Sajjan Singh v. Bhajan Singh (deceased)

Kishan. The judgment debtor – Sukhjinder Singh challenged the said sale by filing a Civil Suit No.434 of 1977, but the said suit was dismissed on

22.10.1979.

4.1 However, prior to the dismissal of the aforesaid suit and rather, even prior to filing of the suit, Sukhjinder Singh had already suffered a collusive decree dated 18.08.1975 in favour of his sister Smt. Rajinder Kaur, not only in respect of the suit land, but in respect of some other land in order to avoid the auc)on. On the basis of that decree dated 18.08.1975 in her favour, Rajinder Kaur filed objec)ons under Order 21 Rule 90 CPC in the execu)on filed by Ram Kishan, which were ini)ally accepted by Sub Judge, Dhuri on 04.09.1980, but the appeal filed by decree holder – Ram Kishan was allowed on 04.01.1982 by the District Judge, Sangrur and the Sale Cer)ficate in favour of decree holder – Ram Kishan was kept intact. The said order of District Judge, Sangrur was challenged by Smt. Rajinder Kaur by filing Civil Revision No.963 of 1982 before this High Court. During pendency of that revision, Ram Kishan expired on 23.12.1988 and Sajjan Singh, plain)ff of the present suit (appellant herein) was brought on record as his legal representa)ve on the basis of a Will dated 18.01.1989.

4.2 During pendency of the civil revision pending before this High Court, Smt. Rajinder Kaur sold the suit property in favour of defendants of the present suit - Bhajan Singh and others (respondents herein) vide sale deed dated 15.05.1996 and based thereon, muta)on No.2956 was sanc)oned. Later on, Civil Revision No.963 of 1982 as filed by Rajinder Kaur was dismissed in default on 25.02.2004. A Civil Misc. applica)on No.2693 of 2008 moved by Rajinder Kaur so as to consider her revision on merits, was dismissed as Page no.2 out of 12 pages Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order SAO No.100 of 2016 (O&M) withdrawn vide order dated 13.02.2009.

4.3 ADer the dismissal of the civil revision, Sajjan Singh as legal representa)ve of Ram Kishan moved applica)on before the Revenue Authori)es to enter muta)on regarding property in dispute in his favour. However, the said muta)on was rejected by the Assistant Collector – II Grade, Sangrur on the ground that possession had not been delivered to him aDer issuance of the sale cer)ficate. Appeal filed by Sajjan Singh was dismissed by the Assistant Collector -I Grade, Sangrur. He filed revision before the Divisional Commissioner, but the same was also dismissed on 28.05.2008.

4.4 In this back drop, Sajjan Singh filed the present civil suit seeking decree for joint possession of the suit land to the extent of 64/71 share, i.e. regarding which Sale Cer)ficate had been issued in favour of Ram Kishan.

Defendant Nos.1 to 5, i.e. respondents herein contested the suit and claimed themselves to be the bonafide purchasers of the suit property. According to them, decree dated 18.08.1975 passed in favour of Smt. Rajinder Kaur in Civil Suit No.256 of 1975 )tled as “Rajinder Kaur v. Sukhjinder Singh”, was never challenged by Ram Kishan during his life )me. It was further pleaded that there was no entry in the revenue record regarding the aEachment or sale of the suit property and so, the defendants could not come to know about the prior auc)on. Much prior to the Sale Cer)ficate in favour of Ram Kishan, Smt. Rajinder Kaur had already been declared to be owner of the suit property. It was also submiEed that Sukhjinder Singh had even filed a separate suit challenging the decree dated 18.08.1975 in favour of Smt. Rajinder Kaur, but the same was dismissed. Sukhjinder Singh had even contested muta)on No.1542 sanc)on in favour of Smt. Rajinder Kaur and therefore, there could have been no collusion. Apart from taking the main plea of being bonafide purchaser of the suit property, another conten)on raised by defendants was that plain)ff -Sajjan Singh had no locus standi to bring the suit, inasmuch as none of the legal heirs of Ram Kishan had come forward and that Will relied by the plain)ff in his favour alleged to be executed by Ram Kishan, was a forged and fabricated document. They prayed for dismissal of the suit. Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.3 out of 12 pages SAO No.100 of 2016 (O&M)

Following issues were framed by the trial Court:- “1. Whether the plain(cid:26)ff is en(cid:26)tled to the relief of joint possession, as prayed for? OPP

Whether the plain(cid:26)ff has no cause of ac(cid:26)on and locus standi to file the present suit ? OPD

Whether the suit is not maintainable in the present form? OPD

Whether the plain(cid:26)ff is estopped by his own act and conduct from filing the present suit? OPD

5. Whether defendants no.1 to 5 are bonafide purchasers for valuable considera(cid:26)on? OPD

6. Whether the suit is bad for non joinder of necessary par(cid:26)es? OPD

Relief.”

7. ADer taking evidence produced by the par)es, the trial Court of learned Addl. Civil Judge (Sr. Divn.), Sangrur, decreed the suit in favour of the plain)ff-appellant – Sajjan Singh. Defendants filed appeal before the District Courts. During pendency of the appeal, an applica)on for framing of addi)onal issues was moved regarding the Will relied by Sajjan Singh. Defendants also claimed an issue to the effect that had become owner of the suit property by way of adverse possession. It was pleaded that in the wriEen statement filed by the defendants, it was specifically pleaded that plain)ff was not the legal representa)ve of Ram Kishan. He had claimed to be so on the basis of a Will, but the said Will was forged and fabricated document and that natural legal heirs of Ram Kishan had not been arrayed as a party and as such, the suit was bad for non-joinder of the necessary par)es. Reliance was placed upon “Kalyan Singh Chouhan v. CP Joshi”, 2011(2) CCC 001, wherein it was held that it is the issue fixed not the pleading that guide the par)es in the maEer of adducing evidence and that Court should not decide the suit on a maEer/point on which no issue has been framed.

ADer considering conten)ons of both the par)es, the First Appellate Court vide its order dated 01.11.2016 framed the following addi)onal issues :- Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.4 out of 12 pages SAO No.100 of 2016 (O&M)

1-A Whether deceased Ram Kishan executed any registered and valid will or genuine Will dated 18.01.1989 in favour of the plain(cid:26)ff Sajjan Singh, if so to what effect? OPP 1-B Whether the suit of the plain(cid:26)ff is bad for non-joinder of necessary par(cid:26)es? OPD

8.1 ADer framing the aforesaid addi)onal issues, the Appellate Court set aside the judgment and decree dated 14.05.2014 of the trial Court and directed the trial Court to decide the suit afresh by giving effec)ve opportuni)es to both the par)es to lead evidence in support of their case and rebuEal evidence, if any.

Assailing the aforesaid order of the First Appellate Court, the main conten)on as raised by learned counsel for the appellant-plain)ff before this Court is that the defendants/respondents are not the natural heirs of Ram Kishan and therefore, they cannot ques)on the execu)on of the Will. Learned counsel has referred to “Malkiat Singh v. Kashmiri Lal”, 2000(1) PLR 295, wherein it has been held by this Court that when execu)on of a Will is not being ques)oned by any natural legal heirs and a stranger is not en)tled to any natural or testamentary succession or any interest in the property, such a stranger has no locus standi to challenge the Will.

Refu)ng the aforesaid conten)on, learned counsel for the respondents-defendants submits that plain)ff – Sajjan Singh brought the suit by claiming to have stepped into the shoes of Ram Kishan on the basis of a Will. Although, Ram Kishan is stated to have expired on 23.12.1988, but Sajjan Singh is relying upon a Will subsequent to that date i.e. 18.01.1989. Learned counsel contends that in fact, it is the locus standi of plain)ff – Ram Kishan, which is in ques)on and is required to be determined to file the suit.

I have considered submissions of both the sides and have appraised the record carefully.

There can be no dispute to the legal proposi)on that when Page no.5 out of 12 pages Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order SAO No.100 of 2016 (O&M) execu)on of Will is not being ques)oned by any natural legal heir and when a stranger, who in the present case are the defendants, are not en)tled to any natural or testamentary succession or any interest in the property, they have no locus standi to challenge the Will.

In the present case, since the Will is being relied upon by plain)ff-Sajjan Singh so as to represent the estate of Ram Kishan and the said Will is being alleged to be forged and fabricated document by the defendants, basically, it is the locus standi of the plain)ff, which is being ques)oned by the defendants to file the suit. In such circumstances, the authority cited by learned counsel for the appellant, i.e. Malkiat Singh's case (supra) will not be applicable, as plain)ff is required to prove his locus standi. It becomes more necessary, when it is no)ced that death of Ram Kishan is stated to have occurred on 23.12.1988; whereas the Will relied by plain)ff – Sajjan Singh is of the subsequent period, i.e. 18.01.1989. None of the Courts below have addressed this point as to how a Will could have been executed subsequently by Ram Kishan, aDer his death. In these circumstances, another issue to be tried by the Court below will be about the locus standi of the plain)ff to bring the suit.

In view of above discussion, this Court is of the view that although the issue of locus standi of plain)ff was required to be decided by the Courts below and it is for that purpose that plain)ff will have to prove the execu)on of Will in his favour, but the order of remand passed by the Appellate Court cannot be jus)fied in view of the provisions of Order 41 Rule 25 CPC, as the Appellate Court could only ask for the report from the trial Court on the addi)onal issues framed by it.

This aspect has already been considered by this Court in SAO No.74 of 2015 )tled as “Balwinder Singh v. Simar Kaur @ Simarjit Kaur and others”, decided on 06.08.2024. ADer referring to Smt. Bachahan Devi and another Vs. Nagar Nigam, Gorakhpur and another, 2008(2) RCR (Civil) 367 (SC) of Hon'ble Supreme Court, besides Harikishan Vs. Smt. Anandi, 2007(1) Page no.6 out of 12 pages Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order SAO No.100 of 2016 (O&M) PLR 469, it was held by this Court as under:- “7. ADer considering submissions, although this Court finds merit in the point raised by the ld. counsel for the appellant to the extent that maEer should have been considered in the light of Order 41 Rule 25 CPC instead of Order 41 Rule 23A CPC, but this Court is not agreeable to the prayer made by the appellant. The following are the reasons for this opinion by this Court:

8. Although, the appellate court has the power to remand the case, but only in such circumstances, which are covered under Order 41 Rule 23, 23-A or 25 CPC. These rules may be tabulated as under: Rule 23 Remand of case by Appellate Pre-requisites: Order XLI Code of Civil Procedure Court— Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with direc(cid:26)ons to re- admit the suit under its original number in the register of civil (cid:1) (cid:1) The court, whose decree is under appeal, has disposed of the suit upon a preliminary point. The appellate court has reversed the decree.

Op<ons open for appellate court: It may remand the case (cid:1) (cid:1) may direct what issue or issues shall be tried in the case so remanded What is to be done by the appellate court: (cid:1) To send a copy of its judgment and order to the concerned Direc<ons to be sent by the appellate court: (cid:1) To readmit the suit at original number in relevant register To proceed to determine the The consequence: (cid:1) suits, and proceed to determine (cid:1) the suit; and the evidence (if any) recorded during the original trial shall, subject to all just excep(cid:26)ons, be evidence the evidence (if any) recorded during the original trial shall, subject to all just excep)ons, be evidence during the trial aDer remand. Rule 23A during the trial a<er remand Remand in other cases— Where Pre-requisites: the Court from whose decree an (cid:1) The court, whose decree is Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.7 out of 12 pages SAO No.100 of 2016 (O&M) appeal is preferred has disposed of the case otherwise than on a preliminary point, and the (cid:1) decree is reversed in appeal and under appeal, has disposed of the suit otherwise than a preliminary point.

The appellate court has reversed the decree. (cid:1) Retrial considered a retrial is considered necessary, necessary the Appellate Court shall have Op<ons open for appellate court: the same powers as it has under [Same as under Rule 23] rule 23. Rule 25 Where Appellate Court may Pre-requisites: frame issues and refer them for trial to Court whose decree appealed from— Where the Court from whose decree the appeal is preferred has omi(cid:14)ed to frame or try any issue, or to determine any ques(cid:26)on of fact, which appears to the Appellate Court essen(cid:26)al to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and (cid:1) refer the same for trial to the (cid:1) The court, whose decree is under appeal, has disposed of the suit has o omiEed to frame any issue or o omiEed to try any issue, or o to determine any ques)on of (cid:1)(cid:1)(cid:1)(cid:1) The appellate court considers essen)al for the right decision of the suit upon the merits Op<ons open for appellate court: (cid:1) May frame issues, and (cid:1) refers the same for trial to the concerned court To direct such court to take the addi)onal evidence required Court from whose decree the What the trial court has to do: (cid:1) (cid:1) To proceed to try such issues, To return the evidence to the Appellate Court together with its findings thereon and the reasons therefor (cid:1) within such )me as may be fixed by the Appellate Court or extended by it from )me to )me appeal is preferred, and in such case shall direct such Court to take the addi(cid:26)onal evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such (cid:26)me as may be fixed by the Appellate Court or extended by it from (cid:26)me to (cid:26)me.” Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.8 out of 12 pages SAO No.100 of 2016 (O&M)

9. Thus, under Rule 23, the Appellate Court can remand, when the maEer was disposed of by the trial Court upon a preliminary issue and the decree is reversed in appeal. Necessary direc)on can be given by the Appellate Court as to what issues are to be tried on the maEer being remanded. Under Rule 23-A, when the trial Court has disposed of the case, otherwise than on a preliminary issue and the decree is reversed in appeal and re-trial is considered necessary, then the Appellate Court has the same powers as are under Rule 23. Under Rule 25, order for remand can be made by the Appellate Court, when the trial Court has omiEed to frame or try any issue or determine any ques)on of fact and Appellate Court considers it to be essen)al for the right decision of the suit on merits.

10. In the case of Smt. Bachahan Devi (supra), aDer referring to Order 41 Rule 25 CPC, Hon’ble Supreme Court held as under: - “8. There is no scope for any doubt that in a suit as well as the first ap- peal all disputed facts are open for decision. A point of fact is not to be decided in second appeal where only a substan)al ques)on of law is to be looked into. There is some amount of controversy as to whether the provisions are mandatory, notwithstanding the fact that the word 'may' has been used. The First Appellate Court is the last Court of facts.

9. Under Order XLI Rule 25, if it appears to the Appellate Court that any fact essen)al for the decision in the suit was to be determined, it could frame an issue on the point and refer the same for trial, to the Court from whose decree the appeal is preferred and in such case, shall direct such court to take addi)onal evidence required. The order of remand should not be passed as a maEer of rou)ne. The First Ap- pellate Court which has the power to analyse the factual posi)on can decide the issue and the addi)onal issues. In the instant case the First Appellate Court, inter alia, observed as follows: "As such, it would not be proper for the first Appellate Court in such ma(cid:14)er to itself record the evidence and to give its findings in regard to newly created issues. The Hon'ble High Court has also held that in the present ma(cid:14)er under the provision of Order 41 Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this provision, the word 'may' has been used. No doubt in the present ma(cid:14)er also the Appellate Court has framed 6 addi(cid:26)onal issues which are legal in nature and also factual, with the result if the Appellate Court gives its findings rela(cid:26)ng to said legal and factual issues a<er itself recording Page no.9 out of 12 pages Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order SAO No.100 of 2016 (O&M) (receiving) evidence then the aggrieved party would be prevented from his right of filing first appeal. Accordingly, the aforesaid ra(cid:26)o laid down by the Hon'ble High Court is fully applicable in the present ma(cid:14)er. "

10. A bare reading of the provision makes it clear that the same comes into opera)on when the Court, from whose decree the appeal is preferred, has omiEed to frame or try and issue, or to determine any ques)on of fact which appears to the appellate court essen)al for the right decision of the suit upon the merits. In order to bring in applica)on of Order XLI Rule 25 the appellate court must come to a conclusion that the lower court has omiEed to frame issues and/or has failed to determine any ques)on of fact which in the opinion of the appellate court are essen)al for the right decision of the suit on merits. Once the appellate court comes to such a conclusion it may, if necessary, frame the issues and refer the same to the trial court. In other words there is no compulsion on the part of the appellate Court to do so. This is clear from the use of the expression 'may'. But the further ques)on that arises is whether in such a case the appellate court is bound to direct the trial court to take addi)onal evidence required.

This is a mandatory requirement as is evident from the provision itself because it provides that the lower court shall proceed to try such case and shall return the evidence to the appellate court together with findings therein and the reasons therefor. As noted above, the provision becomes opera)ve when the appellate court comes to the conclusion about the omission on the part of the lower court to frame or try any issue. Once the appellate court directs the lower court to do so, it is incumbent upon the trial court to take addi)onal evidence required. As has been rightly contended by learned counsel for the appellant, there may be cases where addi)onal evidence may not be required. But where the addi)onal evidence is required, then the lower court has to return the evidence so recorded to the appellate court together with the findings thereon and the reasons thereof. Requirement for recording the finding of facts and the reasons disclosed from the facts is because the appellate court at the first instance has come to the conclusion that the lower court has omiEed to frame or try any issue or to determine any ques)on of fact material for the right decision of the suit on merits.

It has to be noted that where a finding is called for on the basis of certain issues framed by the appellate court, the appeal is not disposed of either in whole or in part. Therefore the par)es cannot be barred from arguing the whole appeal aDer the findings are received from the court of the first instance. This posi)on was highlighted in Gogula Gurumurthy and Others v. Kurime< Ayyappa (1975(4) SCC 458), where it was inter-alia observed in para 5 as follows: "We consider that when a finding is called for on the basis of certain Page no.10 out of 12 pages Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order SAO No.100 of 2016 (O&M) issues framed by the appellate Court the appeal is not disposed of either in whole or in part. Therefore the par)es cannot be barred from arguing the whole appeal aDer the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 All 384)."

11. Thus, from the legal posi)on as explained above by the Hon’ble Supreme Court as above, it is clear that when the Appellate Court finds that some issues are to be re-framed or re-casted and some addi)onal evidence is required, it may refer the same for trial to the court from whose decree the appeal is preferred (trial court in this case) and then then the trial Court has to return the evidence so recorded to the Appellate Court together with the findings thereon and the reasons therefor. As has been made clear by Hon’ble Supreme Court that when the finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole or in part and therefore, the par)es cannot be barred from arguing the whole appeal aDer the findings are received from the Court of first instance. Thus, aDer framing addi)onal issues or cas)ng issues, though the appellate Court under Order 41 Rule 25 CPC can remand the maEer to the trial Court with the direc)on to record evidence and return findings on those issues, but the trial Court could not be directed to re-decide the issues on all the points.

12. As far as Order 41 Rule 23A CPC is concerned, it is not applicable to the facts of the present case because though the trial Court had disposed of the suit otherwise than on a preliminary point by giving finding of all the issues in the present case, the appellate Court has framed addi)onal issues and has re-casted some issues and therefore, it is Rule 25 of Order 41, which CPC will be applicable.”

In view of the en)re factual and legal discussion as above, it is held that the impugned order dated 1.11.2016 of the Appellate Court cannot be sustained. The said order is hereby set aside. The case is remanded back to the Appellate Court with the direc)on to ask the trial Court to return the evidence recorded on addi)onal issues as framed by the said Appellate Court to get findings thereon and reasons thereof and then Appellate Court is to decide the maEer/appeal afresh aDer receipt of the evidence/finding by the trial Court on the addi)onal issues as framed by the Appellate Court. Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.11 out of 12 pages SAO No.100 of 2016 (O&M)

For removal of doubts, it is made clear apart from the addi)onal issues as framed by the appellate court, the trial Court is also to return the finding on one more issue i.e., about the locus standi of plain)ff - Sajjan Singh to file the suit. Disposed of accordingly. August 13, 2024 sarita (DEEPAK GUPTA) JUDGE Whether reasoned/speaking: Whether reportable: Yes Yes Sarita Rani 2024.08.14 05:51 I attest to the accuracy of this document/order Page no.12 out of 12 pages