Case Note & Summary
Background: The dispute arose from a suit for partition and declaration concerning ancestral properties of a Hindu Undivided Family. The Appellant, Shivappa, was Defendant No.2, a purchaser of suit schedule Item No.5; Respondents Nos.1 and 2 were among the Plaintiffs, including deceased Plaintiff No.1 Sharawwa. The Plaintiffs claimed that Item No.5, agricultural land in Amminbhavi village, was sold by Madiwalappa, the propositus and Karta of the family, to Defendant No.2 by registered sale deed dated 28.06.1982 for Rs.16,000. They alleged the sale was sham, bogus, without legal necessity, and not binding on their shares. Facts: The suit O.S. No.143 of 2015 was filed on 17.03.2015 before I Addl. Senior Civil Judge & CJM, Dharwad, seeking partition of Items 1 to 5 and declaration that the sale deed in favour of Defendant No.2 was illegal, null and void. The Trial Court framed five issues, including whether the parties constituted HUF and properties were ancestral, whether partition took place on 04.01.1980, whether sale of Item No.5 was for family legal necessity, and relief. The Trial Court decreed the suit in part: it granted partition for Items 1 to 4 by holding properties ancestral and allocating 1/3rd shares, but dismissed the declaration for Item No.5. The Trial Court found no credible evidence of Madiwalappa's bad habits, sale deed valid, consideration paid, possession handed over to Defendant No.2, and suit barred by limitation under Articles 58 and 59 of Limitation Act because challenge was made 33 years after execution. Legal Issues: The core question before the Supreme Court was whether the High Court's remand of Item No.5 to the Trial Court for fresh consideration was justified and lawful. This involved the adequacy of issues framed by Trial Court, the duty of first appellate court under Order 41 Rule 23 CPC and Section 107 CPC, and whether limitation being a question of law required specific issue. Arguments: The Appellant/Defendant No.2 argued that remand was illegal and unwarranted; the issues framed were comprehensive, pleadings complete, and the first appellate court ought to have decided the appeal itself rather than remanding, relying on Ashwini Kumar. The Respondents/Plaintiffs argued that remand did not prejudice either party and was necessary to determine limitation together with possession; further evidence would help Plaintiffs prove knowledge of fraud or sham within limitation and Defendant No.2 prove exclusive possession. Court's Analysis: The Supreme Court referred to precedents. In Ashwini Kumar, the Court held High Court should not ordinarily remand under Order 41 Rule 23 CPC merely because trial court reasoning was wrong; it should decide appeal on material available to avoid delay. In P. Purushottam Reddy, it reiterated that first appellate court can decide all questions of fact and law. In Zarif Ahmad, it observed Section 107 CPC empowers appellate court to remand but also to take additional evidence. The High Court had found that Trial Court did not frame issue on sham document, limitation, or possession, and therefore remanded. The Supreme Court was considering whether this remand was avoidable. Decision: The provided judgment text ends before recording the final operative direction. The Court had granted leave and framed the issue, heard counsel, and referred to precedent; no final order is included in the excerpt. Therefore, the final decision and ratio decidendi are not available from the provided text.
Headnote
A) Civil Procedure - Remand under Order 41 Rule 23 CPC - First appellate court should not ordinarily remand merely because trial court reasoning was wrong; it must decide appeal on material available to avoid delay and prejudice - Code of Civil Procedure, 1908, Order 41 Rule 23 - The High Court remanded Item No.5 of plaint schedule to Trial Court for fresh issues and evidence after only partly reversing trial court; Supreme Court referred to Ashwini Kumar holding that remand orders lead to unnecessary delays and should not be passed when material was before High Court; Held that remand is not a matter of course but guided by judicial discretion (Paras 14.1, 10). B) Civil Procedure - Powers of First Appellate Court - Section 107 CPC and Order 41 Rule 24 CPC empower appellate court to take additional evidence or require such evidence, so remand may be avoided - Code of Civil Procedure, 1908, Section 107, Order 41 Rule 24 - The High Court remanded for further evidence, but Supreme Court noted appellate court itself has power to take additional evidence; reliance on Zarif Ahmad that Section 107 CPC empowers appellate court to remand but also to take evidence; Held that first appellate court should exercise available powers rather than remanding unnecessarily (Paras 14.1). C) Limitation - Suit for Declaration Challenging Sale Deed - Limitation is a question of law and court must frame issue even if not pleaded; challenge to sale deed after 33 years must satisfy Articles 58 and 59 Limitation Act - Limitation Act, 1963, Section 3(1), Articles 58, 59, 109 - Trial Court held suit barred by limitation as challenge made 33 years after sale deed; High Court held Trial Court should have framed limitation issue because limitation is question of law; Held that limitation issue must be specifically determined along with question of possession (Paras 8.2, 8.4, 7.6). D) Civil Procedure - Framing of Issues on Sham Document and Possession - Specific plea of sham sale deed and lack of possession requires distinct issue; failure to frame such issue vitiates adjudication - Code of Civil Procedure, 1908 - The Plaintiffs pleaded that sale deed dated 28.06.1982 was sham and not acted upon; High Court found Trial Court did not frame issue on sham nature or possession; matter remitted to frame issues and permit evidence; Held that specific issues are necessary for proper adjudication of declaration and possession (Paras 8.1, 8.3, 8.5).
Issue of Consideration
Whether the High Court's remand of Item No. '5' of the plaint schedule to the Trial Court for fresh consideration of sham sale deed, limitation, and possession was justified and lawful.
Law Points
- First appellate court should not ordinarily remand under Order 41 Rule 23 CPC merely because trial court reasoning wrong
- first appellate court can decide all questions of fact and law on available material
- limitation is a question of law requiring specific issue
- appellate court has power to take additional evidence under Section 107 CPC and Order 41 Rule 24 CPC
- sham document allegation requires specific issue and evidence on possession
- remand causes delay and prejudice.
