The First Appellate Court can remand a partition suit for inclusion of omitted joint family properties to ensure equitable distribution among coparceners.

JUDGMENT :

1. The appellant, who is original defendant No.2 in Regular Civil Suit No. 110 of 2012, has preferred this appeal challenging the judgment and decree dated 12.10.2022 passed by the learned District Judge-4, Jalna i.e. the learned First Appellate Court in Regular Civil Appeal No. 129 of 2017, setting aside the judgment and order dated 30.06.2017, passed by the learned trial Court i.e. the learned Civil Judge, Senior Division, Jalna dismissing Regular Civil Suit No. 110 of 2012 filed by the present respondent No.1/plaintiff and remanding back the matter to the learned trial Court with direction to decide issue No.3 afresh. The learned First Appellate Court has also given an opportunity to the plaintiff i.e. respondent No.1 to include entire joint family properties in the suit.

2. Background facts are as under :-

The appellant is the original defendant No.2 whereas respondent No.1 is the original plaintiff and the other respondents are remaining defendants. The plaintiff had filed Regular Civil Suit No. 110 of 2012 for partition and declaration before the learned trial Court. He had sought partition of the suit properties, namely agricultural land bearing Gut No. 61 admeasuring 1 H 56 R and land Gut No. 62 admeasuring 10 H 25 R comprising lands Survey No. 25 and 26 situated at village Devmurti Taluka and District Jalna. It was also contended that original defendant No.3 Ramlal had sold 4 Acres land out of block No. 62 to defendant No.6 Ramesh by way of registered sale deed dated 13.05.2005 for the consideration of amount Rs. 2,04,000/- and therefore, declaration was also sought by the plaintiff that the aforesaid sale deed is not binding on his share. It is significant to note that respondent No.1/plaintiff in the suit itself had contended that one plot situated at Bhokardan Road, Jalna was also part of joint family property, but since he was unable to pay Court fees he waived right of partition and share in the said plot.

Thus, the plaintiff had claimed partition of his 1/6th share in the suit properties.

3. Defendant No.1, despite appearance, failed to file written statement, whereas defendant Nos. 2 and 3 contested the suit under written statements (Exh.31 and 45) respectively by denying all the adverse allegations made against them. According to defendant No.2 i.e. the present appellant, the suit property is his separate property under partition deed dated 05.03.1999. The mutation entry to that effect has also been made in the revenue record. Hence, he prayed for dismissal of the suit. As against this, defendant Nos. 4 and 5 vide their written statement ( Exh.37) admitted the claim of the plaintiff by contending that the parties to the suit are having equal share in the suit property, and therefore, the sale deed executed in favour of defendant No.6 is not binding upon them. They also contended that suit property is not self acquired property of defendant Nos. 2 and 3 and no partition had effected in respect of the suit properties among the family members. On the other hand, defendant No.6 also resisted the claim under his written statement ( Exh.33) and came with the case that before purchasing the part of the suit property he had made requisite inquiry. As such, he prayed for dismissal of the suit.

4. The learned trial Court, after conducting the trial, though held that the suit properties are ancestral properties and that the sale deed dated 13.05.2005 is illegal, null and void, but dismissed the suit on the sole ground that all the joint family properties were not included in the suit. The plaintiff i.e. present respondent No.1 being aggrieved by the said dismissal preferred an appeal before the learned First Appellate Court as mentioned above and the learned First Appellate Court by allowing the same, remanded the matter back to the trial Court for hearing on issue no.3 by giving an opportunity to the parties to adduce the evidence. Hence, this appeal.

5. The learned counsel for the appellant vehemently submitted tha