SIRLA APPALASWAMY Vs. PATTIVADA APPALLAMMA

JUDGEMENT

(1.) Plaintiff-Respondent filed the suit for declaration that she was the owner of the disputed house and for permanent injunction and alternatively for partition. There is no dispute that the defendant is the brother of the plaintiff. The plaintiff claims that her brother, the defendant, was not heard of for a long period and the disputed property was given to the plaintiff in a family settlement by her mother in the year 1967. The defendant in his written statement while challenging the right of the plaintiff set up his own exclusive right and filed a counter claim with a prayer for recovery of possession. Both the plaintiff and the defendant in their respective pleadings admitted that they had two other sisters, Lenka Suramma and M. Venkamma, who though alive had not been impleaded as parties. The trial Court while dismissing the suit allowed the prayer for declaration of title and recovery of possession in the counter claim filed by the defendant. The lower appellate Court while setting aside the judgment and decree remanded the matter to the trial Court with a direction that the plaintiff should be given opportunity to add the two sisters as parties. The said judgment is under challenge in this appeal by the defendant.

(2.) Sri P.V. Ramdas, learned counsel appearing on behalf of the defendant-appellant has submitted that the appellate court should not have set aside the judgment and decree of the trial court and remanded the matter for impleading the two sisters as parties and at any rate it should have decided the matter itself without remanding the suit to the trial court. He has contended that since the daughters of the original owner, Late Sirla Taudi had no right in the property, as admitteedly Sirla had died prior to the coming into force of Hindu Succession Act, there was no necessity to implead the two other sisters and the order of remand cannot be sustained. The learned counsel for the respondent while supporting the order of remand submitted that since the defendant was not heard of for pretty long time more than seven years, there was a prosecution of his civil death in view of Sec. 108 of the Evidence Act.

(3.) On going thought the materials on record, I do not find any justification to interfere with the order of remand passed by the lower appellate Court. The plaintiff, one of the daughters of Late Sirla Taudu has claimed exclusive right over the property and alternatively for partition whereas the defendant in his counter claim has also claimed exclusive right. Admittedly, the plaintiff and defendant have two other sisters who had not been impleaded as parties. No effective and binding decree can be passed in the absence of two sisters of the parties. Since the appellate court felt it necessary that both the sisters who had been left out should be impleted it parties, it was proper to remand the matter to the trial court for fresh disposal as by merely impleading them as parties in the appellate court the problem could not have been solved without giving the newly added parties adequate opportunity of being heard in the matter. Therefore, the contention of the appellant that the matter could have to been decided by the appellate Court itself cannot be sustained.