DHANKUNWARBAI Vs. RAMKUNWARBAI

JUDGEMENT

(1.) The present appeal has been filed under Order 43 Rule1(u) of CPC arising out of the judgment and decree of remand dated 24.1.2019 passed by the Additional District Judge Chanderi, District Ashok Nagar in Civil Appeal No.10- A/2017 reversing the judgment and decree dated 24.11.2015 passed by the 2nd Civil Judge, Class-II, Chanderi, District Ashoknagar in Civil Suit No. 118-A/2015.

(2.) It is being argued by learned counsel for the appellant that a Civil Suit was declaration of 1/4th share and permanent injunction in the suit land and house was filed by the plaintiff claiming herself to be daughter of Amar Singh. She has prayed for the relief that sale deed dated 8.7.2009 executed by the defendant No.1 Rampa @ Ramprasad in favour of defendant No. 2-4 be declared as null and void against the rights of the plaintiff. The defendants gave their appearance and has filed written statement denying the plaint allegations and contended that the plaintiff is not the daughter of Amar Singh nor plaintiff No.2 Rupiyabai is wife of Amar Singh nor they are successors of Amar Singh. Plaintiff Ramkunwarbai is daughter of Rupabai wife of Girwar and the plaintiffs have also received the property of Giriwar. They have denied all the allegations in the plaint and has prayed for dismissal of the suit.

(3.) The learned trial court after framing of issues and recording of evidence and after hearing the argument advanced by both the parties dismissed the Civil Suit vide its judgment and decree dated 24.11.2015. A Civil Appeal was preferred by Ramkunwarbai before the lower Appellate Court and at the time of final arguments two applications, one under Order 1 Rule 10 CPC and another under Order 6 Rule 17 CPC were filed which were opposed by the defendants by filing the reply. The learned lower appellate court after hearing the parties has allowed the applications as well as appeal filed by the respondent No.1/plaintiff and has set aside the judgment and decree passed by the trial court dated 24.11.2015 and the matter has been remanded back as a whole to the trial court for deciding the suit afresh on merits, vide judgment and decree dated 24.1.2019. It is argued by learned counsel for the appellant that learned lower Appellant Court has erred in passing the impugned judgment and decree of remand without taking into consideration the law applicable to the present facts and circumstances of the case. The matter has been remanded without considering the merits of the case and without reviewing the findings of judgment and decree passed by the trial court and without considering the question of title and possession the learned lower Appellate court has only considered the defect of impleadment of necessary parties in the suit. The first Appellate Court has not taken note of the fact that even after imleadment of some of proposed persons as parties to the suit, no benefit could have been extended to the plaintiff looking to the nature of the case pleaded by the plaintiff. Issue no. 4 was framed by the learned trial court on the objection being taken by the defendants in the written statement regarding the fact that plaintiff has not impleaded the proper persons as parties to the suit. The plaintiffs despite their being specific objection and in issue has not bothered to implead proper parties. The trial court has dismissed the Civil Suit on several grounds including that of not impleading the necessary parties. The learned lower appellate Court was bound to consider all the relevant grounds and was bound to set aside the findings given by the trial court declaring them to be unreasonable and should have observed that it is a fit case wherein retrial is necessary and thereafter the remand order can be passed but without considering the aforesaid aspect of the case out rightly the order impunged has been passed without setting aside all the findings given by the trial court.