SITABAI Vs. DURGABAI AND ORS.

JUDGEMENT

(1.) Heard Learned Counsel For The Rival Parties. By Consent of learned counsel for both the parties the matter is taken up for final hearing.

(2.) The present appeal is against judgment and order dated 5.7.2014 whereby learned Principal District Judge, Gondia in Regular Civil Appeal No.50 of 2013 was pleased to remand the proceedings to the trial Court with a direction to the trial Court to frame the issue in respect of custom pleaded by the plaintiff in paragraph No.3A of the plaint. Learned trial Judge was further directed to frame specific issue in respect of validity of the customary divorce in Teli community and to deal with the same to hear and decide the suit expeditiously within a period of three months.

(3.) The Ruling In The Case Of Kannam (Dead) By L.Rs. And anr cited was in respect of Civil Appeal Nos.54725475 of 2001 before the Apex Court and the Court was considering the cases of Madras High Court in second appeal while the ruling in the case of Nedunuri Kameswaramma the Apex Court was considering the special leave against a judgment in second appeal of the High Court of Andhra Pradesh. Here, in the present case, it appears that no specific issue was framed by the trial Court regarding validity of the customary divorce in Teli community to which the parties belong. The issue was material but was not specifically framed in the facts and circumstances of the present case. Therefore, learned District Judge found that no specific issue was framed regarding validity of the customary divorce in Teli community. Therefore, the parties cannot have full idea while the proceeding was pending in the trial Court to lead necessary evidence regarding validity of customary divorce in Teli community. Unless the parties can be imputed with notice as to the issue of validity of the customary divorce permitted in Teli community as per customs prevalent in it, such customs could not have been established to the satisfaction of the trial Court. The parties must be put to notice of the specific issue framed which may enable the parties to avail of the opportunity to prove validity of customary divorce in Teli community. The issue which was framed to the effect that, "does the plaintiff prove that she is legally wedded wife of deceased Khushal and a member of joint Hindu family of Pandurang" was not comprehensive enough to impute notice to the parties to prove whether the customary divorce is valid amongst Teli community. That being so, since the trial Court had partly decreed the suit and restrained defendant Nos.1 to 4 by permanent injunction from disturbing peaceful possession of plaintiff over two rooms of the house no.506 at village Murri without following due process of law, in appeal the issue as to validity of the customary divorce in Teli community was under consideration and the appellate Court found that there was no such specific issue framed by the trial Court. Therefore, it would be in the larger interest of justice if the parties are made aware that they were required to establish validity of the customary divorce in Teli community and they were given full opportunity by learned appellate Judge to approach the trial Court so as to frame the specific issue and call upon the parties to lead necessary evidence in support of their contentions and then to decide the suit finally. There was nothing wrong in the impugned judgment and order.