2012 (2) ALL MR 330
High Court of Judicature at Bombay
R.M. BORDE
Smt. Shubhangi Nandakishor Gaidhani & Others
Versus
Damodar Govind Gaidhani & Others
APPEAL FROM ORDER NO. 782 OF 2011
Decided on : 14-11-2011
Civil Procedure Code, 1908 - Order XLI, Rule 23 - Order of remand by appellate Court. Since first appellate Court has all powers which trial Court has hence appellate Court should avoid unnecessary remand to trial Court.
The order passed by the first appellate Court remitting the matter back to the trial Court is also not in consonance with the principles laid down in Rule 23 of Order XLI of Civil Procedure Code. The appellate Court should avoid unnecessary remand to the trial Court which unnecessarily exhausts time and puts the parties to the hardship of facing prosecution for years together. In the instant matter, there is absolutely no need to remand the matter to the trial Court and the first appellate Court could have decided the controversy utter going through the record and the evidence placed by the parties. It is also to he noted that the first appellate Court has all the powers which the trial Court has and the first appellate Court could have exercised such powers for putting an end to the controversy.
1. Heard. Admit.
With the consent of parties, appeal is taken up for final disposal at the admission stage.
2. The appellant is taking exception to the judgment and decree passed by the District Judge3, Nashik in Regular Civil Appeal No.1/2007 decided on 2nd May 2011. The appellants-original plaintiffs instituted suit being Regular Civil Suit No.133/2000 claiming partition and separate possession of movable and immovable properties. The plaintiff No.1 is the widow of deceased Nandkishor Gaidhani and daughter-in-law of defendant No.1Shri Damodar Govind Gaidhani. The plaintiff Nos.2 and 3 are the daughters of plaintiff No.1 out of wedlock with deceased Nandkishor Gaidhani. Defendant No.2Arvind Gaidhani is the son and defendant Nos.6 and 7, namely Usha and Mangal are daughters of defendant No.1. Defendant Nos.3 to 5 are the brothers of defendant No.1. According to the plaintiffs, deceased Nandkishor and defendant No.1 constituted a Hindu Joint Family. Nandkishor, the husband of plaintiff No.1 died on 26th January 1993. The other defendants were not maintaining the plaintiffs, as such, she was compelled to reside separately. The plaintiffs claimed partition and separate possession of the immovable property situated in villages Deolali, Lakhalgaon, Palse and Amboli as well as movable property like cash amount, ornaments etc. The defendants were served with the suit summons. They caused their appearance and resisted the suit. Defendant Nos.6 to 15 failed to file their written statement, as such, suit was proceeded ex parte against them. Defendant Nos.1 and 2 resisted the suit by filing their written statement. They admitted the relationship between the parties. However, they contended that there was love marriage of plaintiff No.1 with deceased Nandkishor and, therefore, parents of plaintiff No.1 were opposed to the said marriage and did not participate in the marriage ceremony. The plaintiff No.1 did not get Stridhan from her parental house. Defendant Nos.1 and 2 admitted death of Nandkishor, however, they denied that he was a member of Hindu Undivided Family and that suit property is joint family property. Defendant Nos.1 and 2 further admitted that deceased Mhalsabai Govindrao Gaidhani disposed of property as mentioned in Schedule-A by her last will dated 8th September 1989. However, they contended that the land at Survey No.237A/13A, 237A/14 (plot No.14) and plot No.22 as mentioned in Schedule-A is self acquired property of defendant No.1. He has purchased plot No.14 in the year 195758 in the name of Mhalsabai and with the help of Mhalsabai constructed a building in the year 1960. Defendant No.1 has purchased plot No.22 in the year 1967 and defendant No.3 has half share in the said open plot. The defendants denied that landed property situated at village Lakhalgaon as mentioned in Schedule-B was purchased by deceased Nandkishor and defendant No.2 and, therefore, they have ½ share in the said property. Defendant Nos.1 and 2 further contended that defendant No.1 purchased the land block No. 298 in the name of his wife Lilavati and block No.303 in the name of deceased Nandkishor and defendant No.2 and, thus, this property is self acquired property of defendant No.1. It is further contended that Nandkishor was in service of private company since 1982 and he was getting monthly salary of Rs.1,500/. It is contended that Nandkishor has never contributed the amount for purchase of the property. The defendant No.1 has purchased properties in the names of his wife and sons. He purchased a landed property at village Amboli out of the amount which he received at the time of his retirement. Defendants further contended that the lands situated as village Palse is ancestral property and all the shareholders are cultivating the said land as per their shares. So far as claim in respect of share in the cash amount as well as in the ornaments is concerned, the same has been denied by the defendants. Similarly, defendant Nos.3 to 5 have
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