Chattisgarh High Court
Smt. Geeta Devi Modi vs Prakash Chand Modi (Dead) Through Lrs … on 23 March, 2026
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2026:CGHC:13850
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
(Judgment Reserved on 27/01/2026)
( Judgment Delivered on 23/03/2026)
(Judgment Uploaded on 23/03 /2026)
FA No. 3 of 2023
1. Madan Lal Modi (Abated) Through Legal Representatives
1a. Hari Prasad Modi (S/o Madan Lal Modi) (Dead) Through Lrs.
1a(i) Smt. Shakuntala Modi W/o Hari Prasad Modi Aged About 75 Years
R/o Main Road, Korba (Chhattisgarh)
1.a(ii) Anand Modi S/o Hari Prasad Modi Aged About 45 Years R/o Main
Road, Korba (Chhattisgarh
1a(iii) Sapna Agrawal W/o Ashok Agrawal Aged about 59 Years, Address-
D 101, Maruti Lifestyle Mohaba Bazar, Behind RK Mall Raipur, District
Raipur, C.G. 492001
1a(iv) Pramila Agrawal, W/o Kailash Agrawal, Aged about 56 Years,
Address- Grihsthi Super Bazar, Marwahi Road Pendra District GPM,
C.G.
1.a(v) Mamta Agrawal, W/o Kundan Agrawal, Aged about 53 Years,
Address H No.308, Mahoba Bazar Road, Raipur, District Raipur, C.G.
492001
1a(vi) Arti Gupta, W/o Narendra Gupta, Aged about 50 Years, Address - E
- 541, 28, East Block, Near Radha Krishna Mandir, Samta Colony,
Raipur, District Raipur, C.G. 492001
1b. Murli Dhar Modi, S/o Madan Lal Modi (Dead) Through Lrs.
1b (i) Govind Modi S/o Murli Dhar Modi Aged About 54 Years R/o Main
Road, Korba (Chhattisgarh)
1b(ii) Rajesh Modi S/o Murli Dhar Modi Aged About 50 Years R/o Main
Road, Korba (Chhattisgarh)
1b(iii) Anjana Mittal W/o Krishna Gopal Mittal, Aged about 56 Years,
Address- Ambikapur Road, Mohalain Bhanta, Ward No.7, Korba, Dist.
Korba C.G. 495445
Digitally
ASHUTOSH signed by
MISHRA ASHUTOSH
MISHRA
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1c Badri Prasad Modi S/o Madan Lal Modi Aged About 72 Years R/o Main
Road, Korba (Chhattisgarh
1d Kailash Chand Modi, (Died), Through Lrs As Are Honble Court Order
Dated 06-09-2024
1d(i) Smt. Sharda Modi W/o Late Kailash Chand Modi, Aged About 64
Years R/o Main Road Korba (C.G.)
1d(ii) Gopal Modi S/o Late Kailash Chand Modi, Aged About 37 Years R/o
Main Road Korba (C.G.)
1.d(iii) - Monika Modi D/o Late Kaikash Chand Modi Aged About 33 Years
R/o Main Road Korba (C.G.)
1.d(iv) - Tripti Agrawal D/o Late Kailash Chand Modi W/o Ventesh Agrawal
Aged About 39 Years R/o Vinoba Nagar Bilaspur, (C.G.)
1e Santosh Kumar Modi S/o Madan Lal Modi Aged About 62 Years R/o
Main Road, Korba (Chhattisgarh)
All are R/o Main Road Korba (Chhattisgarh)
--- Appellants
versus
1. Raj Kumar Modi Adoptive Father Shri Prakash Chandra Modi Aged
About 58 Years R/o Main Road, Korba, Tehsil and District Korba, C.G.
2. Smt. Abhilasha Mati D/o Shri Prakash Chandra Modi Aged About 49
Years R/o Korba, Tehsil and District Korba, Post Office Korba (C.G.)
3. Ashok Kumar Modi S/o Shri Kishan Lal Modi Aged About 65 Years
Caste Agrawal, Occupation Business, R/o Main Road, Korba, Tehsil
And District Korba, Post Office Korba (C.G.)
4. Sanjay Kumar Modi S/o Shri Kishan Lal Modi Aged About 58 Years
Caste Agrawal, Occupation Business, R/o Main Road, Korba, Tehsil
And District Korba, Post Office, Korba (C.G.)
5. Raja Modi S/o Shri Kishan Lal Modi Aged About 48 Years Caste
Agrawal, Occupation Business, R/o Main Road, Korba, Tehsil And
District Korba, Post Office Korba (C.G.)
6. Smt. Rajkumari Devi D/o Shri Kishan Lal Modi Aged About 73 Years
W/o Shri Ganesh Prasad Agrawal, Caste Agrawal, R/o Asharam
Govind Ram, Sadar Bazaar Raigarh (C.G.)
7. Smt. Vijay Laxmi Goenka D/o Shri Kishan Lal Modi Aged About 70
Years W/o Shri Omprakash Goenka, Caste Agrawal, R/o Gudyari,
Raipur (C.G.)
8. Smt. Meera Goenka D/o Shri Kishan Lal Modi Aged About 68 Years
W/o Shri Anjani Kumar Goenka, Caste Agrawal, Occupation
Housewife, R/o Samta Colony, Raipur (C.G.)
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9. Smt. Asha Bansal D/o Shri Kishan Lal Modi Aged About 66 Years W/o
Shri Sudhir Bansal, Caste Agrawal, Occupation Housewife, R/o Durg
(C.G.)
10. Smt. Shyama Agrawal D/o Shri Kishan Lal Modi Aged About 62 Years
W/o Shri Pradeep Kumar Agrawal, Address C/o Dr. Ankita Tibrewal,
Ipgmer And Sskm Hospital, 244, Acharya Jagdish Chandra Bose
Road, Gokhel Road, Bhowanipore, Kolkata, West Bengal 700020.
11. Smt. Meena Agrawal D/o Shri Kishan Lal Modi Aged About 60 Years
W/o Shri Dilip Kumar Agrawal, Caste Agrawal, R/o Plot No. Bl/8,
Revenue Plot No. 494(P) Kalunga, Industrial Estate, Beldih, Rourkela
Distt. Sundergarh (Odisha) 770031.
12. Smt. Manju Agrawal D/o Shri Kishan Lal Modi Aged About 58 Years
W/o Shri Anil Kumar Agrawal, R/o Jawahar Nagar, Raipur (C.G.)
13. Smt. Sangeeta Agrawal D/o Shri Kishan Lal Modi Aged About 55
Years R/o Plot No. Bl/8, Revenue Plot No. 494(P) Kalunga, Industrial
Estate, Beldih, Rourkela Dist. Sundergarh (Odisha) 770031.
14. Smt. Ginni Bai (Dead Through Lrs.) W/o Shri Chandrabhan
Bhopalpuriya, D/o Smt. Laxmi Devi Modi.
14 a. Smt. Gita Devi Agrawal W/o Late Gajanand Agrawal (S/o Ginni Bai)
Aged About 70 Years R/o Gajanand Medical Store, Main Road Naila
Tehsil And District Janjgir-Champa (C.G.)
14 b - Rishi Kumar Agrawal S/o Late Chandrabhan Agrawal Aged About
70 Years Chandrabhan Rishi Kumar Medical Store Kachari Chowk,
Naila Tehsil And District Janjgir-Champa (C.G.)
14 c - Naresh Kumar Agrawal S/o Late Chandrabhan Agrawal Aged About
58 Years R/o Gajanand Medical Store, Main Road, Naila Tehsil And
District Janjgir-Champa (C.G.)
14d - Tara Agrawal D/o Late Chandrabhan Agrawal Aged About 55 Years
R/o Kanha Store, Main Road Jamnipalli, Darri, Korba, District Korba
(Chhattisgarh)
15. Smt. Narmadi Bai, Widow Shri Rekhchandra, D/o Smt. Laxmi Devi
Modi,(Dead Through Legal Representatives)
15 (a) Pawan Agrawal S/o Shri Rekhchandra Agrawal R/o Near Sati
Mandir, Birmitrapur Dist. Sundergarh (Orissa).
15 (b) Vimla Agrawal S/o Shri Rekhchandra Agrawal R/o Near Sati Mandir,
Birmitrapur Dist. Sundergarh (Orissa)
15 (c) Smt. Prema Argawal D/o Shri Rekhachandra Agrawal W/o Shri
Gopal Agrawal, R/o Near Sati Mandir, Birmitrapur Dist. Sundergarh
(Orissa)
15 (d) Smt. Shuleela Agrawal D/o Shri Rekhchandra Agrawal R/o Near
Sati Mandir, Birmitrapur Dist. Sundergarh (Orissa)
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15 (e) Smt. Lalita Agrawal D/o Shri Rekhchandra Agrawal R/o Near Sati
Mandir, Birmitrapur, Dist. Sundergarh (Orissa)
15 (f) Smt. Santosh Agrawal D/o Shri Rekhchandra Agrawal R/o Near Sati
Mandir, Birmitrapur Dist. Sundergarh (Orissa)
15 (g) Smt. Saroj Agrawal D/o Shri Rekhchandra Agrawal R/o Near Sati
Mandir, Birmitrapur, Dist. Sundergarh (Orissa)
16. Smt. Savitri Devi Agrawal (Dead Through Her Legal Representatives)
Widow Of Shri Ploolchandra Agrawal, D/o Laxmi Devi Modi,
16(a) Smt. Madhu Agrawal W/o Late Shri Shiv Agrawal (S/o Savitri Devi)
R/o Jugal Paan Masala, Near Saptdeo Mandir, Main Road, Korba,
Tehsil And District Korba (C.G.)
16(b) Jugal Agrawal S/o Late Shri Ploolchandra Agrawal R/o Jugal Paan
Masala, Near Saptdeo Mandir, Main Road, Korba, Tehsil And District
Korba (C.G.)
16(c) Shiv Agrawal S/o Late Shri Phool Chandra Agrawal R/o Jugal Paan
Masala, Near Saptdeo Mandir, Main Road, Korba, Tehsil And District
Korba (C.G.
16(d) Smt. Omi Agrawal D/o Savitri Devi W/o Shri Satyanarayan, R/o In
Front Of Masjid, Akaltara, Tehsil Akaltara, District Janjgir-Champa
(C.G.)
16(e) Smt. Santosh Agrawal W/o Shri Mohan Agrawal (S/o Savitri Devi),
R/o Agrasen Mohalla Baluda Road, Akaltara, Tehsil Akaltara, District
Janjgir-Champa (C.G.)
17. Radheshyam (Dead Through His Legal Representatives) S/o Shri
Dhanraj,
17(a) Smt. Chanda Devi W/o Late Shri Radeshyam Modi Aged About 74
Years R/o Champa, District Janjgir (C.G.)
17(b) Anil Kumar Modi S/o Late Shri Radheshyam Modi Aged About 58
Years R/o Champa, District Janjgir (C.G.)
17(c) Pawan Kumar Modi S/o Late Shri Radheshyam Modi Aged About 56
Years R/o Champa, District Janjgir (C.G.)
17(d) Vinod Kumar Modi S/o Late Shri Radheshyam Modi Aged About 51
Years R/o Champa, District Janjgir (C.G.)
17(e) Smt. Sarita Agrawal S/o Shri Suresh Agrawal Aged About 54 Years
D/o Late Shri Radheshyam Modi, R/o Umraroad Kharsiya, District
Raigarh (C.G.)
17(f) Smt. Shobha Agrawal W/o Shri Rajesh Agrawal Aged About 49 Years
D/o Late Shri Radheshyam Modi, R/o Budhwari Bazar, Post Sakti,
District Janjgir-Champa (C.G.)
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18. Dwarika Das (Dead Through His Legal Representatives) S/o Shri
Janki Das, Occupation Business
18 (A) Bisambhar Lal (Dead Through His Legal Representative) S/o Shri
Dwarika Das Aged About 28 Years
18(A)(a)Smt. Geeta Devi Modi W/o Late Shri Prasad Modi Aged About 70
Years R/o Raj Kamal Stores, Main Road, Korba, Tehsil And District
Korba (C.G.)
18(A) (b) Smt. Vidhya Agrawal W/o Shri Ashok Agrawal Aged About 57
Years D/o Late Shri Vishambhar Prasad Modi, R/o Swaraj Cycle
Stores, Mahanadi Complex, Niharika Kosabadi, Korba, Tehsil and
District Korba (C.G.)
18(A)(c) Rajkumar Modi S/o Late Shri Vishambhar Prasad Modi Aged
About 55 Years R/o Rajkamal Stores, Main Road Korba, Tehsil And
District Korba (C.G.)
18(A)(d)Rakesh Kumar Modi S/o Late Shri Vishambhar Prasad Modi Aged
About 51 Years R/o Rajkamal Stores, Main Road Korba, Tehsil And
District Korba (C.G.)
18(A) (e)Vinay Kumar Modi S/o Late Shri Vishambhar Prasad Modi Aged
About 47 Years R/o Rajkamal Stores, Main Road Korba, Tehsil And
District Korba (C.G.)
18(A) (f) Smt. Shweta Agrawal W/o Shri Madhukant Agrawal Aged About
43 Years D/o Late Shri Vishambhar Prasad Modi, R/o Rishi Colony,
Dayalbandh, Bilaspur, Tehsil And District Bilaspur (C.G.)
19. Bhagwan Das Modi S/o Shri Dwarika Das Aged About 72 Years
Occupation Business, R/o Vidhyarti Book Depot, Agrasen Chowk,
Main Road Korba, Tehsil And District Korba (C.G.) 495677
20. Sushil Kumar S/o Shri Radheshyam Aged About 59 Years R/o
Champa, Tehsil Champa, District Janjgir-Champa (C.G.)
--- Respondents
FA No. 206 of 2019
1. Smt. Geeta Devi Modi W/o Late Bishambhar Prasad Modi Aged About
55 Years R/o Rajkamal Stores, Main Road Korba, District Korba
Chhattisgarh
2. Smt. Vidya Agrawal W/o Shri Ashok Agrawal Aged About 38 Years D/o
Late Bishambhar Prasad Modi, R/o Swaraj Cycle Stores, Mahanadi
Comple Niharaka Kosabadi Korba, District Korba Chhattisgarh
3. Shri Rajkumar Modi S/o Late Bhishambhar Prasad Modi Aged About
36 Years R/o Rajkamal Stores, Main Road Korba, District Korba
Chhattisgarh
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4. Rakesh Kumar Modi S/o Late Bhishambhar Prasad Modi Aged About
34 Years R/o Rajkamal Stores, Main Road Korba, District Korba
Chhattisgarh
5. Vinay Kumar Modi S/o Late Bishambhar Prasad Modi Aged About 30
Years R/o Rajkamal Stores, Main Road Korba, District Korba
Chhattisgarh
6. Smt. Sweta Agrawal W/o Shri Madhukant Agrawal Aged About 28
Years D/o Late Bishambhar Prasad Modi R/o Rishi Colony,
Dayalbandh Bilaspur, District Bilaspur Chhattisgarh
— Appellants
versus
1. Prakash Chand Modi (Dead) Through Lrs
1 (a) Raj Kumar Modi, Adopted S/o Prakash Chand Modi Aged About 25
Years R/o Main Road Korba, Tehsil And District Korba, Chhattisgarh
(b) Smt. Abhilasha Modi D/o Prakash Chand Modi Aged About 26 Years
R/o Main Road Korba, Tehsil And District Korba, Chhattisgarh
(c) Smt. Ganga Devi Modi Wd./o Late Prakash Chand Modi Aged About 50
Years R/o Main Road Korba, Tehsil And Post District Korba, Chhattisgarh
2. Kishan Lal Modi (Dead) Through Lrs
2( a) Ashok Lal Modi S/o Late Kishan Lal Modi Aged About 42 Years Cast
Agrawal, Occupation Business, R/o Main Road Korba, Tahsil Post And
District Korba Chhattisgarh., District : Korba, Chhattisgarh.
(b) Sanjay Kumar Modi S/o Late Kishan Lal Modi Aged About 53 Years ,
Caste Agrawal, Occupation Business,R/o Main Road Korba, Tehsil
And Post District Korba, Chhattisgarh.
(c) Raja Modi S/o Late Kishan Lal Modi Aged About 24 Years Occupation
Business, R/o Main Road Korba, Tehsil And Post District Korba,
Chhattisgarh
(d) Smt. Rajkumari Devi D/o Late Kishan Lal Modi Aged About 47 Years
W/o Ganesh Prasad Agrawal R/o Sadar Bazar, Raigarh, District
Raigarh Chhattisgarh
(e) Smt. Vijay Laxmi Goyanka D/o Late Kishan Lal Modi Aged About 45
Years W/o Om Prakash Goyanka, Caste Agrawal, R/o Gadiyari,
Raipur, District Raipur, Chhattisgarh
(f) Smt. Meera Goyanka D/o Late Kishan Lal Modi Aged About 43 Years
W/o Anjani Kumar Goyanka, R/o Samta Colony, Raipur, District
Raipur, Chhattisgarh
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(g) Smt. Asha Bansal D/o Late Kishan Lal Modi Aged About 37 Years
W/o Sudhir Bansal R/o Durg, New Address Main Road Korba, Tehsil
And District Korba Chhattisgarh
(h) Smt. Shyama Agrawal D/o Late Kishan Lal Modi Aged About 35
Years W/o Pradeep Kumar Agrawal, R/o Tatanagar, Jharkhand , New
Address Main Road Korba, Teshil And District Korba Chhattisgarh
(i) Smt. Meena Agrawal D/o Late Kishan Lal Modi Aged About 30 Years
W/o Dilip Kumar Agrawal, R/o Raurkela, Orissa, New Address Main
Road Korba, Tehsil And District Korba, Chhattisgarh
(j) Smt. Manju Agrawal D/o Late Kishanlal Modi Aged About 29 Years
W/o Anil Kumar Agrawal, R/o Jawahar Nagar, Raipur, Chhattisgarh
(k) Smt. Sangeeta Agrawal D/o Late Kishan Lal Modi Aged About 26
Years R/o Raurkela (Orissa), Orissa, New Address Main Road Korba,
Tehsil And District Korba, Chhattisgarh., District : Korba, Chhattisgarh
3. Smt. Ginni Bai W/o Chandrabhan Bhopalpuriya D/o Smt. Laxmi, Devi
Modi, R/o Gajanan Medical Store, Naila, Tehsil And District Janjgir
Champa Chhattisgarh.(Abated).
4. Smt. Narmadi Bai (Dead) Through Lrs
4 (a) Pawan Agrawal S/o Rekhchand Agrawal Aged About 45 Years R/o
Biramitrapur, District Sundergarh Orrisa
(b) Vimla Agrawal D/o Rekhchand Agrawal Aged About 42 Years R/o
Biramitrapur, District Sundergarh Orissa
(c) Smt. Prema Agrawal D/o Rekhchand Agrawal Aged About 40 Years
W/o Gopal Agrawal R/o Biramitrapur, District Sundergarh, Orissa
(d) Sushila Agrawal D/o Rekhchand Agrawak Aged About 38 Years R/o
Biramitrapur, District Sundergarh, Orissa
(e) Smt. Lalita Agrawal D/o Rekhchand Agrawal Aged About 35 Years R/o
Biramitrapur, District Sundergarh, Orissa
(f) Smt. Santosh Agrawal D/o Rekhchand Agrawal Aged About 33 Years
R/o Biramitrapur, District Sundergarh
(g) Smt. Saroj Agrawal D/o Rekhchand Agrawal Aged About 30 Years R/o
Biramitrapur, District Sundergarh, Orissa
5. Smt. Madhu Agrawal Wd/o Ramavtar Agrawal R/o Jugal Betel Center,
Near Saptdev Temple Main Road Korba, Tahsil And district Korba
Chhattisgarh.
6. Puranchand (Dead) Through Lrs
6 (a) Jugal Agrawal S/o Late Puran Chand Agrawal R/o Jugal Betel
Center, Near Saptdev Temple, Main Road Korba Tahsil And District Korba
Chhattisgarh.
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(b) Shiv Agrawal S/o Late Puran Chand Agrawal R/o Jugal Betel Center,
Near Saptdev Temple, Main Road, Korba, Tashil And District Kroba
Chhattisgarh.
7. Smt. Omi Agrawal W/o Satyanarayan R/o Infront Of Majid Akaltara,
Tahsil Akaltara, District Janjgir Champa Chhattisgarh.
8. Smt. Santosh Agrawal W/o Mohan Agrawal R/o Agrasen Ward,
Baloda Road, Akaltara, Tahsil Akaltara, District Janjgir Champa
Chhattisgarh.
9. Radhe Shyam Modi (Dead) Through Lrs
9(a) Smt. Chanda Devi Wd/o Late Radhe Shyam Modi, Aged About 65
Years Champa, District Janjgir Champa, Chhattisgarh.
(b) Anil Kumar Modi S/o Late Radhe Shyam Modi Aged About 45 Years
R/o Champa, District Janjgir Champa Chhattisgarh., District : Janjgir-
Champa, Chhattisgarh.
(c) Pawan Kumar Modi S/o Late Radhe Shyuam Modi Aged About 45
Years R/o Champa, District Janjgir Champa Chhattisgarh., District :
Janjgir-Champa, Chhattisgarh.
(d) Vinod Kumar Modi S/o Late Radhe Shyam Modi Aged About 42 Years
R/o Champa, District Janjgir Champa Chhattisgarh., District : Janjgir-
Champa, Chhattisgarh.
(e) Smt. Sarita Agrawal D/o Late Radhe Shuam Modi Aged About 40 Years
W/o Suresh Agrawal, R/o Umra Road, Kharsia, District Raigarh,
Chhattisgarh., District : Raigarh, Chhattisgarh.
(f) Smt. Shoba Agrawal D/o Late Radhe Shyam Modi Aged About 36 Years
W/o Rajesh Agrawal, R/o Budwari Bazar, Sakti, District Janjgir
Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
10. Sushil Kumar S/o Radhe Shyam Aged About 44 Years R/o Champa,
Tahsil Janjgir, District Bilaspur, Present District Janjgir Champa,
Chhattisgarh
11. Bhagwan Das S/o Late Dwarika Das Aged About 67 Years At Present
Occupation Business, R/o Korba, Tahsil Khatgora, District Bilaspur,
Present District Korba Chhattisgarh., District : Korba, Chhattisgarh
— Respondents
For appellants in FA : Mr. Ravish Agrawal, Sr. Advocate with Mr.
No.3 of 2023 Sankalp Kochar, Advocate.
For respondents No.4 & :
7 in FA No.3 of 2023 Mr. Prafull N. Bharat, Sr. Advocate; Mr.
9
Manoj Paranjpe, Senior Advocate along with
Mr. Siddharth Shukla & Mr. Arpan Verma,
Advocates
For Respondent No.5 in : Mr. Pushp Kumar Gupta, Advocate
FA No.3 of 2023
For Respondent No.12 : Mr. Sourabh Mahant, Advocate
in FA No.3 of 2023
For Respondent No.13 : Mr. Rakesh Singh, Ms. Priyanshi Keshari
in FA No.3 of 2023 and Mr. Prakant Sethi, Advocates
For Respondent No.18a : Mr. Parag Kotecha, Advocate
to 18f in FA No.3 of 2023
For Respondent No.19 : Mr. Shailendra Bajpai, Advocate
in FA No.3 of 2023
For appellants in FA No. Ms. Priya Mishra, Advocate on behalf of Dr.
206 of 2019 N.K. Shukla, Senior Advocate(Hon’ble Shri Justice Arvind Kumar Verma)
CAV Judgment
1. These First Appeals are being considered pursuant to the order
dated 28.04.2025 passed by the Hon’ble Supreme Court in Special
Leave Petition (Civil) Nos. 7114-7115 of 2025 and connected
matters, whereby the common judgment and order dated
27.01.2025 passed by this Court in First Appeal No. 206 of 2019
and First Appeal No. 3 of 2023 were set aside and the appeals were
restored for fresh adjudication. The Hon’ble Supreme Court has set
aside the abatement qua late Madanlal and directed that his legal
representatives shall stand substituted as plaintiffs, leaving all
questions open for consideration. Accordingly, the present appeals
are being heard afresh to examine the correctness of the judgment
and decree dated 14.12.2018 passed by the learned Second
Additional District Judge, Korba in Civil Suit No. 7-A/2014.
2. Since both the appeals arise out of same judgment and decree
10
dated 14-12-2018 passed by 2nd Additional District Judge, Korba inCivil Suit No. 7-A/2014 and common facts are involved in both the
cases, they are heard analogously and are being disposed of by this
common judgment. For sake of convenience, the parties have been
referred to as shown in the original suit filed before the trial court
and issue involved in F.A. No. 3/2023 has been considered as lead
case.
3. FA No. 3 of 2023 has been preferred by plaintiff/appellant Madan
Lal Modi through its legal representatives assailing the judgment
and decree dated 14-12-2018 passed by 2nd Additional District
Judge, Korba in Civil Suit No 7A/14 whereby the suit filed by the co-
plaintiffs has been decreed and the suit with respect to the plaintiff
Madanlal has been abated, no partition decree in respect of him has
been passed by the learned trial Court as the plaintiff Madanlal Modi
expired during pendency of the suit and his legal representatives
have not been brought on record by other plaintiffs.
4. FA No 206 of 2019 has been preferred by the
appellants/defendants Smt. Geeta Devi Modi and others assailing
the judgment and decree dated 14-12-2018 passed by the
Additional District and Sessions Judge Korba in Civil Suit No. 7A of
2014 and prayed for setting aside the same.
5. Brief facts as reflected from the records of Civil Suit No 17-A/1976
are that the original civil suit was filed in the month of March, 1976
before the learned trial Court, but due to fire in the District Court,
Korba, after recording of some evidence the records were
destroyed, thereafter, the file was reconstructed by the learned
11
Additional District Judge vide its order passed in the month of
March, 1996 and concluded the trial and the suit is re-numbered as
Civil Suit No. 7A/2014
6. The dispute relates to the properties and business of a Joint Hindu
Family consisting of Dhanraj, Dwarkadas, Madanlal, Prakashchand
and Kishanlal, who were carrying on business jointly through a firm
in the name and style of Dhanraj-Dwarkadas and had acquired
several movable and immovable properties from the nucleus of the
said joint family business.
7. Owing to disputes amongst the members, a family arrangement was
arrived at on 21.12.1963 through the intervention of Panchas
whereby the business and the properties were divided and the
respective parties entered into possession of their shares. Though
the arbitration award embodying the said arrangement was
subsequently set aside on technical grounds relating to insufficiency
of stamp by order dated 21.01.1966, the arrangement was acted
upon and the parties continued to remain in possession of the
properties which had fallen to their respective shares.
8. Disputes again arose when certain members denied the partition
and asserted joint ownership over properties claimed by others,
which led to the institution of a civil suit in the year 1976 seeking
declaration of rights in terms of the partition and protection of
possession.
9. During the pendency of the suit, one of the original plaintiffs namely
Madanlal expired on 11.04.1992 and his legal representatives were
not brought on record within the prescribed period of limitation, as a
12
result of which the suit stood abated qua him. The proceedings in
the suit were further delayed owing to destruction of court records in
a fire incident in the year 1993, following which the record was
reconstructed and the trial proceeded thereafter.
10. Upon conclusion of trial, the learned Second Additional District
Judge, Korba by judgment and decree dated 14.12.2018 held that
the properties in question were joint family properties and that
partition had taken place in the year 1963. While granting
declaration in favour of certain plaintiffs, the learned Trial Court
declined to grant any relief to the branch of late Madanlal on
account of the suit having abated qua him.
11. Aggrieved by the said judgment and decree, the legal
representatives of late Madanlal preferred First Appeal No. 3 of
2023 challenging the denial of relief on account of abatement and
the contesting defendants preferred First Appeal No. 206 of 2019
questioning the findings relating to partition. Both the appeals were
heard analogously by this Court and came to be disposed of by a
common judgment dated 27.01.2025.
12. Being dissatisfied with the common judgment dated 27.01.2025
passed by this Court, the parties approached the Hon’ble Supreme
Court by filing Special Leave Petitions. The Hon’ble Supreme Court,
upon hearing the parties, by order dated 28.04.2025 set aside the
abatement qua late Madanlal and directed that his legal
representatives shall stand substituted as plaintiffs. The Hon’ble
Supreme Court further set aside the common judgment dated
27.01.2025 passed by this Court in First Appeal No. 206 of 2019
13
and First Appeal No. 3 of 2023 and restored the appeals to their
original position for fresh adjudication, leaving all questions open for
consideration.
13. Learned Senior Counsel appearing for the appellants in FA No. 3 of
2023 submits that the present appeal now survives for full
adjudication on merits in view of the order dated 28.04.2025 passed
by the Hon’ble Supreme Court in SLP (C) Nos. 7114-7115 of 2025.
It is submitted that the Hon’ble Supreme Court has categorically set
aside the abatement qua late Madan Lal Modi directed that his legal
representatives shall stand substituted set aside the earlier common
appellate orders restored the appeals to their original position and
most importantly declared that all contentions of the parties are left
open. It is therefore contended that the entire controversy relating to
title, possession, schedules and evidentiary foundation must now be
examined uninfluenced by the earlier findings. It is further submitted
that once abatement is set aside and legal representatives are
brought on record, the proceedings revive to the stage prior to
death. In this regard, reliance is placed upon the law laid down by
the Hon’ble Supreme Court in Rangubai Kom Shankar Jagtap vs
Sunderbai Bhratar Sakharam Jedhe (AIR 1965 SC 1794) wherein
it has been held that bringing legal representatives on record at one
stage of the suit enures for the entire proceedings including appeal.
Further reliance is placed upon the law laid down by the Hon’ble
Supreme Court in Devram Kini vs G.M. Keni (2003) 10 SCC 691
wherein it has been held that once legal representatives are brought
on record in appeal, the benefit extends to all further stages of the
14
suit. It is further submitted that the Hon’ble Supreme Court order
dated 28.04.2025 operates within this settled framework and
restores the appellants to full participatory rights.
14. It is further submitted that an appeal is continuation of the suit and
substitution of legal representatives operates for all subsequent
stages. Reliance is placed on Mithalal Dalsangar Singh vs
Annabai (2003) 10 SCC 691) holding that bringing legal
representatives on record at one stage ensures representation in
further stages. Also reliance is placed on Tota Ram vs Kundan
(AIR 1928 Lah 784) wherein it has been recognized that failure to
implead legal representatives does not vitiate proceedings if no
prejudice is caused and representation exists. It is submitted that
once abatement is set aside, parties are restored to their original
position at the stage of death. Reliance is placed on Birbal vs
Harlal (AIR 1953 Punjab 252) wherein it was held that upon setting
aside abatement, proceedings continue from the stage at which
death occurred and this principle now stands reinforced by the
Supreme Court order dated 28.04.2025.
15. It is further submitted that in view of the above settled law and the
express declaration by the Hon’ble Supreme Court that all
contentions remain open, the appellants are entitled to full
adjudication on reconstruction of record, authenticity of schedules,
effect of amendment dated 04.01.2018 and the evidentiary
foundation of the decree dated 14.12.2018. It is submitted that
reconstruction took place without lawful verification of the appellants
who had already been treated as abated. It is further submitted that
15
substantial changes were introduced in schedules decades after
institution and long after reconstruction and such late alteration
affecting proprietary rights cannot be treated as clerical. It is
therefore submitted that the decree dated 14.12.2018 insofar as it
proceeds on altered schedules deserves to be set aside and the
matter be adjudicated on authentic pleadings and evidence.
schedules, possession and title.
16. Learned counsel for Respondents No. 3 to 13 in FA No.3 of 2023
would submit that the present appeal, as revived pursuant to the
order of the Hon’ble Supreme Court dated 28.04.2025, survives only
for limited consideration and does not reopen settled findings of fact
recorded by the learned Trial Court in its judgment and decree dated
14.12.2018. It is further submitted that the learned Trial Court, upon
appreciation of the reconstructed record following destruction in the
fire of 1996, categorically recorded a finding that partition dated
21.12.1963 stood proved and that the original plaintiffs namely
Madanlal, Prakash Chandra and Kishanlal were in possession of
their respective shares as owners in terms of the said partition. It is
further submitted that however, as regards the share of Late
Madanlal Modi, the proceedings stood abated and consequently no
decree was passed in respect of the property described in Schedule
D attached to his plaint. The decree was accordingly passed in
favour of the heirs of Late Prakash Chandra and Late Kishanlal
Modi declaring their ownership and possession in terms of the
partition dated 21.12.1963 and restraining interference by the
defendants. It is therefore submitted that the controversy now
16
stands confined to the entitlement of the appellants to relief in
respect of the share of Late Madanlal Modi within the parameters of
the original pleadings. It is respectfully submitted that the appellants
cannot seek relief beyond the pleadings or prayer in the First
Appeal. The law in this regard is well settled in Trojan & Co. v.
Nagappa Chettiar, AIR 1953 SC 235, Krishna Priya Ganguly v.
University of Lucknow, (1984) 1 SCC 307, Om Prakash v. Ram
Kumar, (1991) 1 SCC 441 which hold that no relief can be granted
beyond pleadings and prayer. Further, the legal representatives of a
deceased party step into the shoes of the original litigant and cannot
set up a new or inconsistent case. The settled position of law in this
regard flows from the principle embodied under Section 2(11) CPC
and recognised in Kizhakialathil Puthan Veettil Thavazhi
Karnavan v. Manikat Variath, AIR 1935 Madras 52. It is further
submitted that the partition dated 21.12.1963 was duly acted upon
and followed by mutation in land records as early as 24.01.1964.
17. It is further submitted that the revenue orders including that dated
14.11.1984 passed in Revenue Case No. 28/A/6/69-70
acknowledged transfers and possession in accordance with the
partition and registered sale deeds. Registered sale deeds of 1964
in favour of Madanlal Modi in respect of Khasra Nos. 732/17 and
732/18 were duly proved and possession pursuant thereto was
established. Similarly, lands bearing Khasra Nos. 493/13 and 497/49
were sold by Madanlal Modi to his sons under registered sale deeds
and possession thereof has remained with them ever since. It is
further submitted that no document has been produced by the
17
defendants to show dispossession from these lands. It is further
submitted that subsequent corrections made by order dated
06.01.2018 were merely clerical in nature to bring the schedule in
conformity with the partition deed and land records of 1964-65 and
did not result in any substitution of property. It is further submitted
that comparative analysis of Schedule D from 1963 to 2025
demonstrates continuity and absence of change.
18. It is further submitted that the appellants, being advocates and
having actively participated in the proceedings for decades on
behalf of co-plaintiffs, had themselves contributed to reconstruction
of the record after the fire incident of 1996 and filed numerous
documents in support of the case. The reconstructed plaint of 1976
was never challenged at the relevant time and stands accepted. Any
challenge at this stage is barred by waiver and estoppel. It is further
submitted that remand is unwarranted in view of the evidence
already on record and the mandate of Order 41 Rule 24 CPC. It is
further submitted that the Hon’ble Supreme Court has consistently
held that the appellate court should finally determine the matter
where evidence is sufficient and remand should not be made
routinely. In this regard reliance is placed upon Shivakumar v.
Sharanabasappa, (2021) 11 SCC 277, Municipal Corporation,
Hyderabad v. Sunder Singh, (2008) 8 SCC 485. It is further
submitted that further, while exercising jurisdiction under Section 96
CPC, the appellate court must not substitute its own view lightly and
must give due weight to findings of the trial court, as held in V.
Prabhakara v. Basavaraj K., (2022) 1 SCC 115. In view of the
18
above, it is respectfully submitted that the appeal deserves to be
dismissed and no interference with the decree in favour of the heirs
of Late Kishanlal Modi is warranted and the appellants be restrained
from interfering with the lawful possession of the respondents and
appropriate costs be imposed in view of the prolonged and
unnecessary litigation.
19. Learned counsel for Respondent No.19 in FA No.3 of 2023 would
submit that the allegations raised by the Appellants that interpolation
or manipulation was carried out in the record is wholly incorrect. It is
further submitted that the factual position borne out from the record
is that the legal representatives of Late Madanlal Modi themselves
continuously participated in the proceedings from 1976 till the
passing of judgment on 14.12.2018. After the fire incident of 1996,
reconstruction of the record was carried out with participation of the
parties including the legal representatives of Madanlal Modi who
produced documents and appeared in the proceedings. It is further
submitted that after the partition dated 21.12.1963, names were
mutated in revenue records on 24.01.1964 in accordance with
partition and such entries continue to reflect the respective shares.
It is further submitted that subsequent revenue entries including
Adhikar Abhilekh dated 27.07.1965 further confirm title of Madanlal
over his share. Further, Madanlal himself executed registered
transactions including sale of land bearing Khasra Nos. 497/49 and
493/13, upon which mutation entries were made in favour of his
successors. These entries are reflected in Exhibits P-29 to P-32 and
remain unchallenged.
19
20. It is further submitted that there has been no alteration in Schedule
D at any stage. The properties which were allotted under partition
continued in the same status in 1964, 1965, 1976 and even in 2018.
It is further submitted that the mutation in favour of the legal
representatives of Madanlal has already been carried out in revenue
records. Thus the allegation that properties allotted to one party
were shifted to another is factually incorrect. It is further submitted
that the trial court, upon appreciation of evidence, has determined
the share of Madanlal in paragraph 64 of the judgment. This finding
has attained finality on facts and was not disturbed on merits.
21. It is further submitted that from the inception of the proceedings, the
legal representatives of Madanlal were actively conducting the
litigation and were appearing as advocates on behalf of all plaintiffs.
It is further submitted that the record including applications and
deposition of witnesses confirms this continuous participation.
Applications under Order 18 Rule 4 CPC were also filed by LRs of
Madanlal.
22. It is further submitted that the belated application filed in appeal
under Order 41 Rules 23, 23A and 24 CPC was only intended to
reopen settled issues. Out of 28 documents relied upon therein
most were already part of record and others were post-decree
documents and some were irrelevant. It is therefore submitted that
the legal representatives substituted in place of Madanlal cannot set
up a new plea beyond the pleadings of the deceased.
23. It is further submitted that the legal representatives step into the
shoes of the deceased and cannot introduce a new case or change
20
the foundation of the original pleadings. Therefore, at the appellate
stage, no new claim can be asserted which was never pleaded by
Madanlal. It is further submitted that the share of Madanlal stands
determined by the trial court his legal representatives were
continuously participating in proceedings, they never challenged
proceedings for decades and after 33 years cannot reopen settled
issues. Therefore, equity demands that the legal representatives of
Madanlal receive decree in respect of his determined share in the
same manner as other plaintiffs. It is lastly submitted that the
appeal may be decided by granting decree in favour of the legal
representatives of Late Madanlal Modi in accordance with the trial
court determination of his share.
24. Learned counsel for the appellants in FA No.206 of 2019 would
submit that the dispute emanates from the arbitral award dated
21.12.1963 whereby partition amongst the five brothers of the family
firm Bhagwati Dwarkadas was effected. The said award was
challenged under Section 33 of the Arbitration Act, 1940 before the
District Judge, Bilaspur wherein on 21.11.1966, the learned District
Judge held that the award though existing in fact did not exist in law
and was therefore invalid. It is further submitted that the said order
was carried in Civil Revision before the High Court of Madhya
Pradesh. The High Court analysed the nature of the award and held
that even if the award is invalid in law, where parties have by mutual
consent acted upon it and entered into separate possession, such
possession may continue and the rights arising from such conduct
would require adjudication in appropriate proceedings. It is further
21
submitted that where parties have acted upon a partition
arrangement and have remained in separate possession over long
years, such conduct cannot be ignored.
25. He would next contend that the arbitration award with regard to
partition was never acted upon, therefore, the appellant is entitled to
seek determination of rights on the basis of subsequent conduct,
possession, mutual arrangement flowing from the partition. It is
lastly submitted that the present First Appeal deserves to be allowed
and the impugned judgment be reconsidered in light of the legal
position that rights arising from subsequent conduct cannot be
negated merely on account of invalidity of the arbitral award.
26. Learned counsel for Respondent No. 2 (e) in FA No. 206 of 2019
would submit that the appellants are the legal heirs of Defendant
No. 4 Bishambhar Lal Modi, who was the son of Defendant No. 3
Dwarka Das Modi and the present Respondents were the Plaintiffs
before the learned Trial Court. It is further submitted that the legal
heirs of Dhanraj namely Defendant Nos. 1, 2 and 6 have already
accepted the Judgment and Decree dated 14.12.2018 and have
acted upon the same by seeking mutation of their respective shares
before the competent revenue authority. Defendant No. 5 had
initially preferred First Appeal No. 119 of 2019 but subsequently
withdrew the same and also acted upon the decree by seeking
mutation in the revenue records. Thus, presently the impugned
Judgment is being challenged only by one branch of late Dwarka
Das Modi through the legal representatives of Bishambhar Modi,
whereas the remaining branches of the family including those of
22
Madanlal, Kishanlal, Dhanraj and Prakash Chand Modi have
accepted and acted upon the said Judgment.
27. It is further submitted that Civil Suit No. 15A of 1976 was not a suit
for fresh partition but was a suit for declaration and injunction based
upon the mutually settled shares between the parties pursuant to
the partition effected earlier. The background of the dispute
demonstrates that the partition dated 21.12.1963 was challenged by
Dwarka Das Modi under Section 33 of the Arbitration Act, 1940
before the District Court, Bilaspur. The learned District Court vide
order dated 21.01.1966 held that the award though existing in fact
does not exist in law for want of registration and stamp but granted
liberty to the parties to seek declaration if they had acted upon the
same.
28. It is further submitted that a Civil Revision No. 216 of 1966 was
preferred before the High Court of Madhya Pradesh at Jabalpur
which, vide judgment dated 24.11.1967, categorically observed that
even if the award was invalid, if the parties had acted upon it and
were in separate possession by mutual consent, such possession
and subsequent conduct could be recognized and determined in an
appropriate suit. It is submitted that during the pendency of the Civil
Suit, the issue of maintainability was decided by the Trial Court vide
order dated 15.07.1980 wherein the suit was held to be tenable. The
said finding attained finality as it was never challenged. It is further
submitted that the law is now well settled that a family arrangement
or partition acted upon by parties does not require compulsory
registration if it merely records pre existing rights. Reliance is placed
23
upon the law laid down by the Supreme Court in Kashinathsa
Yamosa Kabadi vs Narsingsa Bhaskarsa Kabadi AIR 1961 SC
1077, it has been held that where parties have voluntarily accepted
and acted upon an award or settlement, subsequent conduct
becomes binding and a plea based upon such conduct is
maintainable. Reliance has been placed upon the law laid down by
the Hon’ble Supreme Court in Sardar Singh vs Krishna Devi
(1994) 4 SCC 18 and Kale vs Dy. Director of Consolidation
(1976) 3 SCC 119 wherein it has been held that such arrangements
are to be upheld when acted upon for maintaining peace and
preserving family property.
29. It is further submitted that the Appellants themselves and their
predecessor had admitted the execution and act upon the partition
in earlier proceedings. Such admissions constitute the best
evidence in view of the law laid down in Nagindas Ramdas vs
Dalpatram Ichharam AIR 1974 SC 471 and Thimmappa Rai vs
Ramanna Rai (2007) 14 SCC 63. Further, admissions made in
pleadings in prior proceedings are admissible in subsequent
proceedings as held in Basant Singh vs Janki Singh AIR 1967 SC
341.
30. It is further submitted that once Defendant No. 4 had admitted the
partition and acted upon it, the present Appellants stepping into his
shoes cannot be permitted to take a contrary stand. The learned
Trial Court, after appreciating oral and documentary evidence,
returned findings of fact holding that the parties had acted upon the
partition and were in separate possession of their respective shares.
24
These findings are based on preponderance of probability and
admissions on record. It is settled law that admissions are
substantive evidence and can be relied upon for determination of
rights. It is lastly submitted that the present appeal does not
demonstrate any perversity or material illegality in the findings
recorded by the learned Trial Court warranting interference under
Section 96 CPC, therefore, the Judgment and Decree dated
14.12.2018 does not call for interference and the present First
Appeal deserves to be dismissed.
31. I have heard learned counsel for the parties and perused the
record”, the issues that arise for consideration in the present First
Appeal, upon analysis of the pleadings, evidence, earlier
proceedings, and the legal position emerging from the orders of
various courts,the only necessary issues, in light of the law laid
down by the Hon’ble Supreme Court and the binding effect of earlier
proceedings, which arise for determination in the present First
Appeal are as follows:
1. Whether retrial is necessary and the case is liable to be
remanded for afresh adjudication under Order 41 Rule 23 or
Rule 23A CPC, 1908?
2. Whether, despite the award dated 21.12.1963 being held
invalid for want of registration, the subsequent conduct of
the parties and the family arrangement acted upon by them
could form the basis of declaration of rights?
32. Brief facts as reflected from the records of Civil Suit No 17-A/1976
are that the original civil suit was filed in the month of March, 1976
25
before the learned trial Court, by the plaintiff for declaration and
injunction mainly contending that;
a) The plaintiffs and the defendants are members of joint
Hindu family and governed by Hindu law. The plaintiff has
also described its genealogy of the family in the plaint. They
are running a registered firm in the name and style of
Dhanraj-Dwarikadas which was funded by all the parties.
The property purchased through the nucleus of the firm was
purchased in the name of Dhanraj-Dwarikdas or sometimes
in the name of any partner or in the name legal heirs in
which all the five partners of the firm namely Dhanraj,
Dwarkadas, Madanlal, Prakashchand and Kishanlal were
equally share of 1/5th and this joint family continued upto
21-12-1963. The details of the joint property have been
mentioned in the schedule A, B, & C of the plaint.
b) Due to dispute in the family, Dhanraj, Dwarkadas,
Madanlal, Prakashchand and Kishanlal have decided to
dissolve the firm and decided to go for partition.
Accordingly, one Ramkumar Maskara and Dhanshyam
Agrawl were appointed as Punch who have given their
award on 21-12-1963. Accordingly the properties were
dissolved. Details of the property which have been given to
the partners have been described in Schedule “D” of the
plaint. As per partition, the property which was in
possession of the person has been given to them and for
settling the sales tax and income tax some property was
26
kept separately which has been mentioned in Schedule “A”
of the plaint. The business which was dissolved has been
described in Scheduled “C” of the plaint.
c) All the five shareholders have accepted the agreement
dated 21-12-1963 and accordingly, list of partition was also
prepared. Accordingly, all the five shareholders were in
possession of the propert, according to their convenience
they have made alteration to it or houses have been
constructed which have been described in Schedule “B”
and it was given on rent by themselves also. They have
also recorded different names in the Patwari record, have
also sold some of the property which was fallen in their
share and they started new business.
d) In the year 1965 Dwarkadas moved an application under
Section 33 of Arbitration Act, 1940 for cancellation of
arbitration award which was registered as case No. 3 of
1965 in which Madanlal, Kisanlal and Prakash Chand
stated that the partition has taken place and they are in
possession of the property and same reply was given by
Dhanraj but Dwarkadas has not accepted the same and has
denied the separate possession. Learned District Judge
vide its judgment dated 21-1-1966 canceled the arbitration
award on the count that it has not been properly stamped,
but has approved the agreement. Being aggrieved with that
order, a revision was preferred by Dhanraj, Madanlal,
Kishanlal S/o Prakashchand which was registered as Civil
27
Revision No. 216 of 1966 and the same has been
dismissed on 24-11-1967.
e) After order passed by the High Court, the shareholders
are in possession of the respective shares of the property
and were doing their separate business and no one has
moved any application for cancellation of partition as it was
accepted to all. It is further contended that Bajrang Talkies
Champa was fallen in the share of Dhanraj and he has paid
the tax and from the income Dhanraj has constructed three
godowns. It has also been contended that apart from three
godowns one house near to the railway station was also
fallen in the share of Dhanraj which he sold. It has also
been contended that 1/5th share of family house has also
been given to Djhanraj and at Korba also Dhanraj was
given three houses in his share from where he started
taking rent.
f) It is also case of the plaintiff that the defendant No. 3
Dwarkadas has got 12 houses at Korba and 1/4th share in
Maruti Rice Mill at Champa and started quarreling with the
plaintiff along with defendants and also started selling the
property causing loss to them which necessitated them to
file a civil suit, therefore, they prayed that the plaintiffs are
entitled to get share of the property mentioned in the
Schedule “D” of the plaint and the defendants be restrained
from interfering in the peaceful possession of the property. It
is also the case of the plaintiff that Dwarikadas has taken
28
the recourse of revenue proceeding which is pending from
the date of filing of the suit.
33. The defendants No. 1, 2 and 6 have filed their written statement
denying averments made in the plaint mainly contending that;
a) Dhanraj was not the partner of firm Dwarkadas and he is
doing his business separately. It has been contended that
the property described in Schedule “A, B and C” were not
related to joint family, but only some property relates to
Dhanraj. It has been admitted by them that the award was
passed by the Arbitrator on 21-12-1963, but this award was
not accepted by Dwarkadas, therefore, he has not
executed the same. It is also denied that all the
shareholders are in possession of the property as per the
award and they have made any change to it. It was further
contended that the firm has self acquired properties which
were not divided and therefore, a dispute is arisen. It was
also denied that Dwarkadas has not moved any application
for setting aside the arbitration award and same was set
aside by the Court. Against that order he has preferred
revision which was dismissed on 24.11.1967. It has been
specifically contended that no observation regarding
possession of the property by respective shareholders was
made either by the trial court or by the High Court. It has
been further contended that the plaintiffs No. 1 and 2 have
sold the materials of firm Dhanraj Dwarkadas and have kept
Rs.5,00,000/- with them. Thereafter, on 01-07-1975 they
29
have constituted new firm namely Dhanraj Kisanlal and
continued with the same business causing loss to the
defendant Dwarkadas. It has been further contended that
firm Dhanraj Dwarkadas has to pay lot of tax. It is also
contended that the plaintiff with intent to harass Dwarkadas
informed Tahsildar that tax liability on the firm can be
recovered after selling of the property namely godowns and
Maruti Rice Mill at Champa. It has been further contended
that the plaintiffs have sold some property without obtaining
consent from other shareholders. It has also been
contended that the award is not acceptable to all the
parties. They are in possession of the property which they
were in possession prior to the passing of award by the
Arbitrator.
b) It has also been contended that Dhanraj and
Dwarkadas started harassing other family members
showing their right over the entire family property. As such,
no partition has taken place which has caused dispute
between the family members. It has also been contended
that the plaintiff should have proceeded in accordance with
the arbitration law to execute the arbitration award, as such
also the civil suit in the form of declaration and partition is
not tenable and would pray for dismissal of the suit.
34. The defendants No. 3 and 4 have filed separate written statement
mainly denying the existence of arbitration award and also stated
that neither the said award has been enforced nor the court
30
recognized the same, as such it has no value in eyes of law. It has
also been contended that the plaintiffs despite the illegal order have
made an attempt to enforce the same by adopting illegal modes
which have been objected by them. It has also been contended that
since the arbitration award has been set aside by the court,
therefore, the lis has lost its significance. It has been further
contended that there is no partition in the eye of law, therefore,
question of cancellation does not arise and would pray for dismissal
of the suit. It has also been stated that the firm is still in existence
and the defendant Bagwandas was not taking rent of the property
as he was minor, therefore, Dwarkadas was taking the rent of the
property being guardian. It has been contended that the firm does
not belong to joint Hindu family as it is a registered firm, as such firm
is necessary party to the case, as such the defendants No. 3 and 4
prayed for dismissal of the suit.
35. Defendant No. 5 has filed separate written statement denying the
averments made in the plaint specifically stated that the partition
has never been enforced and since the award has already been set
aside by the High Court, therefore, the schedule which is part of the
award has also lost its significance and prayed for dismissal of the
suit. It is further contended that Dhanraj and Dwarkadas have
transferred the land bearing Khasra No 479/49, 479/29 through
registered gift deed in 1970. It is further contended that late Dhanraj
and Dwarkadas s/o. Janki Das have given the land to Bhagwandas
through registered gift deed land bearing Khasra No 493/13,
194/103 and Khasra No 497/10 have also been transferred to
31
Bhawandas. It is further contended that the defendant Bhagwandas
s/o. Dwarkadas in the year 1967-69 was owner of the land and
without any registration the land cannot be transferred. It has been
further contended that the land bearing Khasra No. 732/10 is self
acquired property which has been sold to Abdul Rahman and after
that he is in possession of the said property, as such the said
purchaser is necessary party which has not been arrayed as party in
this case and would pray for dismissal of the suit.
36. Thereafter on the pleadings of the parties, the learned trial Court
has framed the following issues No. 01 to 06 on 15.12.2003 and
additional issues No. 7 and 8 on 15.02.2007.
“1” क्या वाद पत्र के साथ संलग्न शेड्यूल अ,ब एवं स में
बताई गई सम्पत्ति धनराज, द्वारिकादास, मदनलाल,
प्रकाशचंद्र एवं किसन लाल की शामिल सरीक सम्पत्ति
थी?
“2” अ- क्या उक्त पक्षकारों को पंच फैसले में वाद पत्र के
साथ संलग्न शेड्यूल ड के अनुसार सम्पत्ति बंटवारे में
मिला था?
ब- क्या पंच फैसले में बताई गई बंटवारे की फेहरिस्त को
पक्षकारगण द्वारा मान्य किया गया था तथा वे अपने-अपने
हिस्से में काबिज हुये थे?
“3” क्या वादीगण वाद पत्र के साथ संलग्न शेड्यूल “ड” में
वर्णित सम्पत्ति के स्वामी एवं आधिपत्यधारी हैं? यदि हां
तो प्रभाव ।
“4” क्या वाद पत्र के साथ संलग्न शेड्यूल “क” में वर्णित
सम्पत्ति शामिल शरीक सम्पत्ति है तथा पंच फैसला में
32
उसे टैक्स संबंधी दायित्वों की अदायगी हेतु रखा गयाथा?
“5” क्या वादीगण याचित स्थायी निषेधाज्ञा का अनुतोष
प्राप्त करने के अधिकारी हैं?
“6” सहायता एवं व्यय?
“7” क्या वादग्रस्त जमीन में से सर्वे नंबर 497/49 रकबा
0.50 एकड़ सर्वे नंबर 497/29 रकबा 0.08 एकड़ दि०
18.4.70 के अभिकथित बख्शीशनामा द्वारा धनराज एवं
द्वारिकादास द्वारा प्रतिवादी क्र० 5 भगवानदास को अन्य
वारिसानों के साथ दिया गया था?
“8” क्या वादग्रस्त संपत्ति में से सर्वेनंबर 493/13 का
टु कड़ा 0.50 एकड़ तथा सर्वेनंबर 493/106 रकबा
0.25 एकड़ को दिनांक 03.03.1970 की अभिकथित
बख्शीशनामा के द्वारा धनराज एवं द्वारिका दास ने
प्रतिवादी क्र० 5 भगवानदास को राजकुमार के साथ एवं
सर्वेनंबर 497/10 रकबा 0.16 एकड़ की जमीन को
प्रतिवादी क्र० 5 भगवानदास एवं सुशील कुमार को दिया
गया था?
37. To substantiate their submissions, the plaintiffs have examined the
witnesses namely Kisanlal Modi (PW/1), Pramod Yadav (PW/2),
Ghanshyam Mishraaa (PW/3), Lalit Yadav (PW/4), Bhupendra
Mishra (PW/5), Ramnarayan Tamboli (PW/6), Bhupendra Upadhyay
(PW/7), Santosh Kumar Panikar (PW/8), B.P. Modi(PW/9), Ashok
Kumar Modi (PW/10) and C.S. Sidar (PW/11) and exhibited
documents from Ex. P-1 to Ex. P-217. To substantiate their stand,
33
respondents/defendants have exhibited the documents from Ex. D-1
to Ex. D-67) and two defence witnesses were examined.
38. The suit having been instituted in the year 1976 and registered as
Civil Suit No. 15-A/1976. It is noted that on 04.03.1993, an incident
of fire occurred in the District Court, Korba, wherein the court
records were burnt after some unknown person broke open the door
and set the files on fire. Consequently, vide order dated 13.03.1996,
directions were issued for reconstruction of the record, and
thereafter the case proceeded on the basis of the reconstructed file.
Upon appreciation of the evidence and material available on record,
the learned trial Court passed the impugned judgment and decree
dated 14.12.2018, whereby the suit was decreed holding that
plaintiff No. 2 shall be the owner of the property in terms of the
partition dated 21.12.1963 with respect to the property described in
Schedule ‘D’ of the plaint, except the property bearing Khasra No.
732/1, which remained subject to the judgment and decree passed
by the learned Civil Judge Class I and Class IV. It was further
directed that plaintiff Kisanlal shall be declared as the title holder of
the property described in Schedule ‘D’ in accordance with the said
partition dated 21.12.1963. Additionally, it was held that Prakash
Chand shall be declared as the title holder of the property, except
Khasra No. 732/1, and the property left in favour of Kisanlal as
described in Schedule ‘D’, in which the defendants were restrained
from causing any interference. The learned trial Court also declared
that the property described in Schedule ‘A’ shall remain reserved for
reimbursement of the tax liability of the firm Dhanraj Dwarkadas,
34
and the property mentioned in Schedule ‘D’ annexed with the plaint
shall form part of the share of Prakash Chand and Kisanlal, while
the property mentioned in Schedule ‘A’ shall also form part of the
decree. However, the learned trial Court did not grant any decree of
partition.
39. The judgment & order rendered by this Court on 27/01/2025 was
thereafter assailed before the Hon’ble Supreme Court by way of
Special Leave Petition (Civil) Nos. 7114-7115 of 2025. The relevant
operative portion of the order passed by the Hon’ble Supreme Court
is reproduced hereinbelow:-
“1. Having heard learned senior counsel for the parties,
we are of the considered view that interest of justice
would be best met, more so when the order of
abatement ought to have been set aside and legal heirs
of the deceased petitioner brought on record, with the
disposal of the present petitions in the following
terms:-
(a) The order of the abatement qua deceased-
Madan Lal Modi, who died on 11.04.1992 is set
aside. His legal representatives, respondents
Nos.1 to 10 in F.A. No. 03/2023 would stand
substituted as plaintiffs.
(b) Having regard to the order dated 09.08.2024,
whereby the Court had fixed the next date of
hearing as 06.09.2024, when the matter was
adjourned, we set aside the common impugned
35
orders dated 05.12.2024 and 27.01.2025 passed in
First Appeal No.206/2019 and F.A. No.03/2023 by
the High Court of Chhattisgarh. As such the
appeals are restored to their original number and
position, with the legal heirs being brought on
record.
2. We direct all the parties to appear before the High
Court on 27th June, 2025. We request the High Court to
take up the appeals and decide on the same
expeditiously and, preferably, within a period of three
months. Needless to add, the parties shall not take any
unnecessary adjournment.
3. All the contentions of the respective parties are left
open, should they desire, to be raised before the
appropriate forum, to be decided in accordance with
law.
4. Pending applications, if any, shall stand disposed
of,”
Finding and Conclusion on both the issues:-
40. It is not in dispute that during the pendency of proceedings, Late
Madan Lal Modi expired and the matter, to the extent of his interest,
stood abated by the finding given by the trial Court.
41. The abatement thus resulted in an incomplete and ineffective
adjudication of the rights arising out of the partition in question. The
Hon’ble Supreme Court, in SLP (C) Nos. 7114-7115 of 2025, while
setting aside the order of abatement and restoring the appeals, has
36
categorically directed that the matter be decided afresh afterbringing the legal representatives on record.
42. As per Ex. P/1 partition deed executed on 21/12/1963 and as per
Ex. P/2, P/3, P/4, P/5 & P/7 show that these are the copy of share of
Kishan Lal Modi, Dhanraj, Dwarika, Madanlal and Prakash Chand.
As per partition deed dated 21/12/1963 and as per Ex. P/8 Dhanraj,
Dwarika, Prakash had accepted the partition and consent was given
for forming separate firm on 30/06/1964. The partition list is
mentioned in Ex. P/138. It is also pertinent to mention here that as
per partition deed dated 21/12/1963 all the parties appeared before
the Court of Land Revenue Records, Korba, based on the partition,
names of the respective individuals were duly mutated in the land
records as per Ex. P-34 & P/38.
43. Therefore, it is crystal clear that the parties have acted upon the
partition including Late Madan Lal Modi and Madan Lal Modi share
was mentioned in Ex. P/36 dated 24/01/1964. Thereafter, Adhikhar
Abhilekha was updated in the name of the parties which shows that
Ex. P-175 to 179. The share of Madan Lal was also in the
document Ex. P/175 dated 27/07/1965 at that time Madan Lal Modi
was alive. It is also pertinent to mention here that Late Madan Lal
Modi had sold two properties i.e. Khasra No.493/13, area 3 acres
and Khasra No.497/49, area 0.50 acres from his share through
separate registered sale deeds dated 12/05/1968 vide Ex. P/170.
Therefore, the material on record, including earlier pleadings and
conduct, demonstrates that the parties had acted upon the partition
and were in possession of their respective shares. However, in
37
absence of adjudication of the share of Late Madan Lal Modi owing
to abatement, the foundational determination of rights remained
incomplete. The restoration is not merely procedural but goes to the
root of adjudication, as the rights of a necessary party could not
earlier be determined as to what portion of the land has been given
in partition to Madan Lal has still not been determined by the trial
Court. However, Madan Lal Modi and other witnesses have
admitted the fact that the partition was acted upon and shares were
also allocated. The main ground raised by the legal heirs of Madan
Lal Modi is that the Schedule has been changed after the death of
Madan Lal Modi. On perusal of record it is found that the counsel
for the other plaintiffs have filed the Schedule before the trial Court
and application under Order 6 Rule 17 CPC for correction of Khasra
number and area has also been filed by the counsel for the plaintiffs
on 04/12/2017 but before filing of the said application Madan Lal
has died on 11/04/1992 and the application was allowed on
04/01/2018 and by that time the the suit was abated qua the legal
heirs of Madan Lal Modi, therefore, the effective determination could
not be done. The effect of such non-adjudication is substantive and
not merely procedural.
44. The abatement having been set aside by the Hon’ble Supreme
Court, therefore, this Court is of the considered view that the rights
flowing from the share of the deceased stakeholder had remained
un-adjudicated on account of abatement and, therefore, a complete
and effective determination of the subject matter of the suit could not
be undertaken earlier.
38
45. Once the Hon’ble Supreme Court has restored the proceedings to
enable full and effective determination, this Court cannot proceed to
conclusively determine the inter se rights of the parties without first
ensuring adjudication of the share of the deceased stakeholder
through his legal representatives.
46. The Hon’ble Supreme Court in the matter of Rangubai Kom
Sankar Jagtap Vs. Sunderbai Bhratar Sakharam Jedhe and
Others {AIR 1965 SC 1794} (V 52 C 306) has held thus in para 9
which is reproduced hereinbelow:-
“9) Let us now consider the question on principle. A
combined reading of Order XXII, R. 3, 4 and 11, of the Code
of Civil Procedure shows that the doctrine of abatement
applies equally to a suit as well as to an appeal. In the
application of the said R. 3 and 4 to an appeal, instead of
“plaintiff” and “defendant”, “appellant” and “respondent”
have to be read in those rules. Prima facie, therefore, if a
respondent dies and his legal representatives are not
brought on record within the prescribed time, the appeal
abates as against the respondent under R. 4, read with R.
11, of O. XXII of the Code of Civil Procedure. But there is
another principle recognized by the Judicial Committee in
the aforesaid decision which softens the rigour of this rule.
The said principle is that if the legal representatives are
brought on record within the prescribed time at one stage of
the suit, it will enure for the benefit of all the subsequent
stages of the suit. The application of this principle to
39
different situations will help to answer the problem pre-
sented in the present case. (1) A filed a suit against B for
the recovery of possession and mesne profits. After the
issues were framed, B died. At the stage of an interlocutory
application for production of documents, the legal re-
presentatives of B were brought on record within the time
prescribed. The order bringing them enure for the benefit of
the entire suit. (2) The suit was decreed and an appeal was
filed in the High Court and was pending therein. The
defendant died and his legal representatives were brought
on record. The suit was subsequently remand-ed to the trial
Court. The order bringing the legal representatives on
record in the appeal would enure for the further stages of
the suit. (3) An appeal was filed against an interlocutory
order made in a suit. Pending the appeal the defendant
died and his legal representatives were brought on record.
The appeal was dismissed. The appeal being a continuation
or a stage of the suit, the order bringing the legal
representatives on record would enure for the subsequent
stages of the suit. This would be so whether in the appeal
the trial Court’s order was confirm-ed, modified or reversed.
In the above 3 illustrations one fact is common, namely, the
order bringing on record the legal representatives was
made at one stage of the suit, be it in the suit or in an
appeal against the interlocutory order or final order made in
the suit, for an appeal is only a continuation of the suit.
40
Whether the appellate order confirms that of the first Court,
modifies or reverses it, it replaces or substitutes the order
appealed against. It takes its place in the suit and becomes
a part of it. It is as it were the suit was brought to the
appellate Court at one stage and the orders made therein
were made in the suit itself. Therefore, that order enures for
the subsequent stages of the suit.”
47. Further the Hon’ble Supreme Court in the matter of Mithailal
Dalsangar Singh and Others Vs. Annabai Devram Kini and
Others {(2003) 10 SCC 691} has held thus in paras 8 & 10 which
are reproduced hereinbelow:-
“8. Inasmuch as the abatement results in denial of hearing on
the merits of the case, the provision of abatement has to be
construed strictly. On the other hand, the prayer for setting
aside an abatement and the dismissal consequent upon an
abatement, have to be considered liberally. A simple prayer
for bringing the legal representatives on record without
specifically praying for setting aside of an abatement may in
substance be construed as a prayer for setting aside the
abatement. So also a prayer for setting aside abatement as
regards one of the plaintiffs can be construed as a prayer for
setting aside the abatement of the suit in its entirety.
Abatement of suit for failure to move an application for
bringing the legal representatives on record within the
prescribed period of limitation is automatic and a specific
order dismissing the suit as abated is not called for. Once the
41
suit has abated as a matter of law, though there may nothave been passed on record a specific order dismissing the
suit as abated, yet the legal representatives proposing to be
brought on record or any other applicant proposing to bring
the legal representatives of the deceased party on record
would seek the setting aside of an abatement. A prayer for
bringing the legal representatives on record, if allowed, would
have the effect of setting aside the abatement as the relief of
setting aside abatement though not asked for in so many
words is in effect being actually asked for and is necessarily
implied. Too technical or pedantic an approach in such cases
is not called for.
10. In the present case, the learned trial Judge found
sufficient cause for condonation of delay in moving the
application and such finding having been reasonably arrived
at and based on the material available, was not open for
interference by the Division Bench. In fact, the Division
Bench has not even reversed that finding; rather the Division
Bench has proceeded on the reasoning that the suit filed by
three plaintiffs having abated in its entirety by reason of the
death of one of the plaintiffs, and then the fact that no prayer
was made by the two surviving plaintiffs as also by the legal
representatives of the deceased plaintiff for setting aside of
the abatement in its entirety, the suit could not have been
revived. In our opinion, such an approach adopted by the
Division Bench verges on too fine a technicality and results in
42
injustice being done. There was no order in writing passed bythe court dismissing the entire suit as having abated. The suit
has been treated by the Division Bench to have abated in its
entirety by operation of law. For a period of ninety days from
the date of death of any party the suit remains in a state of
suspended animation. And then it abates. The converse
would also logically follow. Once the prayer made by the
legal representatives of the deceased plaintiff for setting
aside the abatement as regards the deceased plaintiff was
allowed, and the legal representatives of the deceased
plaintiff came on record, the constitution of the suit was
rendered good; it revived and the abatement of the suit would
be deemed to have been set aside in its entirety even though
there was no specific prayer made and no specific order of
the court passed in that behalf.”
48. In view of the aforesaid settled position of law and the specific
direction issued by the Hon’ble Supreme Court restoring the
proceedings after setting aside the abatement, it is evident that the
adjudication rendered earlier without determination of the share and
entitlement of Late Madan Lal Modi was incomplete. Once the
abatement stood set aside and his legal representatives were
brought on record, the matter necessarily required a fresh and
effective adjudication qua his rights, as the same has a direct
bearing on the inter se entitlement of all parties.
49. It is pertinent to mention here that the Code of Civil Procedure
empowers the appellate Court to pass an order of remand in the
43
following situations and these situations are covered by Order 41
Rule 23, Order 41 Rule 23-A and Order 41 Rule 25 CPC.
23. Remand of case by Appellate Court.-Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court
may, if it thinks fit, by order remand the case, and
may further direct what issue or issues shall be tried
in the case so remanded, and shall send a copy of its
judgment and order to the Court from whose decree
the appeal is preferred, which directions to re-admit
the suit under its original number in the register of
civil suits, and proceed to determine the suit; and the
evidence (if any) recorded during the original trial
shall, subject all just exceptions, be evidence during
the trial after remand.
23A. 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 same powers as it has under rule 23.
25. Whether appellate court may frame issues and
refer them for trial to court whose decree
appealed from.- where the court from whose decree
the appeal is preferred has omitted to frame or try
44
any issue, or to determine any question of fact, which
appears to the appellate court essential to the right
decision of the suit upon the merits, the appellate
court may, if necessary, frame issues, and refer the
same for trial to the court from whose decree the
appeal is preferred, and in such case shall direct
such court to take the additional evidence required;
and such court shall proceed to try such issues, and
shall return the evidence to the appellate court
together with its findings thereon and the reasons
therefor within such time as may be fixed by the
appellate court or extended by it from time to time.
50. Order 41 Rule 23 CPC provides that where the trial Court has
disposed of the suit upon a preliminary point and the decree is
reversed in appeal, the appellate Court may remand the case. Order
41 Rule 23-A CPC provides that where the trial Court has disposed
of the suit otherwise than on a preliminary point and the decree is
reversed in appeal and a retrial is considered necessary, the
appellate Court shall have the same powers as it has under Rule
23. Order 41 Rule 25 CPC empowers the appellate Court to frame
issues and refer them to the trial Court for determination.
51. On a bare perusal of the above provisions it is crystal clear that the
power of remand is not to be exercised routinely and the appellate
Court must examine whether the conditions contemplated under the
aforesaid provisions are satisfied. The Hon’ble Supreme Court has
repeatedly held that remand should not be ordered mechanically
45
and that the appellate Court should normally decide the appeal itself
unless the circumstances of the case make a retrial necessary in
the interest of justice.
52. Order 41 Rule 23A of the CPC has been inserted in the Code by Act
104 of 1976 w.e.f. 01/02/1977. Prior to the enactment of the Rule
by the amendment, in Rule 23 an order of remand could be passed
only on the reversal of the decree disposing of the suit on a
preliminary point, yet in other case also the appellate Court has
inherent power to remand the case for retrial of the case, when the
appellate Court considers it necessary, in the interest of justice, to
do so. Under the amending Rule 23A CPC, a suit may be
remanded to the trial Court even though such court has disposed of
the case on merits and not merely on preliminary point. The
ingredients of Rule 23A CPC are as under:-
(i) the trial Court has disposed of the suit on merits.
(ii) the decree is reversed in appeal.
(iii) the appellate Court considers that the retrial is necessary.
53. Thus, with the above conditions being satisfied, the appellate Court
can exercise same power of remand under Order 41 Rule 23A CPC.
54. It is also pertinent to mention here that under this Rule only in
exceptional circumstances, the Court may exercise the power of
remand dehors the Rule 23 and 23A of the CPC. It is also important
fact that the order of remand under the Rule 23A of the CPC would
be passed only when the decision of the trial Court is wrong and
when it is necessary to reverse the order setting aside the decree.
Therefore, the necessary conclusion means that the appellate Court
has to consider the evidence on record and then to arrive at a
46
conclusion whether a finding recorded by the trial Court cannot be
supported on evidence on record.
55. In P. Purushottam Reddy and another v. Pratap Steels Limited
(2002) 2 SCC 686, the Hon’ble Supreme Court has explained the
scope of remand and has held thus in para 10 & 11 as under:
“10. The next question to be examined is the legality and
propriety of the order of remand made by the High Court.
Prior to the insertion of Rule 23-A in Order 41 of the Code of
Civil Procedure by the CPC Amendment Act, 1976, there
were only two provisions contemplating remand by a court
of appeal in Order 41 CPC. Rule 23 applies when the trial
court disposes of the entire suit by recording its findings on
a preliminary issue without deciding other issues and the
finding on preliminary issue is reversed in appeal. Rule 25
applies when the appellate court notices an omission on the
part of the trial court to frame or try any issue or to
determine any question of fact which in the opinion of the
appellate court was essential to the right decision of the suit
upon the merits. However, the remand contemplated by
Rule 25 is a limited remand inasmuch as the subordinate
court can try only such issues as are referred to it for trial
and having done so, the evidence recorded, together with
findings and reasons therefor of the trial court, are required
to be returned to the appellate court. However, still it was a
settled position of law before the 1976 Amendment that the
court, in an appropriate case could exercise its inherent
47
jurisdiction under Section 151 CPC to order a remand ifsuch a remand was considered pre-eminently necessary ex
debito justitiae, though not covered by any specific
provision of Order 41 CPC. In cases where additional
evidence is required to be taken in the event of any one of
the clauses of sub-rule (1) of Rule 27 being attracted, such
additional evidence, oral or documentary, is allowed to be
produced either before the appellate court itself or by
directing any court subordinate to the appellate court to
receive such evidence and send it to the appellate court. In
1976, Rule 23-A has been inserted in Order 41 which
provides for a remand by an appellate court hearing an
appeal against a decree if (i) the trial court disposed of the
case otherwise than on a preliminary point, and (ii) the
decree is reversed in appeal and a retrial is considered
necessary. On twin conditions being satisfied, the appellate
court can exercise the same power of remand under Rule
23-A as it is under Rule 23. After the amendment, all the
cases of wholesale remand are covered by Rules 23 and
23-A. In view of the express provisions of these Rules, the
High Court cannot have recourse to its inherent powers to
make a remand because, as held in Mahendra Manilal
Nanavati v. Sushila Mahendra Nanavati (AIR at p. 399), it is
well settled that inherent powers can be availed of ex debito
justitiae only in the absence of express provisions in the
Code. It is only in exceptional cases where the court may
48
now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment
under appeal has not disposed of the case satisfactorily in
the manner required by Order 20 Rule 3 or Order 41 Rule
31 CPC and hence it is no judgment in the eye of law, it
may set aside the same and send the matter back for
rewriting the judgment so as to protect valuable rights of the
parties. An appellate court should be circumspect in
ordering a remand when the case is not covered either by
Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted
order of remand gives the litigation an undeserved lease of
life and, therefore, must be avoided.
11. In the case at hand, the trial court did not dispose of the
suit upon a preliminary point. The suit was decided by
recording findings on all the issues. By its appellate
judgment under appeal herein, the High Court has recorded
its finding on some of the issues, not preliminary, and then
framed three additional issues leaving them to be tried and
decided by the trial court. It is not a case where a retrial is
considered necessary. Neither Rule 23 nor Rule 23-A of
Order 41 applies. None of the conditions contemplated by
Rule 27 exists so as to justify production of additional
evidence by either party under that Rule. The validity of
remand has to be tested by reference to Rule 25. So far as
the objection as to maintainability of the suit for failure of the
plaint to satisfy the requirement of Forms 47 and 48 of
49
Appendix A CPC is concerned, the High Court has itselffound that there was no specific plea taken in the written
statement. The question of framing an issue did not,
therefore, arise. However, the plea was raised on behalf of
the defendants purely as a question of law which, in their
submission, strikes at the very root of the right of the
plaintiff to maintain the suit in the form in which it was filed
and so the plea was permitted to be urged. So far as the
plea as to readiness and willingness by reference to clause
(c) of Section 16 of the Specific Relief Act, 1963 is
concerned, the pleadings are there as they were and the
question of improving upon the pleadings does not arise
inasmuch as neither any of the parties made a prayer for
amendment in the pleadings nor has the High Court allowed
such a liberty. It is true that a specific issue was not framed
by the trial court. Nevertheless, the parties and the trial
court were very much alive to the issue whether Section
16(c) of the Specific Relief Act was complied with or not and
the contentions advanced by the parties in this regard were
also adjudicated upon. The High Court was to examine
whether such finding of the trial court was sustainable or not
in law and on facts. Even otherwise the question could have
been gone into by the High Court and a finding could have
been recorded on the available material inasmuch as the
High Court being the court of first appeal, all the questions
50
of fact and law arising in the case were open before it forconsideration and decision.”
56. Further, in Municipal Corporation, Hyderabad v. Sunder Singh
{J.T. 2008 (7) SC 247}, while considering the scope of Order 41
Rule 23 CPC, the Hon’ble Supreme Court has held thus in para 11
as under:
“11. It is now well settled that before invoking the said
provision, the conditions precedent laid down therein must
be satisfied. It is further well settled that the Court should
loathe to exercise its power in terms of Order XLI Rule 23 of
the code of Civil Procedure and an order of remand should
not be passed routinely. It is not to be exercised by the
appellate court only because it finds it difficult to deal with
the entire matter. If it does not agree with the decision of
the trial court, it has to come with a proper finding of its
own. The Appellate Court cannot shirk its duties.”
57. Similarly, in Ashwinkumar K. Patel v. Upendra J. Patel and
others {AIR 1999 SC 1125}, the Hon’ble Supreme Court has held
that the Appellate Court should not ordinarily remand a case under
Order 41 Rule 23 of CPC, as such, remand orders lead to
unnecessary delay and cause prejudice to the parties and Appellate
Court should itself consider material available and should decide the
appeal one way or other. It was held thus in para 7 as under:
“7. In our view, the High Court should not ordinarily remand
a case under Order 41, Rule 23, C.P.C. to the lower Court
merely because it considered that the reasoning of the
51
lower Court in some respects was wrong. Such remandorders leads to unnecessary delays and cause prejudice to
the parties to the case. When the material was available
before the High Court, it should have itself decided the
appeal one-way or other. It could have considered the
various aspects of the case mentioned in the order of the
trial Court and considered whether the order of the trial
Court ought to be confirmed or reversed or modified. It
could have easily considered the documents and affidavits
and decided about the prima-facie case on the material
available. In matters involving agreements of 1980 (and
1996) on the one hand and an agreement of 1991 on the
other, as in this case, such remand orders would lead to
further delay and uncertainty. We are, therefore, of the view
that the remand by the High Court was not necessary.”
58. Now keeping in view the requirements of Order 41 Rule 23-A CPC
and law laid down by the Hon’ble Supreme Court, this Court
examined the legality and correctness of the impugned judgment of
the first appellate court. In the present case the trial Court has
disposed of the suit on its merits by recording the evidence on all
the issues and not on the preliminary point.
59. Thus, from the aforesaid decisions it is clear that although the power
of remand exists, such power must be exercised cautiously and only
where the circumstances of the case make a retrial necessary.
60. The trial Court has passed the order on 20/12/2016 dismissed the
application filed by the legal heirs of late Madan Lal Modi under
52
Order 22 Rule 9 (2) read with Section 151 of the CPC and Section 5
of the Limitation Act to bring the legal representatives on record on
the ground that Madan Lal Modi has expired on 11.04.1992 and his
legal representative could not move the application within limitation,
as such the trial Court has abated the suit against him.
61. It is an admitted fact that during the pendency of the civil suit,
plaintiff No.1 Madan Lal Modi has expired on 11.04.1992 at that time
the suit was abated by the trial Court. In the absence of
representation of Madan Lal Modi, plaintiffs No.3 A to 3C have filed
the application under Order 6 Rule 17 CPC for amendment in the
plaint. The application filed under Order 6 Rule 17 CPC is
reproduced hereinbelow:-
2& ;g fd okn ds voyksdu ls oknhx.k dks ;g tkudkjh gqbZ dh okn ds
iquZxBu ds le; tks okn i= dh izfr is’k dh xbZ gS vkSj ckn esa oknhx.k }kjk
okn i= dh izekf.kr izfrfyfi o”kZ 1976 dks tks is’k fd;k x;k gS mlesa dqN
fyfidh; =qfV gS ftls oknhx.k viuk la’kks/ku vkosnu ds ek/;e ls lq/kkj djuk
pkgrs gSaA
3& ;g fd oknhx.k vius nkok ds vfHkopu ds lkFk layXu ‘ksM+~;wy esa
fuEukuqlkj la’kks/ku lekfo”V djuk pkgrs gSAa
v½ ;g fd ‘ksM~;wy v esa tgkaW [kljk ua- 433@6 gS mls 439@6 ,oa 497@16 ds
LFkku ij 497@10 ,oa 826 ds LFkku ij 839 dqy jdck 8-38 ds LFkku ij 8-43
fd;k tkos blh rjg mDr ‘ksM+;wy esa 1091@3 ds txg 1094@3] 1099 dh txg
1095] 1144@1 [k dks ?k fd;k tkos rFkk x dks v fy[kk tkos ,oa 497@25 ds
LFkku ij 497@29 rFkk 732@5 jdck 0-15 ds LFkku ij 0-11 fy[kk tkos rFkk 0-
53
14 dks foyqIr djrs gq, 732@6 ds jdck 0-20 dks 0-10 ,oa 0-70 dks 0-73 rFkk1-50 dks 1-29 fy[kk tkosA
c½ ;g fd ‘ksM~;wy M esa }kjdknkl ds fgLls ds [kljk ua- 493@28 dks 493@106
i<+k tkosA
l½ ;g fd ‘ksM~;wy M enuyky ds fgLls dh [kljk ua- 732@3 dks 732@18 ,oa
1091@03 dks 1094@3 fy[kk tkosA
4& ;g dh mDr la’kks/ku ls okn ds Lo:i esa fdlh Hkh izdkj dk ifjorZu ugh
gks jgk gS cfYd oknhx.k }kjk tks fyfidh; =qfV gqbZ gS mls la’kks/ku vkosnu ds
ek/;e ls la’kks/ku djuk pkgrs gSaA
62. Respondents No.4 A to F have categorically opposed the said
application and contended that in the year 1996 the concerned
record was burnt. The original plaint was filed in the year 1976 and
the schedule which was appended in the said suit in which some
changes have been tried to be done. However, the trial Court has
allowed the application on 04/01/2018 and before that on account of
death of Madan Lal Modi his suit was abated. Therefore, it is crystal
clear that at that point of time the legal heirs were not heard.
63. Examining the facts of the present case in the light of the aforesaid
principles, it is evident that during the pendency of the civil suit
plaintiff No.1 Madan Lal Modi expired on 11.04.1992 and the
learned trial Court dismissed the application filed by his legal
representatives for setting aside the abatement and consequently
the suit stood abated against him. As a result, the legal
representatives of late Madan Lal Modi could not participate in the
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trial nor could they lead evidence before the learned trial Court,
therefore, their legal right was affected.
64. Subsequently, the Hon’ble Supreme Court by order dated
28.04.2025 set aside the abatement qua late Madan Lal Modi and
directed that his legal representatives shall stand substituted as
plaintiffs. Consequently, the proceedings stand revived to the stage
prior to the death of Madan Lal Modi and the legal representatives
of the deceased plaintiff are entitled to prosecute the suit on merits.
65. This Court has also examined the evidence available on record,
particularly the schedule appended with Exhibit P-137 (1976), the
Schedule prepared upon reinstitution in the year 2003 and the
subsequent modification dated 06.01.2018, that material variations
have occurred in the khasra particulars as well as in the recorded
area of the suit lands. Several khasra numbers forming part of the
original holding as reflected in the 1976 schedule, such as Khasra
Nos. 493/6, 497/10, 839, 1094/3, 1095 and 497/29, are shown in
altered form in the later schedules as 433/6, 497/16, 820, 1091/3,
1099 and 457/25 respectively. Likewise, discrepancies are also
evident in the 732 series, where both the khasra particulars and the
corresponding rakba have undergone variation. Apart from changes
in numbering, the total area of the land also reflects inconsistency,
the aggregate rakba being 9.68 in the year 1976 schedule, reduced
to 8.38 in the year 2003 schedule and subsequently reflected as
8.43 after correction dated 06.01.2018. Further, even in respect of
identical khasra numbers appearing in different schedules,
variations in rakba are noticeable, indicating internal inconsistency
55
in the description of the property. Since khasra number and rakba
constitute the primary indicia of identity and extent of immovable
property, these variations materially affect the identification and
situational particulars of the suit land. Such discrepancies cannot be
conclusively resolved without a proper evidentiary examination of
the revenue record. Accordingly, this Court refrains from returning
any final finding on the identity or extent of the land at this stage,
leaving the issue open for determination by the learned Trial Court
upon remand.
66. Therefore, in the peculiar facts and circumstances of the case and
in view of the order passed by the Hon’ble Supreme Court restoring
the proceedings qua late Madan Lal Modi. Therefore, in order to
ensure that no injustice is caused to any of the parties, and keeping
in view the variations appearing in the khasra numbers and
description of the property as well as the documents produced by
the legal representatives of Late Madan Lal Modi, this Court is of the
considered opinion that the controversy requires fresh examination
on the basis of evidence and the matter deserves to be adjudicated
afresh by the learned trial Court.
67. Accordingly, Issue No.1 is answered in the affirmative and it is held
that the matter deserves to be remanded to the learned trial Court
for fresh adjudication.
68. In such circumstances, the case squarely falls within the ambit of
Order 41 Rule 23-A of the Code of Civil Procedure, which empowers
the Appellate Court to remand the matter where retrial is considered
necessary notwithstanding disposal of the suit on merits. Since
56
determination of the share of Late Madan Lal Modi would have a
direct bearing on the ultimate rights of the parties and the issues
framed in the present appeal, this Court is of the view that remand
for limited fresh adjudication is warranted.
69. Since the matter is being remanded for fresh adjudication, in the
context of the present dispute, it is also to be examined as to the
respective shares and entitlement of the parties in the suit
properties, including as to which party is entitled to what portion
thereof. The determination regarding allocation and distribution of
shares in the suit properties is per se connected with the identity,
extent and description of the properties and the rights flowing
therefrom, which could not be conclusively adjudicated in the
absence of complete and proper evidence on record. Issue No. 2 is
left open to be determined by the learned trial Court on the basis of
the evidence that may be led by the parties.
70. Accordingly, FA No.3 of 2023 is hereby allowed and impugned
judgment and decree dated 14.12.2018 is set aside and the suit is
remitted back for fresh adjudication. Consequently, FA No.206 of
2019 is disposed of in terms off judgment and decree passed in FA
No.3 of 2023. No order as to costs.
71. The Registry is directed to scan the records of the case before
sending it back to the trial Court as in earlier occasion the records of
the case was burnt.
72. The parties are directed to appear before the learned Trial Court on
04th of May, 2026 without awaiting further notice.
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73. The learned Trial Court shall be at liberty to frame additional issues,
permit parties to file amendment application as well as application
for taking documents on record and lead evidence, if necessary, and
adjudicate the matter afresh in accordance with law. Considering
that the matter pertains to long pending litigation, the learned Trial
Court is requested to decide the matter expeditiously, preferably
within a period of Eight months from the date of appearance of the
parties.
74. It is directed that the trial Court shall not give unnecessary
adjournments and shall conclude the trial on day to day basis and
the parties are also directed to co-operate in the trial before the trial
Court.
75. Pending applications, if any, shall stand disposed of.
76. A decree be drawn accordingly.
Sd/-
(Arvind Kumar Verma)
JUDGE
ashu
