50. The plaintiff and other<\/p>\n
     purchasers have ceased their right in the suit land after formation of<\/p>\n
     registered partnership M\/s. Nanded Development Syndicate.                   It is<\/p>\n
     further contended that valuation made by the plaintiff for jurisdiction<\/p>\n
     and court fees purpose is totally wrong. The value of the suit land is<\/p>\n
     about Rs.1,50,000\/- and the plaintiff should have valued the suit<\/p>\n
     accordingly. It is contended that the plaintiff has not properly valued<\/p>\n
     the suit and paid court fees, It is contended that the defendant No.3<\/p>\n
     was owner of the suit land by virtue of the partnership deed and<\/p>\n
     defendant No.1 and 2 are the rightful owners of the suit land by virtue<\/p>\n
     of sale deed dated 24.8.1979. The plaintiff has no right and interest in<\/p>\n
     the suit land and ultimately prayed for dismissal of suit. On the basis of<\/p>\n
     the rival pleadings the trial court framed necessary issues as per Exh.\n<\/p>\n
     34 and after recording the evidence dismissed the suit.\n<\/p>\n
     4     Being aggrieved by the judgment and decree dated 16.7.1992 in<\/p>\n
     Regular Civil Suit No. 222 of 1989, passed by the learned Joint<\/p>\n
     C.J.S.D. Nanded, the respondent No.1 herein filed Regular Civil<\/p>\n
     Appeal No. 276 of 1992. The IIIrd Additional District Judge, Nanded<\/p>\n
     by his judgment and oder dated 1.9.1993 set aide the judgment and<\/p>\n
     decree of the trial court and the matter was remanded back to the trial<\/p>\n
     court thereby directing to frame some additional issues which formed<\/p>\n
     part of the order of the trial court. The Trial court was further granted<\/p>\n
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\n                                           6<\/span><\/p>\n
     liberty to adduce any more evidence if the party desires to do so. This<\/p>\n
     judgment and order of the lower appellate court dated 1.9.1993 is<\/p>\n
     under challenge in this Appeal From Order.\n<\/p>\n
     5     Learned counsel appearing for the appellant submitted that well<\/p>\n
     reasoned judgment and decree of the trial court has been set aside by<\/p>\n
     the lower appellate court without formulating any point for its<\/p>\n
     consideration and determination and without discussing the evidence<\/p>\n
     on record, the lower appellate Court remanded the matter back to the<\/p>\n
     trial court granting liberty to frame additional issues. According to the<\/p>\n
     counsel for the appellants, unless the lower appellate court framed the<\/p>\n
     necessary issues for its determination the remand was impermissible.\n<\/p>\n
     The appellate court has failed in its duties to decide the issue involved<\/p>\n
     by itself and remanded the matter back to the trial court. It is further<\/p>\n
     submitted that the mandate of Order 41 Rule 23, 23-A, 25 and 33 has<\/p>\n
     not been followed by the lower appellate court while remanding the<\/p>\n
     matter back to the trial court. It is further submitted that the trial court<\/p>\n
     framed the number of issues and arrived at a definite conclusion.\n<\/p>\n
     However, the lower appellate court has not considered all aspects of<\/p>\n
     the matter and by cryptic discussion, remanded the matter back to the<\/p>\n
     trial court. The learned counsel submitted that there is no discussion<\/p>\n
     whether the suit claim was within limitation or not?              There is no<\/p>\n
     discussion about issue 1-A, which was framed by the trial court. Lower<\/p>\n
     appellate court has also not considered that the trial court in para 26 of<\/p>\n
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\n                                         7<\/span><\/p>\n
     its judgment had discussed that the plaintiff had raised objection<\/p>\n
     before the Tahsildar when the defendant Nos. 1 and 2 have submitted<\/p>\n
     an application on 6.10.1982 to give effect to mutation in their favour of<\/p>\n
     12 paise share. The lower appellate court has also not considered that<\/p>\n
     the Tahsildar passed an order on 18.1.1985 and the trial court had<\/p>\n
     called for the proceeding before the Tahsildar for its perusal. The court<\/p>\n
     has not considered the evidence brought on record that defendant No.<\/p>\n
     3 by way of sale deed bearing 3541 dated 24.8.1979 transfered the<\/p>\n
     suit property in favour of the defendant Nos. 1 and 2.                Learned<\/p>\n
     counsel further submitted that the trial court has considered the effect<\/p>\n
     of sale deed executed in 1982 and also point of limitation. It is further<\/p>\n
     submitted that R.C.S. No. 495 of 1985 for declaration that the sale<\/p>\n
     deed is null and void against the defendant No. 1 and 2 was filed by<\/p>\n
     the defendant No.3 however, the said suit was dismissed. The lower<\/p>\n
     appellate court has not considered the said aspect which was formed<\/p>\n
     part of the judgment of the trial court.      According to the leaned<\/p>\n
     counsel, the order of the lower appellate court remanding the matter to<\/p>\n
     the trial court without framing proper points for determination and<\/p>\n
     without taking into consideration the documents and evidence on<\/p>\n
     record, is impermissible in law. Learned counsel invited my attention to<\/p>\n
     the various judgments of the Hon’ble Apex Court to contend that the<\/p>\n
     remand order should not be passed so casually without properly<\/p>\n
     appreciating the issues and without considering the evidence and<\/p>\n
     documents on record. It is further submitted that the lower appellate<\/p>\n
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\n                                          8<\/span><\/p>\n
     court has not considered the fact that the plaintiff retired from the firm<\/p>\n
     and she accepted the amount of Rs.1,60,000\/- by cheque from M\/s.\n<\/p>\n
     Nanded Development Syndicate Firm and other three partners have<\/p>\n
     also retired and the partnership came to be extinguished on 3.5.1982<\/p>\n
     and therefore, the plaintiffs ceased to be the co-owners of the<\/p>\n
     property. It is further argued that the impugned judgment and order is<\/p>\n
     in contravention of the provisions of Order 41 Rule 23, 23A, 25 and 33<\/p>\n
     of C.P.C. In support of his contention, counsel invited my attention to<\/p>\n
     the report judgments of the Supreme Court in the cases of State of<\/p>\n
     T.N. Vs. S. Kumaraswamin and others, reported in AIR 1977 SC<\/p>\n
     2026,     Ashwinkumar K. Patel Vs Upendra J. Patel and Ors.\n<\/p>\n
     reported in AIR 1999 SC 1125, P. Purushottam Reddy and Anr.\n<\/p>\n
     Vs. M\/s. Pratap Steels Ltd. reported in AIR 2002 SC 771, Municipal<\/p>\n
     Corporation, Hyderabad Vs. Sunder Singh, reported in 2008 (8)<\/p>\n
     SCC 485, Godrej Rustom Karmani Vs. Hari Alidas Thadani and<\/p>\n
     Ors. reported in 1990 (3) Bom. C.R. 587 and J. Arun Keshavrao<\/p>\n
     Mone (Mane) and Ors. Vs. Ramesh Balvant Baxi and Anr.\n<\/p>\n
     reported in (2006) (0) BCI 19<\/p>\n
             Relying on the aforesaid judgments, counsel for the appellant<\/p>\n
     would submit that the this Appeal From Order deserves to be allowed.\n<\/p>\n
     6       On the other hand, learned senior counsel appearing for the<\/p>\n
     concerned respondents submitted that it is not necessary for the lower<\/p>\n
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\n                                          9<\/span><\/p>\n
     appellate court to formulate the points while remanding the matter<\/p>\n
     back to the trial court. According to him, necessary additional two<\/p>\n
     issues have been framed by the appellate court and based on those<\/p>\n
     issues, the matter was remanded back. He further submitted that there<\/p>\n
     are various pronouncements of this Court, which have taken view that<\/p>\n
     it is not necessary for the lower appellate court to formulate the points.\n<\/p>\n
     Learned senior counsel further submitted that the appellants herein<\/p>\n
     have no concerned with the suit land and therefore, this Appeal From<\/p>\n
     Order deserves to be dismissed. Counsel in support of his<\/p>\n
     submissions heavily relied upon the reasons recorded by the lower<\/p>\n
     appellate court while remanding the matter back to the trial court for<\/p>\n
     fresh consideration.\n<\/p>\n
     7     I have given due consideration to the rival submissions of the<\/p>\n
     counsel appearing for the parties. At the outset, it is necessary to take<\/p>\n
     into consideration the provisions, under which this Appeal From Order<\/p>\n
     is filed in this Court and to what extent this Court can interfere in the<\/p>\n
     impugned judgment and order passed by the lower appellate Court.\n<\/p>\n
           In the case of Narayanan Vs. Kumaran and others, reported<\/p>\n
     in (2004) 4 SCC 26, the Hon’ble Supreme court has considered the<\/p>\n
     provisions of Order 43 Rule 1(u) i.e. appeal from order under the<\/p>\n
     provisions of section 104 of C.P.C. Order 43 Rule 1(u) reads thus:-\n<\/p>\n
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\n                                   10<\/span><\/p>\n
           “43. (1) Appeals from Orders. – An appeal shall lie from<\/p>\n
     the following orders under the provisions of Section 104 namely-\n<\/p>\n
           (a) to (t) * * *<\/p>\n
           (u)    an order under Rule 23 or Rue 23-A of Order 41<\/p>\n
     remanding a case, where an appeal would lie from the decree of<\/p>\n
     the appellate court.”\n<\/p>\n
     In para 17 of the said judgment it is held thus:-\n<\/p>\n
           “17.   It is obvious from the above rule that an appeal will
\n     lie from an order of remand only in those cases in which an<\/p>\n
     appeal would lie against the decree if the appellate court instead
\n     of making an order of remand had passed a decree on the<\/p>\n
     strength of the adjudication on which the order of remand was
\n     passed. The test is whether in the circumstances an appeal
\n     would lie if the order of remand were to be treated as a decree<\/p>\n
     and not a mere order. In these circumstances, it is quite safe to
\n     adopt that appeal under Order 43 Rule 1 clause (u) should be
\n     heard only on the ground enumerated in Section 100.                    We<\/p>\n
     therefore, accept the contention of Mr. T.L.V. Iyer and hold that
\n     the appellant under an appeal under Order 43 Rule 1 clause (u)
\n     is not entitled to agitate questions of facts. We, therefore, hold
\n     that in an appeal against an order of remand under this clause,
\n     the High Court can and should confine itself to such facts,
\n     conclusions and decisions which have a bearing on the order of
\n     remand and cannot canvass all the findings of facts arrived at
\n     by the lower appellate Court.”\n<\/p>\n
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\n                                          11<\/span><\/p>\n
           Therefore, in the present case, this Appeal from order is<\/p>\n
     required to be heard on the only grounds enumerated in Section 100<\/p>\n
     of C.P.C. In short, unless there is substantial questions of law falls for<\/p>\n
     consideration of this court, this court is not suppose to entertain this<\/p>\n
     appeal from order. This Court has to confine itself such facts,<\/p>\n
     conclusions and decisions which have bearing on the order of remand<\/p>\n
     and cannot canvass all the findings of the facts arrived at by the lower<\/p>\n
     appellate court.\n<\/p>\n
     8     On perusal of the judgment and order of the lower appellate<\/p>\n
     court, I find that the lower appellate court has not formulated any point<\/p>\n
     for its determination. From para 1 to 5 the court has narrated the facts<\/p>\n
     and arguments of the advocates appearing for the respective parties.\n<\/p>\n
     The court has discussed the issues involved in the matter. From para<\/p>\n
     6 to 9 of the impugned judgment and whatever has been discussed in<\/p>\n
     para 6 to 9 has been briefly summarized and the conclusions are<\/p>\n
     noted in para 10 of the judgment.\n<\/p>\n
           On perusal of para 6 of the judgment, it appears that the lower<\/p>\n
     appellate court has recorded the submissions of the counsel for<\/p>\n
     original plaintiff that entire oral and documentary evidence recorded by<\/p>\n
     the trial court on behalf of the defendant Nos. 1 and 2 is against the<\/p>\n
     pleading made by defendant Nos. 1 and 2 in their written statement.\n<\/p>\n
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\n                                         12<\/span><\/p>\n
     In the same para, the court has observed that further even though<\/p>\n
     there are pleading and evidence, an issue on the basis of Section 14<\/p>\n
     of the Partnership Act, is required to be framed and decided by the trial<\/p>\n
     court. All these legal aspects have not been considered by the trial<\/p>\n
     court. (emphasis supplied)<\/p>\n
           In para 7 of the impugned judgment, the court has considered<\/p>\n
     the argument of the advocate for respondent Nos. 1 and 2 i.e. the<\/p>\n
     appellants herein. In para 8, the Court has observed that from scrutiny<\/p>\n
     of the written statement, it appears that defendants have denied all<\/p>\n
     allegations by the plaintiff in their written statement. Further in para 7<\/p>\n
     of the written statements, defendants also submitted that the said firm<\/p>\n
     was rightful owner and possessor of the said land for all intent and<\/p>\n
     purpose and this fact is borne out by substantial documentary proof. It<\/p>\n
     is further pleaded in para 8 of the written statement that as a matter of<\/p>\n
     fact after formation of registered partnership firm M\/s. Nanded<\/p>\n
     Development Syndicate, the plaintiff and her co-purchasers have<\/p>\n
     ceased their right and interest which accrued to them by registered<\/p>\n
     sale deed in the year 1967. The court further observed that from the<\/p>\n
     scrutiny of written statement, it appears that defendants have not<\/p>\n
     made out specific case that partnership firm was formed, what was<\/p>\n
     agreement between the partners, what was the property thrown into<\/p>\n
     the common stock at the business of partnership, what was the nature<\/p>\n
     of the property and how it was acquired, what was the object and<\/p>\n
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\n                                        13<\/span><\/p>\n
     intention to acquire the property.     All these facts regarding the<\/p>\n
     partnership, as alleged by the defendants, have not been pleaded in<\/p>\n
     their written statement. However, from the evidence on record it<\/p>\n
     appears that the defendants Nos. 1 and 2 want to show that there was<\/p>\n
     partnership deed in between partners and plaintiffs were the partners<\/p>\n
     of the firm. The property which was purchased in the name of the<\/p>\n
     plaintiff and other co-owners was brought in common stock of the firm.\n<\/p>\n
     Further how this property was acquired by the firm, subsequent<\/p>\n
     transaction of the firm and the business of the firm and accordingly<\/p>\n
     adduced the evidence.      It appears that the defendants have not<\/p>\n
     pleaded the facts in their written statements which was brought on<\/p>\n
     record by their evidence.     Further, when the plaintiff has taken<\/p>\n
     objection that entire evidence is being adduced without pleading by<\/p>\n
     defendants, the trial court has made it clear that at the time of<\/p>\n
     judgment, the decision of this aspect will be given. It appears that<\/p>\n
     while giving judgment lower court has not observed anything regarding<\/p>\n
     the admissibility of the evidence. The lower appellate court reached to<\/p>\n
     the conclusion that the defendants have brought evidence without<\/p>\n
     pleading, objection was raised before the trial court and it was<\/p>\n
     necessary by the trial court to decide that aspect. When the plaintiff<\/p>\n
     has raised legal     issue before the court that without pleading,<\/p>\n
     inadmissible evidence is being admitted in the evidence then it was<\/p>\n
     necessary for the lower court to scrutinize the objection raised by the<\/p>\n
     plaintiff. However, it appears that the lower court has not given any<\/p>\n
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\n                                        14<\/span><\/p>\n
     thought regrading the admissibility of the evidence while delivering the<\/p>\n
     judgment.\n<\/p>\n
           In para 9, the court further held that it appears from written<\/p>\n
     statement that they have not made any specific case. However, on the<\/p>\n
     basis of the stand taken in their written statement, whether the<\/p>\n
     evidence adduced by them is admissible or not is required to be seen.\n<\/p>\n
     If entire evidence is held inadmissible without pleading then the<\/p>\n
     question of framing of other issue on the basis of Section 14 of the<\/p>\n
     Partnership Act does not arise. However, if the evidence is held to be<\/p>\n
     admissible on the basis of existing pleading then the issue on the<\/p>\n
     basis of Section 14 of the Partnership Act is required to be framed and<\/p>\n
     decided.\n<\/p>\n
     9     After hearing the parties and after discussion in para 6 to 9, in<\/p>\n
     para 10 the Court held thus:-\n<\/p>\n
                  “10   I find that the lower court while giving the decision<\/p>\n
           of the suit, has not touched the point of admissibility of the<\/p>\n
           evidence adduced by defendants Nos 1 and 2, when plaintiff<\/p>\n
           has raised objection that evidence of defendant Nos. 1 and 2 is<\/p>\n
           without pleading it was necessary and the lower court to decide<\/p>\n
           this point at the time of decision of the suit. The lower court was<\/p>\n
           required to see whether the evidence adduced by the defendant<\/p>\n
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\n                                         15<\/span><\/p>\n
           Nos. 1 and 2 is admissible or not and if it is admissible it was<\/p>\n
           necessary if the lower court to frame issue as the case of<\/p>\n
           defendants entirely rests on Section 14 of the Partnership Act.\n<\/p><\/blockquote>\n
           All these legal aspects have been apparently overlooked and<\/p>\n
           not decided by the lower court, I find that the entire case is<\/p>\n
           required to be remanded to the lower court to decide these two<\/p>\n
           aspects which are legal. I find that the lower court has failed to<\/p>\n
           determine the material issue that whether evidence adduced by<\/p>\n
           the defendants Nos. 1 and 2 is admissible without pleadings.\n<\/p><\/blockquote>\n
           When apparently it appears that there are no pleadings, raised<\/p>\n
           by the defendants Nos. 1 and 2 the judgment of the lower court<\/p>\n
           is vitiated by the admission of inadmissible evidence. Under<\/p>\n
           these circumstances, it appears to me that it will be proper to<\/p>\n
           remand the case to the lower court so that the lower court can<\/p>\n
           determine the issue whether the evidence adduced by the<\/p>\n
           defendant Nos. 1 and 2 is admissible without pleadings and if it<\/p>\n
           is admissible, it is necessary that the lower court should frame<\/p>\n
           the issue according to provisions of Section 14 of the<\/p>\n
           partnership Act.” (Emphasis supplied).\n<\/p><\/blockquote>\n
     10    The lower appellate court on the aforesaid facts and findings<\/p>\n
     has passed the following order;-\n<\/p>\n
           I)    The appeal is allowed.\n\n                                                ::: Downloaded on - 09\/06\/2013 16:34:57 :::<\/span>\n                                           16<\/span>\n\n\n\n\n                                                                           \n           II)    The judgment and decree of the lower court is set aside.\n\n\n\n\n                                                   \n           III)   The suit is remanded to the lower court.\n\n\n\n\n                                                  \n           IV)    The lower court is directed to frame the following\n\n<\/pre>\n
                  additional issues and decide the same according to law;\n<\/p>\n
                       ig  i)    Whether the evidence adduced by the\n                                 defendants Nos. 1 and 2 is inadmissible for\n                     \n                                 want of pleadings?\n\n\n<\/pre>\n
                           ii)   Whether the suit property was the property of<\/p>\n
                                 firm as alleged by the defendants Nos. 1 and<\/p>\n
                                 2?\n<\/p>\n
           V)     Parties are at liberty to adduce any more evidence if they<\/p>\n
                  want.\n<\/p>\n
           VI)    In the facts and circumstances there is no order as to<\/p>\n
                  costs.\n<\/p>\n
                  (Emphasis supplied)<\/p>\n
     11    The trial court while entertaining the suit filed by the plaintiff<\/p>\n
     framed as many as seven issues for its determination. The said issues<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                          17<\/span><\/p>\n
     are as under:-\n<\/p>\n
                 i)      Whether the suit in the present form is tenable?\n<\/p><\/blockquote>\n
                 i-A)    Whether the plaintiff alongwith three others is the<\/p>\n
                         co-owner of the suit field Survey No.50 of<\/p>\n
                         Asadullabad?\n<\/p><\/blockquote>\n
                 ii)<\/p>\n
                         Whether a valid title in respect of the suit portion of<\/p>\n
                         the land has been passed over by the defendant<\/p>\n
                         No.3 in favour of the defendant Nos. 1 and 2?\n<\/p><\/blockquote>\n
                 iiii)   Whether the plaintiff is estopped from claiming the<\/p>\n
                         relief?\n<\/p><\/blockquote>\n
                 iv)     Whether the defendant No. 1 and 2 are in lawful<\/p>\n
                         possession of the suit land as the owners?\n<\/p><\/blockquote>\n
                 v)      Whether the suit claim is within limitation?\n<\/p><\/blockquote>\n
                 vi)     Whether the suit for the purpose of court fee and<\/p>\n
                         jurisdiction properly valued?\n<\/p><\/blockquote>\n
                 vii)    What order and decree?<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                          18<\/span><\/p>\n
           After considering the issue Nos.1 to 7, the trial court dismissed<\/p>\n
     the suit with costs and decree was drawn accordingly. From perusal of<\/p>\n
     the judgment of the trial court, it appears that the trial court has dealt<\/p>\n
     with the issue regarding tenability of the suit. The issue of the co-\n<\/p>\n
     ownership, valid title in respect of the property, principle of estoppal,<\/p>\n
     lawful possession of the parties on the suit land, whether the suit claim<\/p>\n
     is within limitation, whether the suit for the purpose of court fees and<\/p>\n
     whether the jurisdiction is properly valued etc.<\/p>\n
           On careful perusal of the judgment and order of the lower<\/p>\n
     appellate court, it clearly reveals that the lower appellate court has not<\/p>\n
     formulated any point for its determination, has not discussed the<\/p>\n
     important points which were addressed before the trial court, has not<\/p>\n
     taken recourse to any evidence or documents while reaching to the<\/p>\n
     conclusion and while setting aside the impugned judgment and order<\/p>\n
     of the trial court. The matter is remanded back to the trial court and<\/p>\n
     parties are given liberty to adduce any more evidence, if they want.\n<\/p>\n
     (Emphasis supplied).\n<\/p>\n
     12    In the light of the above, the following substantial questions of<\/p>\n
     law would fall for consideration of this court;\n<\/p>\n
           i)     Whether the lower appellate court while setting aside the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                    19<\/span><\/p>\n
             judgment and decree of the trial court and remanding the<\/p>\n
             matter back to the trial court, has followed the scope of<\/p>\n
             Order 41 Rule 23, 23-A and 25 of the C.P.C. in the light<\/p>\n
             of various pronouncements of the Hon’ble Supreme court<\/p>\n
             taking a view that remand order cannot be passed as a<\/p>\n
             routine affairs but only in exceptional cases<\/p>\n<\/blockquote>\n
     ii)    Whether the lower appellate court failed to follow the<\/p>\n
            command of Order 41 Rule 23 and 23A that the remand<\/p>\n
            should not be made as routine and the appellate court<\/p>\n
            itself should decide the appeal one way or the other?\n<\/p><\/blockquote>\n
     iii)   Whether the lower appellate court has failed in its duties to<\/p>\n
            formulate the points, adjudicate the issues, consider the<\/p>\n
            rival submissions and take decision one way or the other<\/p>\n
            by itself without remanding the matter to trial court as<\/p>\n
            provided under sub-Sec. 2 of Section 107 of the C.P.C.?\n<\/p>\n
      iv)   Whether the lower appellate court has set aside the well<\/p>\n
            reasoned judgment and decree of the trial court without<\/p>\n
            formulating the points and addressing all issues which felt<\/p>\n
            for consideration of the trial Court?\n<\/p>\n
     At this juncture, it would be appropriate to refer the provisions of<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                         20<\/span><\/p>\n
     Order 41 Rule 23, 23-A and 25 of C.P.C., which reads thus:-\n<\/p>\n
                                ORDER XLI<\/p>\n
                      APPEALS FROM ORIGINAL DECREES<\/p>\n
          “1 to 22 * * *<\/p>\n
          23    Remand of case by Appellate Court- where the Court<\/p>\n
          from whose decree an appeal is preferred has disposed of the
\n          suit upon a preliminary point and the decree is reversed in<\/p>\n
          appeal, the Appellate Court may, if it thinks fit, by order remand
\n          the case, and may further direct what issue or issues shall be<\/p>\n
          tried in the case so remanded, and shall send a copy of its
\n          judgment and order to the Court from whose decree the appeal
\n          is preferred, which directions to re-admit the suit under its<\/p>\n
          original number in the register of civil suits, and proceed to<\/p>\n
          determine the suit; and the evidence (if any) recorded during the
\n          original trial shall, subject all just exceptions, be evidence during
\n          the trial after remand.\n<\/p><\/blockquote>\n
          23A Remand in other cases- Whether the Court from whose
\n          decree an appeal is preferred has disposed of the case<\/p>\n
          otherwise than on a preliminary point, and the decree is
\n          reversed in appeal and a re-trial is considered necessary, the
\n          Appellate Court shall have the same powers as it has under rule\n<\/p><\/blockquote>\n
          23.<\/p>\n
          24 * * *<\/p>\n
          25    Where Appellate court may frame issues and refer<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                        21<\/span><\/p>\n
          them for trial to Court whose decree appealed from.- Where
\n          the Court from whose decree the appeal is preferred has omitted<\/p>\n
          to frame or try any issue, or to determine any question of facts,<\/p>\n
          which appears to the Appellate Court essential to the right
\n          decision of the suit upon the merits, the Appellate Court may, if
\n          necessary, frame issues, and refer the same for trial to the Court<\/p>\n
          from whose decree the appeal is preferred, and in such case,
\n          shall direct such Court to take the additional evidence required;\n<\/p><\/blockquote>\n
                 and such Court shall proceed to try such issues, and shall
\n          return the evidence to the Appellate court together with its<\/p>\n
          findings thereon and the reasons therefor [within such time as
\n          may be fixed by the Appellate Court or extended by it from time<\/p>\n
          to time]<\/p>\n
           If the impugned judgment is perused it clearly emerges that the<\/p>\n
     lower appellate court has set aside the judgment and order of the trial<\/p>\n
     court in its entirety and not only on the preliminary points. The lower<\/p>\n
     appellate court has remanded the matter back to the trial court after<\/p>\n
     setting aside the judgment and decree of the trial court. Therefore, the<\/p>\n
     case in hand would fall under Section 23A of order 41 of C.P.C.\n<\/p><\/blockquote>\n
     However, Rule 23A provides same powers to the appellate court as it<\/p>\n
     has under Rule 23.       In the instant case, it is true that the lower<\/p>\n
     appellate court has formulated two additional issues and remanded<\/p>\n
     the matter back to the trial court for fresh consideration, however, in<\/p>\n
     entire discussion in para 6 to 10, the lower appellate court has not<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                         22<\/span><\/p>\n
     taken recourse to any evidence or documents as referred by the trial<\/p>\n
     court. The lower appellate court has also not considered all issues feltl<\/p>\n
     for consideration before the trial court.    The important issues like<\/p>\n
     whether the suit was within limitation, whether the trial court has<\/p>\n
     considered the sale deed and rights of the parties, revenue entries and<\/p>\n
     all other aspects which have been dealt with by the trial Court. Rule<\/p>\n
     23A of Order 41 contemplates appeal against the final judgment and<\/p>\n
     order of the trial court. When the appeal is filed challenging the<\/p>\n
     judgment and decree of the trial court, then it is the duty of the<\/p>\n
     appellate court to take into consideration the entire important points,<\/p>\n
     evidence and documents into account and then pass the necessary<\/p>\n
     order in the light of the provisions of Section 107 of C.P.C.. The<\/p>\n
     appellate court itself is competent to formulate the points, to address<\/p>\n
     the legal issue involved in the matter and also appreciate the<\/p>\n
     evidentiary value of the documents, the remand of the matter to the<\/p>\n
     trial Court was not warranted. The remand order causes delay in the<\/p>\n
     proceeding and also causes prejudice to the parties, as held by the<\/p>\n
     Hon’ble Supreme Court. From entire discussion in para 6 to 10 and<\/p>\n
     more particularly the conclusions reached in para 10 of the lower<\/p>\n
     appellate court, are too cryptic to set aside the entire judgment and<\/p>\n
     decree of the trial court. It appears that the lower appellate court has<\/p>\n
     considered the only effect of Section 14 of the Partnership Act and<\/p>\n
     contents of the Partnership deed and the written statement filed by the<\/p>\n
     defendants and set aside the well reasoned judgment and decree<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                          23<\/span><\/p>\n
     passed by the trial court. That apart, the trial court has given liberty to<\/p>\n
     the parties to adduce any more evidence, if they want. If the lower<\/p>\n
     appellate court was convinced that only two additional issues are<\/p>\n
     required to be framed and addressed by the trial court in that case<\/p>\n
     granting liberty to the parties to adduce any more evidence if they<\/p>\n
     want, is totally unwarranted.\n<\/p>\n
     13       While coming to another conclusion reached by the appellate<\/p>\n
     court that when there is no pleading, evidence against pleading is in<\/p>\n
     admissible. The lower appellate court has observed that even though<\/p>\n
     there are pleadings and evidence a issue on the basis of Section 14 of<\/p>\n
     the Partnership Act, is required to be framed and decided by the lower<\/p>\n
     Court. All these legal aspects have not been considered by the lower<\/p>\n
     Court.\n<\/p>\n
              The lower appellate court itself could have considered these<\/p>\n
     legal aspects. It was not that the lower appellate court was not<\/p>\n
     empowered to adjudicate these legal points. It was not necessary to<\/p>\n
     remand the matter back to the trial court on the legal aspects. Since<\/p>\n
     the appeal is a continuous proceeding of the suit, it was open for the<\/p>\n
     lower appellate court to exercise its jurisdiction and address the legal<\/p>\n
     issues and all other issues felt for its consideration by framing<\/p>\n
     necessary points and then decide the matter by one way or the other.\n<\/p>\n
     The lower appellate court can do so under sub section (2) of Section<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                          24<\/span><\/p>\n
     107 of C.P.C. However, the lower appellate court has failed in its<\/p>\n
     duties to exercise its jurisdiction vested in it and rather chosen easier<\/p>\n
     way to remand the matter back to the trial court.\n<\/p>\n
     14    While discussing the substantial questions of law 1, 2 and 3 it is<\/p>\n
     already observed that the lower appellate court has not addressed the<\/p>\n
     legal issues like whether the suit is filed within limitation, the issue of<\/p>\n
     co-ownership and whether the title in respect of the suit portion of the<\/p>\n
     land has been passed over in favour of original defendant Nos.1 and 2<\/p>\n
     i.e. appellants and whether the plaintiffs have established their claims<\/p>\n
     whether the appellants are in lawful possession of the property, all<\/p>\n
     these contentions are elaborately dealt with by the trial court.\n<\/p>\n
     15    In the above background it would be relevant at this juncture to<\/p>\n
     refer to some of the important judgment of the Hon’ble Supreme Court<\/p>\n
     on interpretation of Order 41 Rule 23, 23A and 25 of C.P.C. In the<\/p>\n
     case of State of T.N. (supra) the Hon’ble Supreme court held that it is<\/p>\n
     not permissible for the appellate court to brush aside the findings of<\/p>\n
     trial court without giving any reason, without any appreciation of<\/p>\n
     documents and without any appreciation of contentions of parties.\n<\/p>\n
           Yet in another case Ashwinkumar K. Patel (supra), the<\/p>\n
     Hon’ble Supreme Court in para 7 held thus:-\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                         25<\/span><\/p>\n
           “7.   In our view, the High court should not ordinarily remand a
\n           case under Order 41, Rule 23 of C.P.C. to the lower Court<\/p>\n
           merely because it considered that the reasoning of the lower<\/p>\n
           court in some respects was wrong. Such remand orders lead to
\n           unnecessary delays and cause prejudice to the parties to the
\n           case. When the material was available before the High court, it<\/p>\n
           should have itself decided the appeal one way or other. It could
\n           have considered the various aspects of the case mentioned in
\n           the order of the trial Court and considered whether the order of<\/p>\n
           the trial Court ought to be confirmed or reversed or modified. It
\n           could have easily considered the documents and affidavits and<\/p>\n
           decided about the prime facie case on the material available. In
\n           matters involving agreements of 1980 (and 1996) on the one<\/p>\n
           hand and an agreement of 1991 on the other, as in this case,
\n           such remand orders would lead to further delay and uncertainty.
\n           We are, therefore, of the view that the remand by the High<\/p>\n
           Court was not necessary.”<\/p><\/blockquote>\n
           Yet in another case P. Purushottam Reddy and another<\/p>\n
     (supra), the Hon’ble Supreme Court in para 10 held thus:-\n<\/p>\n
                 “10. ……. It is only in exceptional cases the Court may
\n           exercise the power of remand dehors the Rules 23 and 23A. To
\n           wit, the superior Court, if it finds that the judgment under appeal
\n           has not disposed of the case satisfactorily in the manner
\n           required by O. 20, R. 3 or O. 41, R. 31 of the CPC and hence it
\n           is no judgment in the eye of law, it may set aside the same and
\n           send the matter back for rewriting the judgment so as to protect
\n           valuable rights of the parties. An Appellate Court should be<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                            26<\/span><\/p>\n
              circumspect in ordering a remand when the case is not covered
\n              either by R. 23 or R. 23A or R. 25 of the CPC. An unwarranted<\/p>\n
              order of remand gives the litigation an undeserved lease of life<\/p>\n
              and therefore must be avoided.”<\/p><\/blockquote>\n
              Yet in another case of Municipal Corporation, Hyderabad vs<\/p>\n
     Sunder Singh (supra), the Hon’ble Supreme Court in para 11 held<\/p>\n
     thus:-\n<\/p>\n
                    “11. It is now well settled that before invoking the said
\n              provisions, the conditions precedent laid down therein must be<\/p>\n
              satisfied. It is further well settled that the court should loathe to
\n              exercise its power in terms of Order XLI Rule 23 of the Code of
\n              Civil Procedure and an order of remand should not be passed<\/p>\n
              routinely. It is not to be exercised by the appellate court only<\/p>\n
              because it finds it difficult to deal with the entire matter. If it
\n              does not agree with the decision of the trial Court, it has to
\n              come with a proper findings of its own. The appellate court<\/p>\n
              cannot shirk its duties.”\n<\/p><\/blockquote>\n
     16       Therefore, taking into consideration the provisions of Civil<\/p>\n
     Procedure Code, the powers of the lower appellate court and<\/p>\n
     discussion made herein above, in my opinion, the remand order by the<\/p>\n
     lower appellate court is not proper. The lower appellate court, as<\/p>\n
     stated herein above, has not formulated any points for its<\/p>\n
     consideration nor it has taken into consideration the legal aspects<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                           27<\/span><\/p>\n
     involved in the mater and without any basis has reached to erroneous<\/p>\n
     conclusion to set aside the well reasoned judgment and order of the<\/p>\n
     trial court.\n<\/p>\n
            However, since this Court has to consider this appeal From<\/p>\n
     Order only on the grounds enumerated in section 100 of C.P.C. and<\/p>\n
     should confine itself to such facts, conclusion and decision which have<\/p>\n
     bearing on the order of remand and cannot canvass all points of facts<\/p>\n
     arrived at by the lower appellate court, it is not possible for this court to<\/p>\n
     enter into appreciation or reappreciation of evidence. The Hon’ble<\/p>\n
     Supreme Court in the case of Narayanan Vs. Kumaran and others<\/p>\n
     (supra) held that the court cannot go into excruciating details of facts<\/p>\n
     and appreciate evidence while entertaining the Appeal from Order<\/p>\n
     under the provisions of Order 43 Rule 1(u) of C.P.C.\n<\/p>\n
     17     In the light of the discussions made in the foregoing paragraphs,<\/p>\n
     the impugned judgment and order dated 1.9.1993 passed by the IIIrd<\/p>\n
     Additonal District Judge, Nanded in Regular Civil Appeal No. 276 of<\/p>\n
     1992 is quashed and set aside. The Regular Civil Appeal No. 276 of<\/p>\n
     1992 is restored to its original file. The lower appellate court is directed<\/p>\n
     to formulate the necessary points for its determination\/consideration<\/p>\n
     and adjudicate all those points and decide the same by giving full<\/p>\n
     opportunity to the parties concerned. The lower appellate court is<\/p>\n
     directed to      take into consideration the necessary evidence,<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n                                         28<\/span><\/p>\n
     documents and legal provisions.     The parties are at liberty to agitate<\/p>\n
     relevant issues involved in the matter and the lower appellate court<\/p>\n
     can decide the matter itself.    With these observations, this Appeal<\/p>\n
     From order is allowed to the above extent and disposed of.\n<\/p>\n
     18    Civil application, if any, stands disposed of.\n<\/p>\n
     19    Record and proceeding of this case be sent back forthwith to the<\/p>\n
     concerned Court.\n<\/p>\n
                                             *****<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>
\n            29<\/span><\/p>\n
                ::: Downloaded on – 09\/06\/2013 16:34:57 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 2 Tarunkumar vs Age 62 Years on 27 October, 2010 Bench: S. S. Shinde 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-105008","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n2 Tarunkumar vs Age 62 Years on 27 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/2-tarunkumar-vs-age-62-years-on-27-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"2 Tarunkumar vs Age 62 Years on 27 October, 2010 - 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