MOHAMMAD RAFIQ Vs. SMT. AMNA KHATOON

JUDGEMENT

(1.) THIS is First Appeal From Order against the judgment and decree passed by Shri C.L. Anand, IIIrd Additional District Judge, Gorakhpur dated 10.9.1982 by virtue of which learned appellate court allowed the appeal and set aside the judgment and decree passed by Shri Surendra Vikram Singh, Munsif -2, Gorakhpur except finding on issue Nos. 1 and 2. Issue Nos. 1 and 2 were regarding benami nature of sale alleged to have been executed by one Habibullah father of the plaintiff in favour of his wife Smt. Qamrulnissa. It was held that Smt. Qamrulnissa was the owner. It appears that the plaintiff -appellant Mohd. Rafiq has filed a suit for partition claiming 3/4th share in the property, on the allegation that the sale deed in favour of Smt. Qamrulnissa was benami and Habibullah was the real owner. The trial court held that it was not benami, Smt. Qamrulnissa was the owner. After the death of husband Habibullah she inherited 1/4th share. Admittedly vide gift dated 18.2.1965, Habibullah gifted 1/4th share to the plaintiff. It was also admitted in the gift deed executed that sale deed in favour of Smt. Qamrulnissa was not benami and she was real owner under the sale. The suit of the plaintiff was decreed by the trial court to the extent of 1/4th share. The plaintiff appellant filed an appeal and challenged the benami order of the sale deed. The plaintiff also claimed mutation of his share after the death of Nihal who was son of Qamrulnissa. Details facts were not pleaded. It appears that the learned appellate court thus remanded the matter to the trial court directing the plaintiff to amend the plaint and if amendment is made there would be augmentation of the plaintiff share which would be considered by the trial court. It is also admitted fact that Smt. Ashkari had made an application for impleadment before the appellate court. The appellate court held that she is wife of Habibullah and she is necessary party and remanded the matter for adjudication after impleading her. Unfortunately Smt. Ashkari during the pendency of appeal had died and the matter regarding his share could not be decided.

(2.) SHRI V.B. Khare, learned counsel for the appellant submitted that the trial court has given a finding in favour of the appellant regarding his share of 1/4th. In the appeal it framed two additional issues - -issue Nos. 10 and 11 and remanded the case to the trial court for recording the findings. Thereafter the appellate court remanded the matter and the order of the trial court has been challenged regarding amendment of the plaint and remitting of the case as a whole. The learned counsel for the appellant submits that the order confirming the finding of issue Nos. 1 and 2 are illegal i.e. the transaction was not benami and holding Qamrulnissa owner. He further submits that the remand order under Order XLI Rules 23 and 23 -A is not valid. Rules 23 and 23 -A are quoted with an advantage: - -

(3.) IT was open to Ashkari Begum again had she been alive to take all the pleas available i.e. regarding benami transaction and other pleas. The appellate court should not kept the finding intact on a benami transaction and reserved them after determination of the pleas taken by Ashkari Begum had she been alive. It would not be equitable and in the interest of justice now to decide the case by this court on benami transaction etc. The effected party will lose right of statutory appeal. I, therefore, order that the finding be given by the appellate court again on the issues involved after hearing the parties. There can be no other equitable order in the facts and circumstances of the case. I, therefore, accept the appeal in the light of above observation and modify the decrees of the appellate court and the appellate court to decide the issues involved within two months from the date of receipt of the record.