Appellate courts can remand cases for retrial when necessary parties are absent, emphasizing the importance of inclusive representation in ancestral property disputes.

JUDGMENT :

BIBHU DATTA GURU, J.

1. By the present appeal under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (for brevity ‘the CPC’) the appellants/plaintiffs challenging the impugned judgment and decree dated 18/11/2025 passed by the learned District Judge, Patan, District Durg C.G. in New Civil Appeal No. 190-A/2024 (Old Appeal No. 94-A/2023) (Ashwani Kumar & Anr. Vs. Hemant Kumar Sahu & Ors.) whereby the judgment and decree passed by the learned Civil Judge, Class-I, Patan, District Durg, C.G. in Civil Suit No. 08A/2021 dated 14.08.2023 (Hemant Kumar Sahu & Ors. Vs. Aswani Kumar & Ors.) has been set-aside and the matter has been remanded to the trial Court for fresh adjudication.

2. For the sake of convenience, the parties would be referred as per their status before the learned trial Court.

3. The plaintiffs preferred a suit seeking a declaration, permanent injunction and partition, pleading inter alia that defendant No.1 Ashwani Kumar and Bholaram (father of plaintiffs No. 1 to 4 and husband of Plaintiff No. 5) were real brothers. Bholaram passed away in the year 2012. In the name of late Bholaram, agricultural lands situated at Village Bohardih, Patwari Halka No. 19, Revenue Circle Bhilai, Tehsil Patan, District Durg, bearing Khasra Nos. 119/2, 119/3, 154, 155/1, 155/2, 155/3, 289/1, 289/2, 289/3, 290/1, 290/2, 290/3, 386, 424, having areas respectively 0.240, 0.360, 2.550, 1.350, 0.330, 0.160, 0.230, 0.320, 0.280, 0.280, 0.210, 0.350, 0.030, 0.450 hectares, totaling 14 khasras and total area 7.940 hectares, and Khasra Nos. 522, 32, 396/1, 513, 386 having areas respectively 0.13, 3.21, 0.69, 2.24, 0.03 hectares totaling 6.30 hectares, were recorded in his name as landowner in the year 1994–95. During his lifetime, late Bholaram had filed a civil suit disputing that defendant No. 1, Ashwani Kumar, was not his real brother; however, the said suit was dismissed on 02.04.2005. Defendant No.1 had also submitted an application before the Tehsildar for recording possession, pursuant to which an order dated 16.05.2001 was passed directing that possession of the disputed land be recorded in the name of Defendant No.1. Thus, the plaintiffs and Defendant No. 1 became joint landowners of the disputed property. Late Bholaram had also filed a claim seeking declaration that the sale of land bearing Khasra No. 32, area 3.21 hectares, executed in favor of Janaki Bai, be declared null and void and not binding upon Ashwani Kumar, and accordingly, he was declared co-owner in respect of the said disputed land. Similarly, late Bholaram had sold lands bearing Khasra Nos. 255, 31, 396/1, 513, and 386. By judgment and decree dated 31.08.2017, Defendant No.1 was declared co-owner in respect of the said lands. Therefore, the disputed land is joint family property of the plaintiffs and defendants, and no partition has taken place till date. However, Defendant No.1, without effecting any partition in favor of the legal heirs of late Bholaram, colluded with the Patwari and got his name recorded in the revenue records. Out of the disputed lands, defendant No. 1 has sold Khasra Nos. 154 and 154/1. Hence, the plaintiffs claim that they are the sole title holders and persons in possession to the extent of their share in the suit property, and that they are entitled to 1/2 share in the aforesaid lands.

4. In the said Civil Suit, the defendants No.1 and 2 submitted their written statement and denied the plaint averments. They submitted that Bholaram, had ousted Ashwani Kumar from the hous