Case Note & Summary
The present Second Appeal was filed by the original defendants (appellants) against the judgment and decree dated 04/07/2005 passed by the learned 2nd Ad-hoc Additional District Judge, Achalpur in Regular Civil Appeal No. 70/1999, whereby the First Appeal of the respondent/plaintiff was partly allowed, setting aside the decree of the Trial Court. The plaintiff had filed a suit for partition and possession of half share in suit field Gat No. 178 admeasuring 1.54 R situated at Mouza Kural, Purna, Ta. Chandur Bazar, District Amravati. The deceased Janglaji Amzare was the owner of the suit field. He had two wives: Mulabai (first wife) and Tulsabai (second wife, defendant No.2). From Mulabai, he had a daughter Sitabai (deceased) and from Tulsabai, a daughter Deokabai (defendant No.3). The plaintiff Rukhmabai is the daughter of Sitabai. After Janglaji's death on 30/09/1989, half portion of the suit field came to the share of his two wives in partition. After Mulabai's death, her daughter Sitabai became owner of half portion, and after Sitabai's death, plaintiff Rukhmabai became owner of half portion. Tulsabai and Deokabai became owners of the other half. The names of Tulsabai and Deokabai were recorded as owners in revenue records. The plaintiff preferred a revenue appeal against the mutation, which was allowed, but the defendants filed a civil suit challenging the revenue order. The Trial Court dismissed the suit. The First Appellate Court reversed the Trial Court's decree and partly allowed the appeal, granting partition. The defendants filed the present Second Appeal. The High Court found that the First Appellate Court's judgment did not comply with Order 41 Rule 31 CPC as it failed to frame points for determination, discuss evidence, or give reasons for reversing the Trial Court's findings. The High Court set aside the appellate decree and remanded the matter to the First Appellate Court for fresh disposal in accordance with law, after giving opportunity to both parties to lead evidence if necessary. The Second Appeal was allowed.
Headnote
A) Civil Procedure - Appellate Court's Judgment - Order 41 Rule 31 CPC - Points for Determination - The First Appellate Court reversed the Trial Court's decree without framing points for determination, discussing evidence, or providing reasons for reversal. Held that such judgment is unsustainable and must be set aside, and the matter remanded for fresh disposal in accordance with law (Paras 7-10). B) Hindu Succession Act - Succession to Female Hindu - Section 15 - The property inherited by a female Hindu from her husband devolves upon her death to the heirs of the husband. The plaintiff claimed half share through her mother who inherited from her father. The court noted the applicability of Section 15 but did not decide on merits due to procedural defect (Para 4).
Issue of Consideration
Whether the First Appellate Court's judgment reversing the Trial Court's decree is sustainable when it fails to comply with Order 41 Rule 31 of the Code of Civil Procedure, 1908, by not framing points for determination, discussing evidence, or giving reasons for reversal.
Final Decision
The Second Appeal is allowed. The impugned judgment and decree dated 04/07/2005 passed by the 2nd Ad-hoc Additional District Judge, Achalpur in Regular Civil Appeal No.70/1999 is set aside. The matter is remanded back to the First Appellate Court for fresh disposal in accordance with law, after giving opportunity to both parties to lead evidence if necessary. The First Appellate Court shall decide the appeal afresh within six months from the date of appearance of parties. No order as to costs.
Law Points
- Order 41 Rule 31 CPC
- Partition
- Hindu Succession Act
- 1956
- Section 15
- Section 8
- Substantial question of law
- Reversal of findings
- Appellate court's duty
