Miscellaneous Appeal No. 378 of 2003 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.378 of 2003 ====================================================== 1. Parshuram Sharma son of Late Tapshi Sharma 2. Janki Devi, widow of Late Tapshi Sharma 3. Rambha Devi D/o Late Tapshi Sharma All residents of village- Raghunathpur P.S. Paroo, District- Muzaffarpur Plaintiffs .... .... Respondents …. …. Appellants Versus 1. Lal Narain Sharma son of Late Kapideo Sharma, resident of village- Raghunathpur, P.S. Paroo, District-Muzaffarpur Defendant.... ....Appellant…. ….Respondent 1st set 2. Shyam Narain Sharma 3. Nav Nit Sharma , both sons of Lal Narain Sharma, both residents of village-Raghunathpur, P.S. Paroo, District-Muzaffarpur 4. Smt. Nira Devi w/o Shri Shambhu Singh 5. Smt. Suman Devi w/o Shri Amar Nath Singh 6. Smt. Sunita Devi w/o Shri Tarkeshwar Singh 4 to 6 are residents of village & P.O. Chhap, District-Muzaffarpur 7. Sunita Kumari S/o Late Deonath Sharma 8. Bacha Sharma son of Late Mishri Sharma 9. Braj Bhushan Sharma S/o Late Baidyanath Sharma 10.Awani Kumar S/o Braj Bhushan Sharma 11.Shyam Kishore Sharma 12. Baban Sharma 13.Dinesh Sharma, sons of Late Denonath Sharma 14. Manoj Sharma 15. Manish Sharma, sons of Bacha Sharma 7 to 15 residents of village-Raghnathpur, P.S. Paroo, District- Muzaffarpur Defendants…. ….Respondents…. ….Respondents 2nd set ====================================================== Appearance: For the Appellant/s : Mr. Abhimanyu Sharma, Adv. For the Respondent/s : Mr. Shashi Shekhar Dwivedi, Sr. Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 16. 11-12-2013 This appeal under Order 43 rule 1(u) of the Code of Civil
Legal Reasoning
Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 2 Procedure (hereinafter referred to as „the Code‟) is directed against the judgment and decree dated 28.06.2003 passed by the 1st Additional District and Sessions Judge, Muzaffarpur in Partition Appeal No. 10 of 1995, whereby the appellate court below has set aside the judgment and decree dated 14.12.1994 / 6.3.1995 passed by Sub Judge-VIII, Muzaffarpur in Partition Suit No. 162 of 1986, whereby the suit has been decreed. The plaintiffs are before this Court against the impugned judgment and decree. By the very nomenclature the suit in question was filed for partition. Upon completion of pleadings nine issues were framed of which issue nos. 8 and 9 are the core issues and run as follows:- “(viii) Whether there is unity of title and possession in respect to the disputed land amongst the parties to the suit? (ix) Whether the plaintiffs are entitled to a decree for partition of the properties in Schedule- I and II of plaint to the extent of half share?” Whereas it was the contention of the plaintiffs that there was a unity of title between the parties who were coming from common ancestors, it was the contention of the defendants that there was a previous partition between the parties and the first of Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 3 which took place as back as in the year 1915 followed by another partition in the year 1960 and thus the families got separated insofar as the suit property is concerned. Relying upon a survey entry which was in the name of three of the co-sharers, it was sought to be canvassed by the defendants that there was no unity of title and possession in respect of the disputed properties. The trial court on the basis of the pleadings of the contesting parties and the evidence led on their behalf decreed the suit on contest in favour of the plaintiff and the preliminary decree was passed allowing partition to the extent of half share in favour of the plaintiffs. The defendants being aggrieved by the judgment and decree passed by the trial court dated 14.12.1994 / 06.03.1995 in Partition Suit No. 162 of 1986 preferred Partition Appeal No. 10 of 1995 and the appellate court by the impugned judgment and decree dated 28.06.2003 reversing the judgment and decree of the trial court has remitted the matter to the trial court for adjudication after framing issues afresh and on the basis of materials on record. The plaintiffs being aggrieved are in appeal before this Court.
Legal Reasoning
I have heard Mr. Abhimanyu Sharma, learned counsel for Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 4 the plaintiffs who are in appeal before this Court and Mr. Shashi Shekhar Dwivedi, learned Senior Counsel appearing for the contesting defendants. The only issue posed before this Court requiring an adjudication is whether for the reasons attributed in the impugned judgment and decree of the appellate court, a remand under Order 41 rule 23A was in accordance with the legal position or the issue could have been resolved by exercise of power under Order 41 rule 25 of the Code. Perusal of the judgment and decree passed by the appellate court manifests that primarily on two issues that the matter has been remitted to the trial court namely; (a) Whether there was a previous partition by metes and bounds between the parties and; (b) Whether the Revisional survey entry reflects a previous partition. The opinion of the appellate court was that the lower court had failed to frame these issues which were germane to the contest. Seeking answer on the issues the judgment and decree of the trial court was reversed and the matter remanded. But while doing so the appellate court has required the trial court to give its adjudication on the basis of the materials on record. Mr. Abhimanyu Sharma while contesting the impugned Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 5 judgment and decree has submitted that since the remand is for an adjudication on issues framed by the appellate court on the basis of the materials on record, such exercise could well have been done by the appellate court itself instead of remanding the suit and more particularly when no infirmity has been found by the appellate court as regarding the adjudication on other issues. In short, it is the submission of Mr. Sharma that the appellate court has shirked from its responsibility by remanding the suit. The argument of Mr. Sharma has been contested by Mr. Dwivedi to submit that since it has all along been the contention of the defendants that there was a previous partition unless the issue was so framed, the defendants were prejudiced on this count. Learned counsel has relied upon a judgment of this Court reported in AIR 1957 Patna 398 (Sital Singh and others vs. Ram Prasad Singh and others) to submit that unless such issue could have been framed by the trial court, there was no occasion for the defendants to prove the same and which has seriously prejudiced the case of the defendants. I have heard learned counsel for the parties and perused the records. The only issue which strikes at the root of the contest is whether a non-framing of the two issues relatable to previous Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 6 partition and the effect of survey entry is such that it required a remand. Issue no. 8 framed by the trial court relatable to unity of title and possession of the parties over the suit property. This single issue is a wholesome issue taking into its fold all subsidiary issues arising therefrom including the two framed by the appellate court. Had the plaintiffs failed to prove its case regarding unity of title and possession perhaps the two issues so framed by the appellate court would have gained relevance but since on the basis of the pleadings and the evidence led by the contesting parties, the trial court upheld the contention of the plaintiff that there was a unity of title and possession amongst the parties, the two issues so framed by the appellate court becomes insignificant. Even otherwise a non-framing of issue is not fatal in all circumstances more particularly where the parties to a contest are aware of the issues involved in the same. As I have observed at the outset whereas it was the contention of the plaintiffs that there was a unity of title and possession, it has all along been the case of the defendants that there was a previous partition between the parties and thus the parties to the contest had approached the lis with open eyes and led their respective evidence in support of their stand. In such Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 7 circumstance a non-framing of issue on previous partition is neither fatal nor prejudicial to either of the parties. Reference in this regard is made to the Apex Court judgment rendered in the case of Bachhaj Nahar vs. Nilima Mandal reported in AIR 2009 Supreme Court 1103. It stands well settled that where the parties to the contest have approached the lis with open eyes and have led evidence in support of their respective contention, a mere non- framing of an issue would not prove fatal. The case in hand is a clear case of abdication of responsibility by the appellate court below more particularly where no infirmity has been found by the appellate court as regarding the issues determined by the trial court. Apart from the fact that the evidence on record are sufficient to resolve the two issues so proposed by the appellate court, if at all the appellate court required such an answer, it could well have exercised the powers vested in it under Order 41 rule 25 of the Code especially where it requires the court below to adjudicate on the issues on the basis of the materials on record. For the reasons aforementioned, the judgment and decree impugned cannot be upheld and is accordingly set aside. The matter is remitted to the appellate court below with a direction to Patna High Court MA No.378 of 2003 (16) dt.11-12-2013 8 consider and dispose of the appeal expeditiously and preferably within six months from the date of receipt / production of a copy of this order without giving undue adjournment to either of the parties keeping in mind that it is an appeal of 1995. This appeal is allowed. S.Sb/- (Jyoti Saran, J)