AI Structured Summary
Not yet generated for this judgment
Judgment
Honourable Mr. Justice Shailesh Kumar Sinha
The appeal is directed against the order dated 17th of February, 2001 passed by the Additional District Judge Vth, Siwan in Title Appeal No. 17 of 1992, whereby the judgment and decree of the trial court dated 8th of May, 1992 passed by the 5th Subordinate Judge, Siwan in Title Suit No. 97 of 1981 was set aside and the matter was remanded to the trial court for fresh decision on all the issues, especially with respect to the registered sale deed dated 23rd of November, 1979 (Ext.2). Plaintiffs'' case, in short, is that as per the genealogical table, as quoted below, it would appear that one of the sons of Langat Mahto, namely, Bhawani Mahto died leaving behind his widow Mostt. Simrikhia. Simrikhia had one daughter, namely, Rukminiya, who was having a son Dudhnath Mahto (Defendant No. 10). Further case of the plaintiffs is that said Dudhnath Mahto executed a sale deed (Ext.2) in favour of the plaintiffs No. 2, 3 and 4 with respect to his entire 1/3rd share. Further case of the plaintiffs is that the registered deed of gift dated 29.11.1946 (Ext.B) executed by Mostt. Haria, the daughter-in-law of Chhathu Mahto, the other son of Langat Mahto, was not valid. The plaintiffs accordingly in the aforesaid partition suit claimed their share to the extent of 2/3rd.
The case of the defendants, on the other hand, was that aforesaid deed of gift (Ext.B) executed in favour of defendant No. 1 Hira Mahto was valid as Mostt. Haria had no issue. As regards the claim of the plaintiffs with respect to 1/3rd share of Bhawani Mahto, the stand of the defendants was that Bhawani Mahto and his widow died issueless and as such, the case of the plaintiffs that Bhawani Mahto died leaving behind his daughter Rukminiya was absolutely incorrect and consequently, the registered deed of sale dated 23.11.1979 (Ext.2) was equally of no avail as Dudhnath Mahto and his mother were stranger to the family. The further case of the defendants was that 1/3rd share of Bhawani Mahto accordingly devolved upon the branch of Kunjan Mahto and Chhathu Mahto on his death as also of his wife Simrikhia.
The trial court upon considering the pleadings of the parties framed several issues. The vital issue in dispute was as to whether Bhawani Mahto, who died leaving behind Rukminiya, was his daughter or not. In other words, if Rukminiya was not the daughter of Bhawani Mahto, the question of execution of the sale deed by Dudhnath Mahto, son of Rukminiya, was of no legal consequence. The trial court upon a detailed consideration of the evidence brought on the record concluded that Rukminiya was the daughter of Bhawani Mahto and Dudhnath Mahto (Defendant No. 10) was the son of said Rukminiya. Dudhnath Mahto appeared as P.W. 5 categorically stated that the sale deed was executed by him with respect to 1/3rd of the property i.e. to the extent of the share of Bhawani Mahto as per the sale deed dated 23rd of November, 1979 (Ext.2). The trial court considering the evidence on the record further held that the plaintiffs and the defendants are entitled to share in the property in the ratio of half and half taking into consideration the deed of gift (Ext.B) as well as the sale deed (Ext.2).
The contesting defendants, on being aggrieved with the aforesaid judgment and decree of the trial court, preferred an appeal, vide Title Appeal No. 17 of 1992 in the court of the District Judge, Siwan, which was ultimately heard and disposed of by the 5th Additional District Judge, Siwan. The judgment and decree was set aside and the matter was remanded to the trial court basically on the ground that the trial court while deciding the issues did not frame a specific issue with respect to the validity of the sale deed dated 23.11.1979 (Ext.2). The appellate court directed the trial court to decide all the issues afresh after taking the evidence of the parties. In other words, the whole matter was remanded after setting aside the judgment and decree of the trial court.
Learned counsel appearing on behalf of the appellants submits that the order of remand is bad in law for two reasons; firstly the appellate court could not have remanded the matter as the materials on all the issues were already on the record and as such, if the appellate court found that the judgment of the trial court is not correct, the court ought to have decided the appeal itself as per law instead of remanding the matter causing further delay as the suit was filed in the year 1981. The second point was as to whether Rukminiya was the daughter of Bhawani Mahto as the case of the defendants was that Rukminiya was stranger to the family and in case Rukminiya is stranger to the family, Dudhnath Manto, son of Rukminiya, also being stranger, could not have validly executed the sale deed with respect to the family property. It is, accordingly, submitted that the appellate court could not have remanded on the ground that no specific issue was framed with respect to the validity of the sale deed (Ext.2) since the moot question was as to whether Rukminiya was the daughter of Bhawani Mahto and the said issue was thoroughly considered after framing the issue.
On the aforesaid issue, whether Rukminiya was the daughter or not, the matter was thoroughly considered on the basis of the evidence on record and upon detailed consideration, the trial court decided the issue as per Issue No. 5 and came to a categorical finding that Rukminiya was the daughter of Bhawani Mahto and as such, primary issue has been decided that Rukminiya was the daughter of Bhawani Mahto. The execution of sale deed by Dudhnath became not an important issue. Moreover, the matter with respect to execution of the sale deed was also considered by the trial court when the executant Dudhnath Mahto categorically stated in his evidence as P.W.5 that the sale deed was executed by him. It is accordingly submitted that from the record it would appear that the parties had understood the real issue between them and led evidence accordingly, including the execution of the aforesaid sale deed. Accordingly, it is submitted that the appellate court could not have remanded the matter and as such the order under appeal deserves to be set aside.
Learned counsel appearing on behalf of the respondents submits that although the issue as to whether Rukminiya was the daughter of Bhawani Mahto or not, it was contested and the trial court decided in favour of the plaintiffs, no doubt, however, the trial court did not frame separate issue with respect to the validity of the registered sale deed executed by Dudhnath Mahto in favour of plaintiffs No. 2 to 4 since his mother Rukminiya was not the member of the family.
Upon considering the rival submissions of the parties and on perusal of the judgment and decree of the trial court as well as the order of the appellate court, it would appear that the plaintiffs'' specific case is that Rukminiya was the daughter of Bhawani Mahto having 1/3rd share in the property and she, being the daughter of Bhawani Mahto, the sale deed executed by her son Dudhnath Mahto (defendant No. 10) was perfectly legal, valid and justified and, therefore, Mostt. Haria, the daughter-in-law of Chhathu Mahto, could not have executed the deed of gift with respect to her share as well as the share of the family of Bhawani Mahto. It is, however, claimed on the ground that as Bhawani Mahto had no issue, therefore, half share of Bhawani Mahto could have been validly dealt with by Mostt. Haria, who executed the deed of gift with respect to the half share. As such, Mostt. Haria could have executed her 1/3rd share plus the half share of Bhawani Mahto.
On perusal of the record, it would appear that the evidences on the vital issues between the parties are already on record. The appellate court could have decided the appeal on merits one way or the other and I do not find any valid justification for remanding the matter for the opinion that the trial court did not frame specific issue with respect to the registered sale deed cannot be a valid ground for remand. The order deserves to be set aside as such and accordingly, it is set aside.
Now the matter is remitted back to the appellate court for deciding the title appeal on merits. The suit was filed in the year 1981 and the said title appeal was filed in the court below in the year 1992, which was decided in the year 2001 remanding the matter. The plaintiffs, on being aggrieved, have preferred this miscellaneous appeal against the said order of remand in the year 2001. It would not be in the interest of both the parties to decide the issue on merits in this miscellaneous appeal, which could be decided in title appeal. I am not expressing any opinion on the merits of the respective cases of the parties nor expressing any opinion on the evidence on the record, in this appeal being a miscellaneous appeal.
Accordingly, the order under appeal is set aside and the matter is remitted back to the appellate court for deciding Title Appeal No. 17 of 1992 in accordance with law expeditiously. Learned counsel for both the parties undertake that the parties would be appearing before the appellate court on 7th of May, 2012, when a fresh date of hearing of the appeal may be fixed by the appellate court.
The appeal stands disposed of as above. However, in the facts and circumstances, there shall be no order as to costs. Let the lower court records be sent down to the court below without delay.