Vishnudeo Narayan, J.
1. This appeal at the instance of the defendant-appellant has been preferred against the impugned judgment and decree dated 18.10.2002 and 29.10.2002 respectively passed in Title Appeal No. 28 of 2000 by Shri Binod Kumar Lal, Additional District Judge, Fast Track Court No. 4, Hazaribagh whereby and whereunder the judgment and decree of the trial Court passed in Title (Partition) Suit No. 79 of 1995 were set aside and appeal was allowed and the case was remitted to the trial Court for a fresh decision.
2. The plaintiff-respondent had filed the said suit for declaration of the registered deed of gift dated 15.4.1988 executed by the original defendant No. 1 in favour of his wife defendant No. 2 as null and void and collusive as the original defendant No. 1 was not competent to execute the deed of gift and the said deed of gift is not binding on the plaintiff and also for partition of the suit property detailed in Schedule-A of the plaint for carving out his half share therein by appointment of the Survey Knowing Pleader Commissioner. The suit land appertains to Plot No. 902 of Khata No. 6 and Plot Nos. 903 and 907 of Khata No. 2 having an area of 1.71 acres situate at village Lodahama, Police Station Ramgarh, District-Hazaribagh,
3. The case of the plaintiff-respondent, in brief, is that Chamu Gope, the common ancestor of the parties died leaving behind his four sons, namely, Khedan Gope, Bhukhlal Gope, Nanhak Gope and Balak Gope. Said Balak Gope and Nanhak Gope had died one after another prior to 1925 leaving behind their daughters and they have no son. Khedan Gope thereafter died in the state of jointness with his brother Balak Gope who inherited the land of Khata Nos. 2 and 6. The said Balak Gope had three sons, namely, Jhutan Gope, Bansi Gope and Bishan Gope. The said Jhutan Gope died leaving behind his three sons, namely, Sona Gope (who died during the pendency of this appeal before the Appellate Court), Chetlal Gope and Peman Gope and they are the plaintiffs in the suit. Bansi Gope is the defendant in the suit and he had also died during the pendency of the appeal before the Lower Appellate Court and his heirs have been substituted in his place. Bishun Gope died in the year 1940 leaving behind his married daughters who had no concern or connection with the suit land. The suit land appertains to Khata Nos. 2 and 6 aforesaid, which stands in the name of the Khedan Gope as Adh-Bataider Kaimi. The further case of the plaintiff-respondent is that all the four sons of Chamu Gope who were the members of joint Hindu Mitakshara family and there was unity of title and possession between them in respect of the suit land and said Khedan Gope had died in the state of joint-ness with his brother Balak Gope. After the death of Balak Gope, his three sons aforesaid jointly inherited the suit land and after the death of Bishun Gope the suit land was inherited by Jhutan Gope and Bansi Gope jointly and after the death of Jhutan Gope, the plaintiffs along with Bansi Gope inherited the same jointly and they are in joint cultivating possession over the same and there has been no metes and bounds partition between the plaintiffs and the defendant in respect thereof. The further case of plaintiff is that Bansi Gope had executed a deed of gift on 15.4.1988 in favour of his wife defendant No. 2 Karmi Devi in respect of the suit land which is a joint family property of the parties to this case and the said deed of gift of joint family land is void and original defendant No. 1 was not competent to execute the deed of gift in respect thereof and the said deed of gift was also never acted upon. It is also alleged that the plaintiffs came to know about the said deed of gift on 1.6.1995 and after obtaining its certified copy they came to know that the original defendant No. 1 is claiming exclusive possession over the suit land on the ground of having obtained the said land by settlement from the landlady Maharani of Ramgarh, Padma in Sambat 2003 who had acquired the said land by virtue of auction sale vide Case No. 41 of 1947-48. It is also alleged that on enquiry it transpired that the suit land was never auction sold in the said case and the original defendant No. 1 without any exclusive right, title and interest and possession in respect thereof gifted the suit land on the basis of a forged hukumnama in favour of his wife defendant No. 2 who was never come in possession over the same. It is alleged that still the suit land is in joint cultivating possession of the parties and the mutation in favour of the defendant No. 2 in respect of the suit land is illegal and it is a collusive order without making any enquiry. Thereafter the original defendant being confronted about the illegal deed of gift promised to execute a deed of nullity in respect of thereof but inspite of several demands they evaded to execute a document in respect thereof and hence the necessity of the suit.
4. The case of the defendant-appellant, inter alia, is that in the life time of Chamu Gope all his four sons were separate and according to their physical possession of the land, the cadastral survey records of right was prepared. Khedan Gope died issueless in the year 1932 and after his death, the ex-landlady resumed the suit land and thereafter original defendant Bansi Gope in auction sale made by the ex-landlady got settlement of the suit land on 31.3.1948 (Sambat 2003) and there was no unity of title and possession between the parties over the suit land and none of the sons of Chamu Gope was ever joint. It is alleged that Nanhak Gope died issueless in the year 1940 and Bhukhlal Gope died in the year 1938 leaving behind his widow and one daughter Rukhni married to Bahira Gope, who settled as gharjamai inherited the properties left by Bhukhlal Gope. It is also alleged that Bishun Gope died in the year 1958 leaving behind his three daughters and they had right to get partition of the land of Khata Nos. 38, 39, 9 and 48 and other Khatas which have not been brought by the plaintiff in the suit as suit properties and the case of the plaintiff is not maintainable for partial partition. It is alleged that the survey authority at the time of the cadastral survey after enquiry recorded the suit land appertaining to Khata Nos. 2, 6 and 9 in the name of. Khedan Gope who died issueless. The suit land were abandoned and as such the landlady resumed the suit land and thereafter taking Salami settled the suit land with Bansi Gope and since then he is in exclusive possession over the same as of his rights and he has rightly executed a deed of gift in favour of his wife defendant No. 2 and the said deed of gift is valid, legal and in accordance with law and the suit lands stands mutated in the name of defendant No. 2 after proper enquiry. It has also been alleged that the suit of the plaintiff is bad for non-joinder of all co-sharers including the three daughters of Bishun Gope and they are the necessary parties to the suit and in their absence, the suit is not maintainable.
5. In view of the pleadings of the parties, the learned trial Court has framed the following issues for adjudication: --
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs any cause of action for the present suit?
(iii) Is the suit barred by law of limitation, waiver, acquiescence and estoppel?
(iv) Is the suit bad for non-joinder of necessary party?
(v) Is the suit undervalued and the Court fee paid insufficient?
(vi) Is the suit property joint family property or the same is self-acquired by the defendant No. 1 ?
(vii) Is the deed of gift in question valid and legal?
(viii) Are the plaintiffs entitled to the decree as prayed for?
(ix) Are the plaintiffs entitled to any other relief or reliefs?
6. In view of the oral and documentary evidence on the record, the learned trial Court had decided all the issued framed by it in favour of the defendant and while deciding issue Nos. (vi) and (vii) it has been held that the suit land was not the joint family property and Khedan Gope was not joint with his brother and after the death of Khedan Gope his next reversioner did not pay the rent of the suit land which was auctioned sold and settled with original defendant No. 1 Bansi Gope and the suit land was the self-acquired property of original defendant No. 1 and he was competent to execute the deed of gift in question and the deed of gift is legal and valid and defendant No. 2 has acquired valid, right, title and interest in the suit land by virtue of the deed of gift and came in possession thereon. The learned trial Court further held that there is no unity of title and possession between the parties and the plaintiff is not entitled to get a decree of partition as prayed for as well as for declaration of the deed of gift as void. In deciding issue No. (iv), the learned trial Court, has held that Bishun Gope had died in the year 1958 leaving behind his daughters and they are the necessary party in the suit and thus on the basis of the plaintiffs' evidence and their pleadings the suit is bad for non-joinder of the necessary party. In view of the findings aforesaid, the learned trial Court has dismissed the suit of the plaintiff.
7. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs preferred Title Appeal No. 28 of 2000. The learned Appellate Court below on reappraisal and reappreciation of the evidence on the record set aside the judgment of the trial Court reversing all its findings except issue No. (iv) and allowed the appeal and remitted the case back to the trial Court for a fresh decision. The learned Appellate Court below had formulated the following points for adjudication in the appeal which runs thus : --
"(i) Whether the suit property devolved upon all the heirs of Balak Gope after his death.
(ii) Whether the property of Khedu Gope devolved upon his brother Balak Gope who was admittedly surviving reversioner or it was settled with Bansi Gope.
(iii) Whether the suit is maintainable for non-Joinder of daughters of Bishun Gope if he died after Hindu Succession Act came into force.
The learned Appellate Court has decided point Nos. (i) and (ii) in favour of plaintiff and held that in view of the presumption of jointness the interest whatsoever of Khedan Gope was in regard to the suit land devolved upon Balak Gope even if his other brothers were separate then his interest in regard to the suit land will automatically devolving upon Balak Gope being his full brother as well as of his next agnate of the recorded tenants of Khedan Gope and after the demise of Balak Gope his three sons will succeed his interest and accordingly Bishun Gope, Jhutan Gope and Bansi Gope had succeeded jointly the interest of Khedan Gope through their father Balak Gope in respect of the suit land. It was also held that the defendant has failed to prove the case of abandonment of the suit land and its resumption by the ex-landlady and the purchase of the suit land by the ex-landlady in the auction sale and its consequent settlement with Bansi Gope the original defendant and thus there is unity of title and possession between the parties over the suit land and thus the deed of gift is a void document which did confer no right and title in defendant No. 2. While deciding point No. (iii) it has been held that as per the evidence of the plaintiff on the record Bishun Gope had died in the year 1958 leaving behind his married daughters and these daughters are necessary party having share in the suit land and they have not been impleaded as party defendant by the plaintiff in view of his case that Bishun Gope had died in the year 1940. Therefore, the daughters of Bishun Gope are necessary party to the suit in view of the above findings it is necessary to remit the record to the learned trial Court to give an opportunity to the plaintiffs to implead the daughters of Bishun Gope as defendant and thereafter decide the suit on the basis of the written statement, if filed by the newly added defendants and also on the basis of the evidence. In the operative portion of the impugned judgment it has been stated that the suit is sent back to the trial Court to give an opportunity to the plaintiff to implead the daughters of Bishun Gope, and if the plaintiffs failed to implead the daughters of Bishun Gope, the legal consequence of non-joinder of necessary party shall follow. If the daughters of Bishun Gope appeared and filed their written statement and produce the evidence the learned Court shall decide the suit on the basis of the written statement and the evidence.
8. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant-appellant that the impugned order of remand is erroneous and it is not within Rules 23, 23-A and Rule 25 of Order XLI of the Code of Civil Procedure and the learned Appellate Court below has not recorded a finding that re-trial of the suit is necessary while reversing the judgment of the trial Court. It has further been submitted that it is the cardinal principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the Appellate Court because of lack of proper materials on record then only remand can be made. It has also been submitted that the defendant has specifically raised the issue of nonjoinder of necessary party i.e. the daughters of Bishun Gope deceased in their written statement and the plaintiffs at their own risk did not implead them as party defendant and as such the suit of the plaintiff was liable to be dismissed on that score alone and the Appellate Court below had no right to fill up the lacunae in the suit by remitting the case to the trial Court in respect thereof. It has further been submitted that a remand should not be ordered when the defeat in proceeding has been made due to the negligence or default of the party who will benefit by the remand and once the matter has been fairly tried between the parties it should not be re-opened and retired. It has also further been contended that Rule 24 of Order XLI, CPC is applicable in the present case as the evidence of the parties was on the record to decide the matter in controversy and it was incumbent upon the Appellate Court below to decide the appeal on merit and the Appellate Court below should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 of Order XLI, CPC as an unwarranted order of remand gives the litigation an underserved lease of life and it should be avoided and when the material was available before the lower Appellate Court it should have itself decided the appeal one way or the other and it could have considered the various aspects of the case mentioned in the impugned judgment of the trial Court and would have considered whether the order of the trial Court ought to be confirmed or reversed or modified and thus the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the cases of Ashwin Kumar K. Patel v. Upendra J. Patel and Ors., AIR 1999 SC 1125, Pasupuleti Venkateswarlu v. The Motor and General Traders, AIR 1975 SC 1409, Shrimati Kartar Devi v. Shrimati Pramila Das, 1993 (1) PLJR 576, Awadhesh Kumar Mishra and Ors. v. Sona Devi and Ors., 2003 (4) PLJR 810, Kailashpati Narain Singh and Ors. v. Bhola Sonani and Ors., AIR 1980 Patna 111, and Bishnu Patil v. Bajra Putel, AIR 1964 Orissa 250.
9. In contra, it has been submitted by the learned counsel for the plaintiff-respondent that there is no illegality or infirmity in the impugned judgment of remand after setting aside the judgment and decree of the trial Court on the ground and the case of the defendant has been accepted regarding the death of Bishun Gope in the year 1958 necessitating for impleading the daughters of Bishun Gope, who are the necessary parties and thus, the impugned order of remand of the Appellate Court below is within the ambit of Rule 23-A of Order XLI of the Code of Civil Procedure.
10. It is relevant to mention at the very outset that a Court of appeal has a power to remand a case only under Order XLI, Rule 23, Rule 23-A and Rule 25 of the Code of Civil Procedure. Rule 23 aforesaid has no application in the context of this case. Rule 23-A is relevant which runs thus : --
"23-A. Remand in other cases.--Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the some powers as it has under Rule 23."
From bare perusal of the aforementioned provision, it is evident that in order to invoke the jurisdiction of the Appellate Court in terms thereof a decree passed by the learned trial Court has to be reversed in appeal and a re-trial must be considered necessary and the conditions aforesaid being satisfied the Appellate Court can exercise the same power to remand under Rule 23-A as under Rule 23. All the cases of wholesale remand are, therefore, covered by Rules 23 and 23-A. It is pertinent to mention all this stage that the operative portion of the impugned judgment does not whisper that the learned Appellate Court has held that the re-trial of the suit is necessary. In this view of the matter Rule 23-A of Order XLI of the Code of Civil Procedure evidently has no application in this case. The Appellate Court below has also not adverted under Rule 24 of Order XLI, CPC for the reasons best known to him in this case. The proper course for the Court below was to follow the mandates of Rule 24 of Order XLI in this case when the evidence was sufficient to dispose of the matter before the Appellate Court. The order of remand for delivering a fresh judgment giving an opportunity to the plaintiff by filling up the lacunae by impleading the necessary parties in the case would definitely be illegal. It is the cardial principle of remand that whenever it is found for something which is vital and not been decided by the trial Court and the same cannot be decided by the Appellate Court because of lack of proper materials oh record; then only remand can be made but the appeal at hand does not conform to be provisions of Order XLI, Rule 23 or Rule 23-A or Rule 25 of the Code. Rule 24 of Order XLI of the Code is definitely applicable in the present case when it is admitted that there is already oral and documentary evidence on the record and in such a situation it is incumbent on the Appellate Court below to decide the appeal on merit. The first Appellate Court is a final Court of facts and all the questions of facts and law arising in the case were open before it for consideration and decision and it should not ordinarily remand a case under Rule 23-A to the trial Court merely because it considers that an opportunity should be accorded to the plaintiff to implead the daughters of Bishun Gope as party defendant being necessary parties. Such remand order leads to unnecessary delay and cause prejudice to the parties to the case when the matter was available before the lower Appellate Court it should have itself decided the appeal one way or the other. It should have considered the various aspects of the case mentioned in the judgment of the trial Court and should have considered whether an order of the trial Court ought to be confirmed or reversed or modified. In the case of Bishun Putel (supra) it has been observed that the remand should not generally speaking be ordered when the defect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand". The ratio of the cases of Ashwin Kumar K. Patel (supra), Pasupuleti Venkateswarlu (supra), Shrimati Kartar Devi (supra), Awadhesh Kumar Mishra and others (supra) and Kailashpati Narain Singh and others (supra) relied upon by the learned counsel for the defendant-appellant supports his contention and I find substance in the contention of the learned counsel for the defendant-appellant. Therefore, the impugned judgment of the learned Appellate Court below suffers with infirmity and illegality and it cannot be sustained.
11. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned judgment is set aside. The learned Appellate Court below is directed to decide afresh Title Appeal No. 28 of 2000 on merit in accordance with law and to apply its mind afresh after giving an opportunity of hearing to the learned counsel for both the parties within the period of the three months positively from the date of receipt of this order or from the date of the filing of a copy of this order by either of the parties which ever is earlier. However, there shall be no order as to costs.