Remand orders must adhere to strict procedural requirements; mere routine remanding without due diligence in evidence withholding is impermissible.

ORDER :

Hirdesh, J.

This misc. appeal under Order 43 Rule 1(u) of CPC has been filed by appellant- defendant No.2 assailing the impugned judgment and decree dated 24-07-2019 passed by Second Additional District Judge, Karera, District Shivpuri in Regular Civil Appeal No.22-A of 2016, whereby the appeal filed by respondents no.1 and 2/plaintiffs has been allowed and while allowing the application of plaintiffs under Order 41 Rule 27 of CPC, the judgment and decree dated 06-02-2016 passed by Additional Civil Judge, Class-I, Karera, District Shivpuri in Civil Suit No. 55-A of 2013 has been set aside and the matter has been remanded to the trial Court for fresh adjudication.

(2) Necessary facts for disposal of present appeal, in short, are that a civil suit was filed by plaintiffs seeking declaration and injunction. It was pleaded that they are owners and are in possession of 1/2 share of land bearing survey no. 1103, 1104, 1106, 1117, 1672, admeasuring are 2. 53 hectares and land bearing survey nos. 966, 971, 976, 1002, 1003, 1005, 1006 and 1007 admeasuring area 29.39 hectares situated in Village Jujhai, Tehsil Karera, District Shivpuri. Plaintiffs further sought declaration that the sale deed dated 14.05.2009 executed in favour of defendant No.2/appellant to be void. It was pleaded that plaintiffs and defendant No.1 are members of joint family and Manger of Family was Rajaram (father of defendant No.1) and grandfather of plaintiff No.1 and father-in-law of plaintiff no.2. During his lifetime, Rajaram divided property in between his both sons Damodar Prasad and Vasudev Prasad. Rajaram died on 07-12-1982 and his wife Khesar died in 1995. Heirs of Rajaram got muted the land in dispute in their favour. Father of plaintiff no.1 raised an objection and filed an appeal before the SDO, Karera whereby matter was remanded to Tahsildar. Thereafter, defendant No.1 given his consent for mutation of name of father of plaintiff No.1 on 1/4th share and father of plaintiff No.1 fell in ill and died on 21-10- 2009. The Tahsildar again passed an order of mutation in favour of defendant No.1 and defendant No.1 sold the property in question 1/4th share to defendant no.2.

(3) Defendants filed written statement and denied plaint averments and pleaded that plaintiffs and defendants were not members of joint family. Defendant no.1 earned disputed property from his self-earning and denied the oral partition and about the consent for mutation in the name of Damodar. It was further pleaded that Tahsildar has rightly passed order of mutation and father of plaintiff No.1 did not object the proceedings of Tahsildar nor file any appeal or revision. He has sold the property in dispute to defendant No.2 in order to meet household-expenses. It was further pleaded that the partition dated 05-01-1975 is an unregistered document and on the basis of such partition, no right is accrued in favour of plaintiffs and such partition is not admissible in evidence. He has sold the property in question to defendant No.2 for consideration of Rs.1,43,500/-.

(4) On the basis of pleadings of parties, trial Court framed issues and after recording the evidence of parties, dismissed the suit filed by the plaintiffs vide judgment and decree dated 06-02-2016 holding that plaintiffs failed to prove that the disputed land was of father of plaintiff no.1 and husband of plaintiff no.2 Damodar Prasad and the so-called partition is not a registered document, therefore, the same cannot be admissible in evidence and the so-called consent given