Manoramabai Rayaba Chavan v. Gopaldas Narayandas Barshikar & Ors.

Heard both sides.

In both appeals judgment and order of remand passed on06.04.2023 in R. C. A. No. 626 of 2012 is questioned. Appealfrom Order No. 41 of 2024 is preferred by the original plaintiffNo. 4. Appeal from Order No. 61 of 2023 is preferred by thedefendant No. 1-A.

For the sake of convenience the parties in Appeal from Order No. 41 of 2024 are referred as per their original status inthe Trial Court. Appellant and original respondent Nos. 9 to 11are original plaintiffs in R.C.S. No. 725 of 2000, which was forpartition, separate possession and mesne profit. Therespondents are the defendants.

The controversy pertains to undivided joint family of Laxman Mehekarikar and his family members. On 21.05.1980sons of Laxman transferred 59/80th share by registered sale deedto the defendant No. 1 and 2. His daughters transferred 3/48thshare by distinct sale deed on the same day to the defendant No.1 and 2. Plaintiffs claimed to have purchased 21/80th share from Manik Laxman Mehekarikar on 06.11.1987. The contestingparties are the purchasers of the undivided share and they haverival claims for their ownership and possession over the sharesalienated to them. 3 ao 41.24 & ao 61.235.Plaintiffs contention is that the defendants unauthorizedlyoccupied the undivided joint family property, hence suit wasfiled. It is contested by the defendants on the ground that afterthe alienations on 21.05.1980 no salable interest was left for Manik to alienate 21/80th share to the plaintiffs.

The Trial Court dismissed the suit vide judgment dated26.09.2012. Being aggrieved R.C.A. No. 626 of 2012 was filed bythe plaintiffs. The Appellate Court found that the suit propertywas not properly described and the shares claimed by theparties were unable to be identified. It is further recorded thatappointment of Court Commissioner for measuring andidentifying the shares would resolve the controversy and thematter was remanded to the Trial Court.

Learned counsel Mr. Devidas Shelke appearing for theplaintiffs submits that order of remand is unwarranted and hasbeen passed in routine manner. It is submitted that the Appellate Court should have decided the matter on merits andshould have appointed Commissioner instead of remanding it tothe Trial Court. It is submitted that the sale deed executed on21.05.1980 is bad in law and the decree of the Trial Court shouldhave been reversed.

Both sides have canvassed the submissions in pursuance ofsubstantial questions of law framed by this Court vide order 4 ao 41.24 & ao 61.23dated 08.10.2025 in both the appeals.

Per contra, learned advocate Mrs. Charuta Deshmukhappearing for the defendants submits that remand order was notrequired and Appellate Court had ample power to decide thematter on merits. It is submitted that Manik had no salableinterest and alienation of 21/80th share is void. It is furthersubmitted that already exercise of appointing Commissioner wasundertaken in the Trial Court and the map was produced onrecord. The decree should have been confirmed by the lowerAppellate Court.

Both sides are claiming that lower Appellate Court shouldhave exercised the powers conferred by Order XLI Rule 24 and33 of the Code of Civil Procedure (for the sake of brevity andconvenience hereinafter referred as to the “C.P.C.”) in decidingthe appeal on merits, instead of remanding the matter to the Trial Court. In the Trial Court, Commissioner was appointed formeasurement of the suit property, who was D. W. No. 2. Themeasurement map was produced at Exhibit 211. The Executionof the sale deeds which are referred in the earlier paragraphs arenot disputed. The facts in issue are as to whether defendants areowners of 59/80th share and 3/48th share and as to whetherplaintiffs are owners of 21/80th share. Their entitlement andclaim can be examined on the basis of material placed on record.

Just because there is interese dispute regarding 5 ao 41.24 & ao 61.23entitlement to the extent of respective shares, remanding thematter for resorting to Order XXVI Rule 10 of the C. P. C. is notthe solution. Appellate Court has ample power U/O XLI Rule 24and 33 of the C. P. C. to deal with factual aspect of the matter. Taking recourse to Order XXVI Rule 9 of the C. P. C. at theappellate stage is also permissible, if so required. I findsubstance in the submissions of both learned counsels that orderof remand is unwarranted.

Its nobody’s case that opportunity of hearing was notextended to either of the sides. Neither is it a case thatadditional material is available which could not be placed onrecord in the Trial Court. In this backdrop order of remand islikely to consume more time.

Learned advocate Mr. Shelke has relied on the judgmentsof the Supreme Court and Gauhati High Court in the matters of Jagannathan Vs. Raju Sigmani and another reported in 2012(5) SCC 540,Akshay Automobiles Vs. Union of India and others reported in (2004) 2Gauhati L.R. 187 and Municipal Corporation, Hyderabad Vs. Sunder Singhreported in 2008(8) SCC 485 to buttress that order of remand isunwarranted and it was passed routinely. Reliance is also placedon the judgment of this Court in the matter of Yasin Gula ShkalkarVs. Maruti Nagnath Anware reported in LAWS (BOM)-2023-1-210 tosupport that Appellate Court has power to appoint the CourtCommissioner. The propositions are not disputed. Those can bemade applicable to the present case. 6 ao 41.24 & ao 61.2314.I am inclined to answer substantial questions of law infavour of both the appellants in holding that impugned judgmentand order is unsustainable and Appellate Court can very welldeal with the matter on merits. I, therefore, pass following order.

O R D E RA.Appeal from Order No. 41 of 2024 and Appeal from Order No. 61 of 2023 are allowed.B.Impugned judgment and order dated 06.04.2026 passed by District Judge – 6, Ahmednagar in R.C.A. No. 626 of 2012 is quashed and set aside.C.Parties shall appear before the Appellate Court on 30.03.2026.D.The Appellate Court shall decide the appeal on its own merits as expeditiously as possible and in any case not more than 10 (ten) months from the date of appearance of the parties. [ SHAILESH P. BRAHME J. ] bsb/March 26