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2026:CGHC:15440

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on 24-03-2026

Judgment delivered on 06-04-2026

MA No. 34 of 2024

1 - Ajay Kumar S/o Late Sahdev Prasad Dewangan Aged About 57

Years R/o Kumharpara, Juna Bilaspur, Police Station- City Kotwali,

Tahsil And District- Bilaspur, Chhattisgarh.

2 - Manoj Kumar S/o Late Sahdev Prasad Dewangan Aged About 49

Years R/o Kumharpara, Juna Bilaspur, Police Station- City Kotwali,

Tahsil And District- Bilaspur, Chhattisgarh.

3 - Laxmi Prasad Dewangan S/o Late Jivanlal Dewangan Aged About

72 Years R/o Puspanjali Nagar, Karabala Road, Bilaspur, Police Station-

City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

4 - Jitendra Kumar Dewangan S/o Laxmi Prasad Dewangan Aged About

42 Years R/o Puspanjali Nagar, Karabala Road, Bilaspur, Police Station-

City Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

5 - Ravi Kumar S/o Late Santram Dewangan Aged About 41 Years R/o

Kumharpara Santi Lodge Marg, Juna Bilaspur, Police Station- City

Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

6 - Shrikant S/o Late Santram Dewangan Aged About 39 Years R/o

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Kumharpara Santi Lodge Marg, Juna Bilaspur, Police Station- City

Kotwali, Tahsil And District- Bilaspur, Chhattisgarh.

... Appellant (s)

versus

1 - Ajay Sidara S/o Late Hariram Sidara Aged About 38 Years R/o

Maharani Vidyalay, Dayalband Bilaspur, Tahsil And District Bilaspur,

Chhattisgarh.

2 - Khagendra Manhar S/o Sevakram Manhar Aged About 58 Years R/o

Bharti Nagar Chowk, Bilaspur, Owner Of Astha Petrol Pump Vyapar

Vihar Road, Tahsil And District- Bilaspur, Chhattisgarh.

3 - State Of Chhattisgarh Through Collector Bilaspur, Chhattisgarh.

4 - Jai Jinas S/o Late Pratap Singh Jinas Aged About 65 Years R/o Near

About Tifra Over Bridge, Jarhabhata Raipur Road, Behind Hotel

Platinum Bilaspur, Tahsil And District- Bilaspur, Chhattisgarh.

5 - Vinay Kumar Saluja S/o Mahendra Saluja Aged About 56 Years R/o

Gandhi Chowk Bilaspur, Proprietor Hotel Celebrity Bilaspur, Tahsil And

District Bilaspur, Chhattisgarh.

6 - Harsha Rana W/o Tishu Rana Aged About 45 Years R/o Tifra

Bilaspur, Landmark Chandela Vihar Priydarshniya Nagar Bilaspur,

Tahsil And District- Bilaspur, Chhattisgarh.

…. Respondent(s)

(Cause title is taken from CIS)

For Appellants :Mr. Ashok Kumar Shukla, Advocate

alongwith Mr. Amit Kumar and Mr. Vikas

Ghritlahre, Advocates

For Respondents No. 1 :

Mr. B.P. Sharma, Advocate alongwith

Mr. K.N. Singh, Advocate

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For Respondent No.6

Mr. Curtis Collins, Advocate

For State :Mr. Anand Gupta, Dy. Govt. Advocate

Hon'ble Shri Justice Bibhu Datta Guru

C A V Judgment

1.The present appeal has been filed by the plaintiffs under Order 41

Rule 1 of the Code of Civil Procedure, 1908, assailing the

judgment dated 20.03.2024 passed by the learned 6

th

Additional

District Judge, Bilaspur (C.G.) in Civil Appeal No. 29-A/2022 (Ajay

Sidara vs. Ajay Kumar & Ors.), reversing the judgment and decree

dated 19.08.2016 passed by the learned 4

th

Civil Judge, Class-I,

Bilaspur (C.G.), in Civil Suit No.37-A/2011 (Ajay Kumar & Others

v Khagendra Manhar & Others), whereby the civil appeal filed by

one Ajay Sidara (who was not impleaded as a party in the civil

suit) was allowed and the judgment and decree of the trial Court is

set aside by the learned First Appellate Court and the case is

remanded back to the trial Court for fresh adjudication with a

direction to restore the civil suit to its original number, affording the

parties opportunity of hearing and to adduce evidence. For the

sake of convenience, the parties shall hereinafter be referred to

as per their status before the Trial Court.

2.In the present case, a third party, namely Ajay Sidara, who was

not impleaded as a party in the original civil suit, preferred an

appeal under Section 96 of the CPC before the learned First

Appellate Court. It was contended by him that the suit property

had initially been sold by defendant No.1 (Khagendra Manhar)/

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respondent No.2 herein to Smt. Harsha Rana (respondent No.6

herein) in the year 2009, and thereafter, he had purchased the

same property from Smt. Harsha Rana by way of a registered

sale deed dated 25.07.2020. He further submitted that the

judgment and decree dated 19.08.2016 had been passed ex parte

by the trial Court without impleading him or his predecessor-in-

title, thereby violating the principles of natural justice. It was also

urged that he came to know about the said decree only during

execution proceedings when interference was caused with his

possession, and being an aggrieved person claiming right, title,

and possession over the suit property, he was entitled to

challenge the said judgment and decree before the First Appellate

Court.

Case of the plaintiffs :

3.The plaintiffs instituted the suit seeking declaration of title and

permanent injunction in respect of land bearing Khasra No. 601/8

admeasuring 1440 sq. ft., situated at village Tifra, Bilaspur,

pleading inter alia that the suit property was originally purchased

by one Vinay Kumar Saluja through a registered sale deed dated

21.05.2002, who thereafter sold different portions of the said land

to the plaintiffs by registered sale deeds dated 29.02.2004,

pursuant to which the plaintiffs’ names were duly mutated in the

revenue records and they came into peaceful possession. It was

further pleaded that the plaintiffs got the land demarcated through

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competent authority and have been in continuous possession;

however, on 04.12.2010, defendant No.1 attempted to encroach

upon the suit land by starting construction and threatened the

plaintiffs, thereby giving rise to the cause of action. The plaintiffs

further asserted that the land claimed by defendant No.1 had

already been affected by road widening and stood vested in the

municipal authority, and therefore, defendant No.1 has no right or

interest over the suit property. Accordingly, the suit has been filed

seeking declaration of title and permanent injunction restraining

interference with possession.

4.In the suit, the defendants remained absent and were proceeded

ex parte, and no written statement was filed on their behalf.

5.After framing the issues and upon due appreciation of the oral as

well as documentary evidence available on record, the learned

Trial Court allowed the suit filed by the plaintiffs, holding that the

plaintiffs have established their claim over the suit land.

6.Aggrieved by the said judgment and decree dated 19.08.2016, a

third party, namely Ajay Sidara (respondent No.1 herein) - who

was not originally impleaded in the suit but claims to have

subsequently purchased the suit property through a registered

sale deed dated 25.07.2020 preferred an appeal under Section 96

of the Code of Civil Procedure before the learned First Appellate

Court, contending that the decree was passed without affording

him an opportunity of hearing.

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7.The learned First Appellate Court, on re-appreciation of the entire

evidence on record, reversed the findings recorded by the learned

Trial Court, allowed the appeal in favour of the appellant therein

(Ajay Sidara), and remanded the matter back to the Trial Court for

fresh adjudication vide the impugned judgment. Accordingly, the

matter was remitted to the Trial Court for fresh adjudication with a

direction to restore the civil suit to its original number, affording the

parties opportunity of hearing and to adduce evidence and

deciding the case afresh on its own merits. Hence, the present

appeal by the plaintiffs.

Contention of the parties :

8.(i) Learned counsel for the appellants submits that the impugned

judgment of remand passed by the learned Appellate Court is

wholly without jurisdiction and contrary to the settled principles

governing remand under Order 41 Rules 23, 23-A and 24 of the

CPC. He submits that the first appeal itself was not maintainable,

as the same was filed by a stranger to the suit, namely Ajay

Sidara, without obtaining leave of the Court, and therefore the

entire proceedings are vitiated. He also submits that the objection

regarding non-joinder of necessary parties was never raised by

the original defendant No.1 Khangendra Manhar during trial, nor

was the ex parte judgment and decree dated 19/08/2016 ever

challenged by him either by filing an appeal or by moving an

application under Order 9 Rule 13 CPC, and hence such objection

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could not have been permitted to be raised at the instance of a

subsequent purchaser.

(ii) Learned counsel further submits that the subsequent

purchaser, having acquired the property much after the decree,

cannot be permitted to reopen the concluded proceedings,

particularly when the decree has already been executed on

02/02/2021 and possession has been delivered to the decree-

holder. The proper remedy available to such purchaser, if any, is

to institute an independent suit and not to assail a duly executed

decree in collateral proceedings. Learned counsel submits that

both Harsha Rana as well as Ajay Sidara had unsuccessfully

approached the executing court by filing applications under

Section 151 CPC seeking stay of execution, which were rejected

and have attained finality. He also contended that the lands of the

appellants and the respondents are entirely distinct, having

separate survey numbers, boundaries and areas, which is evident

from the sale deeds and the demarcation conducted during trial.

The trial Court, after due demarcation and appreciation of

evidence, had rightly decreed the suit, and therefore the remand

order is unsustainable. Learned counsel further contends that the

conduct of respondent Ajay Sidara, including attempts to influence

the proceedings as noted in the order sheet, reflects abuse of the

process of law. He lastly submits that in an appeal under Order 43

Rule 1(u) CPC against an order of remand, there is no

requirement for framing substantial questions of law, and even

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otherwise, the impugned order suffers from patent illegality and

deserves to be set aside.

9.(a) On the other hand, learned counsel for the respondents submit

that the present miscellaneous appeal, preferred under Order

XLIII Rule 1 of the CPC, is wholly misconceived, not maintainable,

and liable to be dismissed at the threshold. Learned counsel

would submit that the learned First Appellate Court has rightly set

aside the judgment and decree dated 19.08.2016 and remanded

the matter to the Trial Court for fresh adjudication after affording

an opportunity to the necessary parties, including respondent No.

1 and respondent No. 6, to participate in the proceedings and

defend their rights over the suit property. Learned counsel would

also submit that the scope of an appeal under Order XLIII Rule 1

CPC is limited and akin to that under Section 100 CPC, and

therefore, the appellant cannot agitate questions of fact or

reappreciation of evidence. Placing reliance on the judgments in

Narayanan v. Kumaran reported in (2004) 4 SCC 26 and

Jegannathan v. Raju Sigamani reported in (2012) 5 SCC 540,

learned counsel contend that such appeal can be entertained only

on substantial questions of law, and the High Court must confine

itself to examining the legality of the remand order alone.

(b) Learned counsel would further submit that in the present case,

the remand has been ordered under Order XLI Rule 23-A CPC, as

the suit was earlier decided on merits without proper opportunity

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to all necessary parties, which is legally permissible and justified.

Learned counsel further submits that the principle of finality of

litigation cannot be invoked to perpetuate injustice or fraud.

Relying upon the judgment in S.P. Chengalvaraya Naidu v.

Jagannath reported in (1994) 1 SCC 1 , learned counsel

contends that any decree obtained by fraud is a nullity in the eyes

of law and can be challenged at any stage. It is specifically

alleged that the plaintiff/appellant obtained the ex parte decree by

suppressing material facts and by adopting fraudulent means,

including manipulation and forgery of documents, particularly in

relation to Smt. Harsha Rana, for which an FIR No. 560/2021 has

also been lodged. He also contends that the plaintiffs deliberately

avoided impleading necessary parties and even interfered with

their right to defend by ensuring their non-appearance, thereby

securing an ex parte decree over a valuable property. Such

conduct disentitles the appellants from any equitable relief. The

remand order, therefore, ensures a fair trial by granting

opportunity to all affected parties and cannot be faulted. Learned

counsel lastly prayed that the present appeal be dismissed as

devoid of merit and the order of remand passed by the learned

First Appellate Court be upheld. Learned counsel contended that

in the suit, the plaintiffs have not impleaded Harsha Rana

whereas they only impleaded Khagendra Manhar, this act of the

plaintiffs comes under the purview of fraud and contrary to the

well settled principle of law laid down by the Supreme Court.

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10.I have heard learned counsel for the respective parties and the

impugned judgments and decrees passed by the learned trial

Court as also the learned First Appellate Court have been

carefully examined.

Analysis :

11.Upon careful consideration of the entire record, this Court finds

that although the learned Trial Court had decreed the suit in

favour of the plaintiffs on the basis of the evidence available on

record, the said adjudication was rendered in absence of

necessary parties having a direct interest in the suit property. The

Trial Court proceeded ex parte against the defendants therein

without examining whether the persons having subsisting title

over the suit property were before the Court.

12.It is an admitted position emerging from the record that prior to

institution of the suit on 06.12.2010, the original defendant

Khagendra Manhar had already sold the suit property in favour of

Smt. Harsha Rana by a registered sale deed dated 02.12.2009.

Thus, on the date of institution of the suit, the said defendant

(Khagendra Manhar) had no subsisting right, title or interest in the

suit property. Despite this, the plaintiffs chosen not to implead

Smt. Harsha Rana, who was the actual holder of title at the

relevant time.

13.The learned First Appellate Court has rightly appreciated this

factual and legal position and recorded a finding that Smt. Harsha

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Rana, and thereafter the subsequent purchaser Ajay Sidara, are

necessary parties, as any adjudication in respect of the suit

property would directly affect their rights. Non-impleadment of

such necessary parties has rightly been held to be fatal to the

case of the plaintiffs.

14.The principle relating to necessary parties is well settled that a

person whose presence is essential for complete and effective

adjudication of the dispute must be impleaded, failing which the

decree passed becomes vulnerable. In the present case, the non-

impleadment of the transferee, in whose favour the title stood

transferred even prior to the institution of the suit, strikes at the

very maintainability of the proceedings.

15.This Court finds no infirmity in the said finding. It is a settled

principle that where a person, in whose favour title stands

transferred prior to institution of the suit, is not impleaded, the

decree passed in such proceedings cannot be treated as binding

upon such person. In absence of necessary parties, effective and

complete adjudication of the dispute is not possible. This Court

also finds that the learned First Appellate Court has exercised its

jurisdiction under Order XLI Rule 23-A CPC in a proper and

justified manner. The remand has not been ordered mechanically,

but only after recording a finding that the suit itself was decided

without impleadment of necessary parties and without giving them

an opportunity of hearing.

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16.The objection of the appellants that the appeal preferred by Ajay

Sidara was not maintainable, as he was not a party to the suit,

does not merit acceptance. The learned first appellate Court has

rightly observed that a person who is prejudicially affected by a

judgment and decree is entitled to challenge the same.

17.The Hon’ble Supreme Court in V.N. Krishna Murthy & Anr. vs.

Ravikumar & Ors., (2020) 9 SCC 501, held that a non-party can

maintain an appeal with leave if he is a “person aggrieved” and

the said decision squarely applies to the case at hand. Further,

the contention of the respondents that the decree was obtained

without impleading necessary parties and thereby in violation of

principles of natural justice also deserves consideration.

18.Whether a person is a necessary party is essentially a question of

fact, to be determined in light of the reliefs claimed in the suit.

However, once it is established that such person is a necessary

party, the issue becomes a question of law and, therefore, can be

raised even for the first time at the appellate stage.

19.The Hon’ble Supreme Court in S.P. Chengalvaraya Naidu

(supra) has held that a decree obtained by playing fraud or by

suppressing material facts cannot be sustained and is a nullity in

the eyes of law.

20.In the present case, the plaintiffs instituted the suit against a

person who had already divested himself of title and failed to

implead the actual owner of the property, thereby resulting in a

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one-sided adjudication. Such a decree cannot be allowed to stand

merely on the ground of finality.

21.In the case at hand, the order of remand passed by the learned

First Appellate Court is based on the finding of non-joinder of

necessary parties and violation of principles of natural justice,

which goes to the root of the matter. The said finding cannot be

said to be either perverse or contrary to law. The learned First

Appellate Court has exercised its jurisdiction under Order XLI

Rule 23-A CPC in a proper manner by remanding the matter to

the Trial Court for fresh adjudication after impleadment of

necessary parties and affording them opportunity of hearing. In

cases where the foundational defect exists, remand is not only

justified but necessary.

22.The learned First Appellate Court has further rightly taken into

consideration that the entire trial was conducted without affording

opportunity to the persons having real interest in the suit property.

In such circumstances, the decree passed by the Trial Court could

not have been sustained merely on the ground that evidence was

led by the plaintiffs.

23.In view of the above, this Court is of the considered opinion that

the learned First Appellate Court has not committed any error

while setting aside the judgment and decree and remanding the

matter to the Trial Court for adjudication of the same after

impleading necessary parties i.e. Harsha Rana and Ajay Sidara.

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The finding that there was non-joinder of necessary parties, going

to the root of the matter, is well-founded and based on proper

appreciation of record. In fact, the remand order has been passed

to ensure that all necessary parties are impleaded and are

afforded proper opportunity to contest the matter. The direction to

restore the suit and permit the parties to file pleadings and lead

evidence is in furtherance of the principles of natural justice and

cannot be said to be unwarranted.

24.This Court is also of the view that in the facts of the present case,

where the very foundation of the suit was defective due to

absence of necessary parties, the learned First Appellate Court

was justified in remanding the matter for fresh adjudication rather

than deciding the matter finally in absence of complete pleadings

and participation of all concerned parties. The contention of the

plaintiffs that the remand has unnecessarily prolonged the

litigation cannot be accepted in the present factual matrix, as the

defect in the suit was fundamental in nature and could not have

been cured without affording opportunity to the necessary parties.

25.Therefore, this Court finds that the impugned judgment passed by

the learned First Appellate Court is based on correct appreciation

of facts and law and does not suffer from any illegality or

perversity warranting interference.

26.In view of the foregoing analysis and applying the settled

principles of law to the facts of the present case, this Court finds

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no infirmity or illegality in the impugned judgment dated

20.03.2024 passed by the learned First Appellate Court. The said

judgment, whereby the decree of the Trial Court has been set

aside and the matter has been remanded for fresh adjudication

after impleadment of necessary parties and affording them due

opportunity of hearing, is just, proper and in accordance with law.

Consequently, the present appeal, being devoid of merit,

deserves to be and is hereby dismissed.

27.It is directed that the Trial Court shall proceed with further hearing,

record additional evidence if necessary, and decide the suit in

accordance with law and on its own merits, ensuring that all

necessary parties are impleaded and given due opportunity of

being heard. The parties are directed to appear before the Trial

Court on 06/05/2026.

28.Before parting with the case, it is made clear that this Court has

not expressed any opinion on the merits of the matter. The

learned Trial Court shall proceed to adjudicate the case

independently, in accordance with law, and on the basis of the

evidence that may be led by the parties, without being influenced

by any observations made in this judgment.

29.There shall be no order as to cost(s).

Sd/-

(Bibhu Datta Guru)

Judge

$. Bhilwar/Gowri