BALKRISHNA DATTATRAYA BUTTE Vs. DATTATRAYA SHANKAR MOHITE

JUDGEMENT

(1.) THIS appeal is directed against the remand order passed by 2nd Additional District Judge Sangli on March 8, 1988 whereby the said Court allowed the appeal filed by the original defendant No.1 and set aside the judgment and decree passed by the 2nd Joint Civil Judge, Junior Division, Sangli on 31.3 . 1980 and remanded the matter to the trial Court with the direction that the original defendant No.1 Dattatraya S. Mohite be given an opportunity to lead the evidence and thereafter decide the rival contentions between the parties.

(2.) BALKU Dattatraya Bhute and Mrs. Kusum Vasantrao Jadhav the original plaintiffs filed a suit against Mr. Datta Shankar Mohite and Gangabai Maruti Dabhade, original defendants in the Court of 2nd Joint Civil Judge, Junior Division, Sangli. Plaintiffs are son and daughter of Dattatraya Baburao Butte. Dattatraya had one wife Ramabai but no issue was born out of that wedlock. Dattatraya then contracted second marriage with Sunderabai, mother of the plaintiffs. At the time of marriage with Dattatraya, Sunderabai was widow and had two sons from first husband. Dattatraya brought up Plaintiff No.1 and performed the marriage of plaintiff No.2. Plaintiff No.1 looked after the estate and shop of Dattatraya during his illness. Dattatraya died in the year 1972. The plaintiffs' case is that Dattatraya died leaving behind Ramabai, Sunderabai and the plaintiffs. Sunderabai died immediately after the death of Dattatraya and Ramabai died in the year 1975 and the plaintiffs are the only heirs of the property left by Dattatraya. The Plaintiffs averred that Dattatraya executed a Will on 22.6 . 72 and bequeathed his residential house and cash amount to Ramabai and after her death on 15. 1. 75 plaintiffs' became the legal heirs of the property of deceased Ramabai as well. The plaintiffs further case is that Dattatraya had also executed a Will in favour of plaintiff No.1 with regard to property bearing, City Survey No.1136b and City Survey No.1474. The grievance of the plaintiffs was that the defendants started obstructing the possession and vahivat of the plaintiffs over the suit property necessitating filing of the suit. The defendants traversed the claim of the plaintiffs and set up the defence that Sunderabai was never legally wedded with Dattatraya and therefore could not claim to be wife of Dattatraya. The execution of Will by Dattatraya on 22.6 . 1972 as alleged by the plaintiffs was denied. According to the defendants, Dattatraya had two wives, Ramabai and Gangabai (defendant No.2 ). Ramabai died on 15. 1. 1975 and prior to her death she executed a will on 8 . 12. 1972 in favour of defendant No.1. Thus, according to the defendants, defendant No.1 is the sole heir to the estate of Ramabai and the defendants inherited the estate of deceased Dattatraya. The defendants, therefore, prayed that plaintiffs' suit for declaration and injunction was liable to be rejected.

(3.) THE trial Court after recording the evidence and hearing the parties held that the plaintiffs were able to prove that Sunderabai was legally wedded wife of deceased Dattatraya and that they were the legal heirs of deceased Dattatraya. THE trial Court also concluded that plaintiffs have proved that on the death of Ramabai the plaintiffs succeeded to the property of Ramabai as her legal heirs. THE trial Court also found that the defendants failed to prove that the Will dated 22.6 . 72 produced by plaintiffs and executed by Dattatraya was sham or bogus transaction. On the basis of the aforesaid findings, the trial Court decreed the plaintiffs' suit and granted a decree for declaration that they were exclusive owners of the suit properties belonging to Dattatraya and restrained the defendants by permanent injunction from disturbing their peaceful enjoyment and himself showed me from the roznama that the Will written by Ramabai Dattatraya dated 8 . 12. 1972 was produced alongwith other documents on 9.2 . 1979. THE said document had already been exhibited as Exhibit 192. THE counsel for defendant No.1 had already filed purshis before the trial Court that no oral evidence is required to be led. Despite this fact situation the Appellate Court observed that by the purshis filed by the learned counsel for defendant No.1 he did not want to lead any oral evidence but its was not purhsis in respect of the documentary evidence. Documents were already produced including the Will and the defendant No.1 stated before the trial Court that no further evidence was required to be led. I am afraid, on the basis of these glaring facts no justification can be traced in the order of remand made by the Appellate Court. THE order of remand is never passed as a matter of routine or for mere asking. Once the trial Court has examined the case on the basis of the available evidence and has reached conclusion, unless a clear case for remand was made out, the Appellate Court ought not to have remanded the matter. An order of remand under Order 41 Rule 23a cannot be made without considering the merits of the findings recorded by the trial Court. Not only that the merits of the findings recorded by the trial Court are required to be seen but has to be reversed and set aside and if the appellate Court finds that retrial was necessary, a case for remand could be made out. Prior to the year 1976 even where amended provision of Order 41 rule 23a CPC was not there it was consistently held by the Court that an order of remand can be made only if the finding of the lower court is reversed in appeal. THE legal position is now clarified by amending Order 41 Rule 23a which empowers the Appellate Court to remand the matter where the decree is challenged in appeal having been passed in a suit otherwise on a preliminary point and the decree reversed in appeal and retrial is considered necessary. Obviously, therefore, whenever a remand is made under Order 41 Rule 23a the findings recorded by the trial Court have to be examined and reversed in appeal and then retrial, if considered necessary may be ordered. In the present case the Appellate Court has exercised its power of remand under section 41 Rule 23a when pre-requisite conditions for remand were not made out.