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Judgment
Admit. With the consent of the parties, heard finally at the stage of admission.
By the present appeal under Order 43 Rule 1(u) of the Code of Civil Procedure (‘CPC’ for short), the appellant takes exception to the judgment and order dated 29/03/2025 passed in R.C.A. No.35/2019 by the learned Adhoc District Judge-6, Nagpur, whereby the learned 12th Joint Civil Judge, Junior Division, Nagpur, quashed and set aside the judgment and decree dated 27/04/2018 passed in R.C.S. No.4561/2012 and remanded the matter for fresh decision by granting an opportunity to join the other co-sharers as the party defendants to the suit and to lead the additional evidence by both the parties to decide the suit afresh.
The present Appellant is the original defendant No.1 and respondent Nos.2 to 5 are the original defendant Nos. 2 to 5, respectively, whereas, the Respondent no. 1 is the original plaintiff in R.C.S. No. 4561/2012. For the sake of brevity, the parties to the present appeal will be referred by their original status as plaintiff and defendants.
The plaintiff filed R.C.S. No.4561/2012 and prayed for a decree of partition, declaration and separate possession in respect of House situated at Khapri Mohalla, Near Itwari Post Office, Nagpur, the suit property which was owned by the deceased Tulsiram Mohadikar. The plaintiff further prayed for permanent injunction against the defendants, restraining them from interfering her possession over the suit property.
After the service of notice, defendant No.1 filed a written statement at Exh.19 and resisted the suit contending that, there were no partition amongst the sons of deceased Tulsiram. The suit property is joint property. Further, the mutation entries do not confer title rights upon the other defendants. The genealogical tree given by the plaintiff is not proper. The other legal heirs, i.e. Gopal and Gajanan, are alive, but they are not impleaded as party defendants. Further, the plaintiff failed to prove the Will which was allegedly executed in her favour by Smt. Shakuntala, the mother of the plaintiff and the defendant.
Defendant No.2 filed the written statement at Exh.22 and denied that the execution of Will by Smt. Shakuntalabai was bogus, false and fabricated. So also, late Smt. Shakuntalabai had no right to execute the Will for want of partition. Further, the suit of the plaintiff is bad for non-joinder of necessary parties, hence, prayed for dismissal of the suit. The Defendant No.3 filed the written statement at Exh.18 and admitted the claim of the plaintiff. The rest of the defendants failed to file their written statements.
On the basis of the rival pleadings of both sides, the learned Trial Court framed Issues at Exh.23. The plaintiff Indubai filed her evidence affidavit at Exh.53 and proved certain documents. Defendant No.1 filed his evidence affidavit at Exh.60, whereas defendant Nos.2 and 3 remained absent.
On conclusion of the trial, on 27/04/2018, the learned 12th Joint Civil Judge, Senior Division, Nagpur, passed the judgment and decree, and dismissed the plaintiff's suit on the ground that, in the suit for partition, all the parties/co-sharers are required to be impleaded, however, the plaintiff failed to join the all necessary parties i.e. the legal heirs of deceased Tulsiram.
Being aggrieved by the said judgment and decree, the plaintiff instituted Appeal u/s 96 of CPC, bearing R.C.A. No.35/2019. On 29th March 2025, the learned First Appellate Court passed the impugned judgment and decree, setting aside the judgment and decree dated 27th April 2018 passed by the learned Trial Court in R.C.S. No.4561/2012, hence, this appeal.
Heard the learned counsel appearing for the respective parties at length. The Appellant as well as the respondents filed their respective written notes of arguments.
Needless to say that, on 23rd September 2025, while issuing notice, this Court framed the following substantial question of law.
I. Whether the suit for partition, which was dismissed by the learned Trial Court on account of non-joinder of necessary parties and also on the ground that the plaintiff had failed to prove the Will allegedly executed by the mother of the parties in her favour, was rightly remanded by the learned First Appellate Court right to the learned Trial Court for fresh adjudication?
The learned Counsel appearing for the appellant submits that, the learned First Appellate Court has committed a grave error in remanding the matter in the absence of prayer to that effect. Further, respondent No.1/original plaintiff has not filed any application seeking permission to adduce additional evidence to prove the Will at Exh.58, though, the learned Trial Court had given an opportunity to the plaintiff to implead all the necessary parties after written statements were filed on behalf of defendant Nos.1 and 2, therefore, the learned First Appellate Court ought to have dismissed the appeal on that count alone.
It is further canvassed that, the learned Trial Court had permitted the respondent No.1/original plaintiff to join Shri Gajanan and Shri Gopal as party defendants. The respondent No.5-Shri Gajanan, though served, failed to appear. The respondent No.4-Shri Gopal was served by way of substituted service through paper publication but he did not appear. Further, respondent No. 1-plaintiff has not taken any steps to implead the legal heirs of Shri Harihar, despite the admission was given in the cross-examination about the survival of Gangubai, the daughter of deceased Tulsiram. Therefore, the learned trial Court dismissed the suit for non-joinder of necessary parties. However, the learned First Appellate Court overlooked the opportunity given to respondent No. 1-plaintiff and remanded the matter for fresh trial by providing an opportunity to implead all necessary parties to the suit. Hence, the impugned judgment and order is erroneous, illegal and bad in law, therefore, deserves to be quashed and set aside.
In support of these submissions, the learned Counsel appearing for the appellant relied on case of Barku Pundlik Patil (Since Deceased, Through Lr’s) Chandrakalabai Barku Patil and others vs. Subhash Govindrao Pagare and others – (2022) 11 BOM CK 0018, wherein the Coordinate Bench of this Court observed in paragraph 11 as under:
“11.Applying the law as stipulated above to the instant case, following facts are relevant to determine whether remand under Order 41 Rule 23-A by the appellate court is lawful:-
[i] No application was made before the Appellate Court by the Plaintiffs/Appellants to adduce further evidence.
[ii] Defendants/Respondents have also not made prayer of remand for re-trial. Defendants have not challenged the Judgment of the Trial Court.
[iii] Remand would prolong the litigation more so where the Plaintiffs/Appellants have not prayed to lead further evidence. The Appellate Court cannot insist upon the Plaintiffs or Defendants to lead evidence.
[iv] The Appellate Court held that the Trial Court has not purportedly decided the suit by meticulously going through the evidence and has directed the whole suit to be decided afresh. However, just because the trial court has erred in appreciating evidence, the Appellate Court cannot remand the case for re-consideration, when it can itself enter into findings of fact by appreciation of evidence, which is already on record.
12.For the above reasons, the Appellate Court ought not to have remanded the matter under Order 41 Rule 23-A.
He further relied on the case of Ramdas and others vs. Kalawati and others, decided on 23/02/2021 (Law Finder Doc ID # 1856960) by the Coordinate Bench of this Court at Aurangabad, wherein it has been held that, proper opportunity was given to Shantaram to defend his case. He had taken part in both the cases. In RCS No. 95/2005, he, in fact, admitted the suit, and in RCS No. 322/2005, he filed a Pursis at Exh.116 stating that he did not wish to lead evidence when his turn to lead evidence had come. He cannot take advantage of his own silence and, therefore, the orders of remand passed in both the cases by the learned First Appellate Court are perverse and illegal.
Per contra, the learned Counsel appearing for respondent No. 1-plaintiff canvassed that, the learned First Appellate Court having discretionary powers under Order 41 Rule 23-A of the CPC to remand the suit for re-trial, if it is found necessary and in the interest of justice. Therefore, once the learned First Appellate Court arrived at the conclusion that, the matter cannot be effectively decided in absence of necessary parties, the impugned judgment and order is appropriate, hence, prayed for dismissal of the appeal.
To buttress his submissions, the learned Counsel appearing for the Respondent no. 1 as well as the learned counsel appearing for the respondent No.2 relied upon the following case laws:
P. Muthupalaniandi and others vs. P. Subbammal and another, wherein the Madras High Court has held that, to divide the ancestral property in a partition suit, all the members of the family are necessary parties and, without giving those parties an opportunity, the suit cannot be thrown out. To decide the partition suit, all the persons who are the legal heirs of Palanisamy Servai are required to be impleaded, and there is nothing wrong in remanding the matter back to the Trial Court by the First Appellate Court.
Balamani and Murugesan vs. S. Balasundaram– 2009 LawSuit (Mad) 884, wherein the Madras High Court has observed in paragraphs 20 and 21 as under :
“[20]. However, the learned Counsel for the defendant placed reliance on a Division Bench decision of this Court reported in 100 LW 486 (A. Ramachandra Pillai v. Valliammal (died) would develop his argument that consequent upon non-impleadment of necessary parties, this Court dismissed the claim of the plaintiff. An excerpt from the said decision would run thus :
The Supreme Court further observed:
It is true that under Order I, Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder or non-joinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1 Rule 10, Sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation. Once it is held that the appellant's two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. This decision is thus an authority for the position that in a suit for partition, all the sharers are necessary parties and also for the position that the suit is liable to be dismissed for non-joinder of any one of the parties. In (T. Panchapakesan and Ors. v. Peria Thambi Naicker and Ors.) also, a Division Bench of this Court has taken a similar view by judgment dated 18.07.1972. We are accordingly of the view that the finding of the learned Subordinate Judge on issue No. 10 holding that the suit is not bad for non-joinder of Nagarathinam's heirs is unsound and liable to be set aside. Accordingly, we hold that the suit is liable to be dismissed for non-joinder of the heirs of Nagarathinam.
8.Since we have not gone into the merits of the other issues but dismissed the suit as not maintainable, it is but proper that we set aside all the findings on merits and leave all the issues and contentions at large for any future decision. Accordingly the appeal is allowed and the judgment and decree of the Court below are set aside. The appellants will be entitled to their costs in the Appeal. (emphasis supplied)
[21] A bare perusal of the said judgment of the Division Bench of this Court would not indicate that a case of this nature should not be remitted back to the trial Court. The underlined portion of the above excerpt would clearly demonstrate and evince that the Division Bench of this Court had foreseen the possibility of instituting fresh proceedings and they never held that matter of this nature should not be remitted back to the trial Court. They also contemplated that once the suit is found to be bad for non-joinder of necessary parties, the findings rendered therein should not be allowed to subsist. Hence, I am of the considered opinion that instead of dismissing the claim of the plaintiffs in this appeal on the ground of non-joinder of necessary parties, the matter could be remitted back to the trial Court and that would obviate fresh filing of a suit for partition. [Emphsizee supplied]
After going through the above cited cases, it depicts that, since the plaintiff had deliberately suppressed the existence of certain other sharers and not impleaded them as party and the genealogy having been proved to be incorrect, the suit deserved to be dismissed. So also, the plaintiff failed to implead all the necessary parties who had been left out, and the Court could not take any initiative on its own under Order I Rule 10(2) of the CPC. However, instead of dismissing the suit in its entirety, in the interest of justice, indulgence was shown to the plaintiff by remanding the suit to the Trial Court, giving an opportunity to the plaintiff to implead all the members of the family who were necessary parties, to proceed further in accordance with law, by giving an opportunity to all the parties to adduce further evidence, if any, before the Trial Court and to decide their claims on merits afresh. Under these circumstances, the Madras High Court held that, once the suit is found to be bad for non-joinder of necessary parties, the findings rendered therein should not be allowed to subsist and, instead of dismissing the claim of the plaintiffs on the ground of non-joinder of necessary parties, the matter could be remitted back to the Trial Court, which would obviate the need for fresh filing of a suit for partition.
Similarly in the case in hand, it prima facie appears that, the Respondent No. 1/plaintiff had instituted a Regular Civil Suit No.4561/2012 and prayed for decree of declaration, partition, separate possession as well as permanent injunction in respect of suit property owned by the deceased Tulsiram Mohadikar. Though the Respondent No. 1/plaintiff given genealogical tree but it has been denied by the Defendants. For the sake of brevity, genealogical tree is scribed as under:
Late Tulsiram Mohadikar (Deceased)
Laxman Mohadikar Gopal Mohadikar Gajanan Mohadikar Harihar Mohadikar Gangubai
| (Wife Shakuntalabai) (both deceased) 1. Suresh (R-1) 2. Prabhakar (R-2) 3. Indubai (Petitioner) 4. Mandar (R-3) | Necessary Party was not originally impleaded | Necessary party later sought to be impleaded | (Dead) S1, S2, D3 (Necessary Party/ Co-sharer |
On face of record it reveals that, after filing of the written statements by defendant Nos.1 to 3, the learned trial court framed the Issues at Exh.23. The plaintiff and defendant No.1 filed their affidavits at Exh.53 and Exh.60 respectively. Defendant No.2, however, remained absent. Considering the material brought on record, as well as the disputed fact about execution of the Will, the learned trial Court passed the judgment and decree dated 27/04/2018, and dismissed the suit for want of necessary parties.
The learned first Appellate Court passed the impugned judgment and order dated 29/03/2025, thereby, set aside the judgment and decree dated 27/04/2018 passed in R.C.S. No.4561 of 2012, and remanded the suit for re-trial by giving an opportunity to the plaintiff to amend the plaint by impleading all necessary parties and to adduce evidence by both parties.
On perusal of the genealogical tree it apparently shows that, the plaintiff did not join all the co-sharers as party defendants in the suit. Admittedly, the defendant Nos.1, 2 and 3 filed their written statements and specifically raised an objection regarding non-joinder of necessary parties including LR's of Shri Harihar Mohadikar and Smt. Gangubai, the married daughter of Tulsiram.
No doubt, though the plaintiff relied upon the Will executed by Shakuntalabai, the widow of Laxman Mohadikar but said Will remained unproved because of non examination of the attesting witnesses. Therefore, considering the law laid down in case of S.R. Shriniwasa vs. S. Padmavathhama – 2010 (5) Mh.LJ 642; Yumnam Ongbi vs. Yumnam Joykumar – 2009 (5) Mh.L.J. 938 and Purushottam vs. Ambadas – 2010 (7) Mh.L.J. 657, wherein it is held that, there is a statutory requirement to examine at least one attesting witness to the Will to prove it. In case in hand the Respondent no.1/plaintiff fail to examine the any attesting witness to the alleged "Will".Therefore, the Will cannot be said to have been proved automatically.
Another, limb of the matter is that, whether the partition suit is maintainable for non-joinder of necessary parties. It is a well-settled principle of law that, all the parties having a share in the suit property, i.e. co-sharers, are required to be impleaded as parties to a partition suit, and for non-joinder of necessary parties, the suit for partition is bad in law.
In Manik vs. Dajiram – 2007 (1) Mh.L.J. 421, it is held that, in a suit for partition, the plaintiff is required to implead the head of all branches as a parties to the suit. In the case in hand, admittedly, the other co-sharers have not been impleaded as parties to the suit.
Upon perusal of the record, it prima facie appears that, Shri Tulsiram Mohadikar (since deceased) had purchased the suit property situated at Khapri Mohalla, Near Itwari Post Office, Nagpur. After his death, the property devolved upon his four sons, namely, Laxman, Gopal, Gajanan and Harihar, and his daughter, Gangubai as shown in the genealogical tree referred hereinabove. Therefore, the learned First Appellate Court passed the impugned order and remanded the matter for fresh decision by granting an opportunity to join the other co-sharers as party defendants to the suit and to lead additional evidence by both parties, to decide the suit afresh, which does not appear illegal, bad in
law. Accordingly, I answer the substantial question of law in affirmative. Hence, I proceed to pass the following order:
O R D E R
The appeal stands dismissed.
There shall be no order as to costs.
Since the suit has been pending since 2012, the learned Joint Civil Judge Junior Division, Nagpur is hereby directed to expedite the suit and shall ensure to dispose of the same as early as possible within a period of nine months from today.
The learned trial Court shall not grant adjournments to either party unless genuine and bona fide grounds are set out. In case repeated adjournments are sought, the same shall be declined with heavy costs.