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2026:CGHC:9205

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

Judgment reserved on 17-02-2026

Judgment delivered on 23-02-2026

MA No. 20 of 2026

1 - Hemant Kumar Sahu S/o Late Bholaram Sahu Aged About 38 Years

R/o Village Latabod, Harish Welding Shop, Main Road Latabod, Tahsil

And District Balod (C.G.)

2 - Harishchand Sahu S/o Late Bholaram Sahu Aged About 45 Years R/o

Village Latabod, Harish Welding Shop, Main Road Latabod, Tahsil And

District Balod (C.G.)

3 - Gayatri Sahu D/o Late Bholaram Sahu Aged About 42 Years R/o

Village Latabod, Harish Welding Shop, Main Road Latabod, Tahsil And

District Balod (C.G.)

4 - Purushottam Sahu S/o Late Bholaram Sahu Aged About 52 Years R/o

Bargaon, Tahsil Dongargaon, District Rajnandgaon (C.G.)

5 - Krishna Bai Wd/o Late Bholaram Sahu Aged About 70 Years R/o

Bargaon, Tahsil Dongargaon, District Rajnandgaon (C.G.)

... Appellants

versus

1 - Ashwani Kumar S/o Late Taran Das Sahu Aged About 60 Years R/o

Village Bohardeeh, Tashil Patan, District Durg (C.G.)

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2 - Devraj Sahu S/o Vishnu Sahu Aged About 30 Years (Wrongly

Mentioned As Late Taran Das Sahu), R/o Nehru Nagar Utai, Tahsil And

District Durg (C.G.)

3 - State Of Chhattisgarh Through The District Magistrate, District Durg

(C.G.)

..Respondents

For Appellants :Mr. Praveen Dhurandhar, Advocate

For Respondent No.1 :Mr. Alok Bakshi, Advocate

For Respondent No.2 :Ms. Mitisha Kotecha, Advocate

For Respondent/State :Mr. Anand Gupta, Dy. G.A.

Hon'ble Shri Bibhu Datta Guru , J

C A V Judgment

1.By the present appeal under Order 43 Rule 1(u) of the Code of

Civil Procedure, 1908 (for brevity ‘the CPC’), the

appellants/plaintiffs challenging the impugned judgment and

decree dated 18/11/2025 passed by the learned District Judge,

Patan, District Durg C.G. in New Civil Appeal No.190-A/2024

(Old Appeal No.94-A/2023) (Ashwani Kumar & Anr Vs. Hemant

Kumar Sahu & Ors), whereby the judgment and decree passed by

the learned Civil Judge, Class-I, Patan, District Durg, C.G. in Civil

Suit No.08A/2021 dated 14/08/2023 (Hemant Kumar Sahu & Ors

Vs. Aswani Kumar & Ors) has been set-aside and the matter has

been remanded to the trial Court for fresh adjudication.

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2.For the sake of convenience, the parties would be referred as per

their status before the learned trial Court.

3.The plaintiffs preferred a suit seeking a declaration, permanent

injunction and partition, pleading inter alia that defendant No.1

Ashwani Kumar and Bholaram (father of plaintiffs No. 1 to 4 and

husband of Plaintiff No. 5) were real brothers. Bholaram passed

away in the year 2012. In the name of late Bholaram, agricultural

lands situated at Village Bohardih, Patwari Halka No. 19, Revenue

Circle Bhilai, Tehsil Patan, District Durg, bearing Khasra Nos.

119/2, 119/3, 154, 155/1, 155/2, 155/3, 289/1, 289/2, 289/3, 290/1,

290/2, 290/3, 386, 424, having areas respectively 0.240, 0.360,

2.550, 1.350, 0.330, 0.160, 0.230, 0.320, 0.280, 0.280, 0.210,

0.350, 0.030, 0.450 hectares, totaling 14 khasras and total area

7.940 hectares, and Khasra Nos. 522, 32, 396/1, 513, 386 having

areas respectively 0.13, 3.21, 0.69, 2.24, 0.03 hectares totaling

6.30 hectares, were recorded in his name as landowner in the year

1994–95. During his lifetime, late Bholaram had filed a civil suit

disputing that defendant No. 1, Ashwani Kumar, was not his real

brother; however, the said suit was dismissed on 02.04.2005.

Defendant No.1 had also submitted an application before the

Tehsildar for recording possession, pursuant to which an order

dated 16.05.2001 was passed directing that possession of the

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disputed land be recorded in the name of Defendant No.1. Thus,

the plaintiffs and Defendant No. 1 became joint landowners of the

disputed property. Late Bholaram had also filed a claim seeking

declaration that the sale of land bearing Khasra No. 32, area 3.21

hectares, executed in favor of Janaki Bai, be declared null and void

and not binding upon Ashwani Kumar, and accordingly, he was

declared co-owner in respect of the said disputed land. Similarly,

late Bholaram had sold lands bearing Khasra Nos. 255, 31, 396/1,

513, and 386. By judgment and decree dated 31.08.2017,

Defendant No.1 was declared co-owner in respect of the said

lands. Therefore, the disputed land is joint family property of the

plaintiffs and defendants, and no partition has taken place till date.

However, Defendant No.1, without effecting any partition in favor

of the legal heirs of late Bholaram, colluded with the Patwari and

got his name recorded in the revenue records. Out of the disputed

lands, defendant No. 1 has sold Khasra Nos. 154 and 154/1.

Hence, the plaintiffs claim that they are the sole title holders and

persons in possession to the extent of their share in the suit

property, and that they are entitled to 1/2 share in the aforesaid

lands.

4.In the said Civil Suit, the defendants No.1 and 2 submitted their

written statement and denied the plaint averments. They submitted

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that Bholaram, had ousted Ashwani Kumar from the house and, on

08.01.1984, got him declared dead and thereafter got his own

name recorded over the entire agricultural land situated at Village

Bohardih. Thereafter, the Court declared Ashwani Kumar as co-

owner of the entire suit property. On the basis of the said judgment

and decree, Ashwani Kumar filed an application before the

Tehsildar in the year 2005–06 seeking partition, and accordingly,

the said land was partitioned. Similarly, by judgment dated

31.08.2017, Ashwani Kumar was declared co-owner in respect of

Khasra Nos. 522, 32, 396/1, 513, and 386, and the sale deed dated

15.02.2002 was declared illegal and void. Therefore, the suit

property is not the joint property of the plaintiffs. The said

property has been declared to be the lawful property of the

defendant based on the judgment passed by the civil Court. It is

further submitted that the lands sold to defendant No. 2 were

agricultural lands lawfully owned and possessed by defendant No.

1 Ashwani Kumar, and that the sale deeds executed on 20.03.2013

and 12.03.2018 are valid; hence, they cannot be declared void. The

plaintiffs are not entitled to a 1/2 share or any right in the suit

property; therefore, no partition of the joint account can be

effected. The plaintiffs are not in cultivating possession of the said

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land; therefore, they have no right to seek declaration of title over

the agricultural land.

5.The learned Trial Court, after framing the issues and upon due

consideration of the evidence adduced by both the parties as well

as the material available on record, allowed the suit filed by the

plaintiffs holding that the evidence produced by the plaintiffs and

Defendant No. 1 clearly establishes that the disputed land is

ancestral property belonging to both the plaintiffs and Defendant

No.1. This makes it evident that Bholaram, brother of defendant

No.1 had a rightful share in the ancestral property, and after his

death, his legal heirs, who are the plaintiffs in the present case, are

entitled to his share and rights. No evidence has been produced by

either party in the case to show that the disputed land had been

previously partitioned. Therefore, based on the evidence available

on record, the plaintiffs’ ownership over the disputed land is

proved, and they are found entitled to a 1/2 (one-half) share in the

said property. The trial Court further held that the plaintiffs are

entitled to a 1/2 (one-half) share in the disputed land. In such

circumstances, the sale executed by Defendant No. 1 in favor of

Defendant No. 2 on 14.06.2013, in respect of a portion of Khasra

No. 154 measuring 2.01 hectares and a portion of Khasra No.

154/1 measuring 0.45 hectares, which has been exhibited in the

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case as Exhibits P-30 and P-31, was made without the consent of

the plaintiffs. Therefore, the said sale deed is liable to be declared

illegal and void. Further, once the plaintiffs’ share in the suit

property stands proved, it becomes necessary to restrain defendant

No. 1 from making any further sale or transfer of the disputed

property. Accordingly, there are sufficient grounds to grant a

decree of permanent injunction in favor of the plaintiffs.

6.Aggrieved by the said judgment and decree, the defendants

preferred a Civil Appeal before the learned first Appellate Court

and also filed an application under Order XLI Rule 27 of the CPC.

The learned Appellate Court allowed the said application and

thereafter without adjudicating the appeal on its merits, set aside

the judgment and decree dated 14.08.2023 passed by the learned

Trial Court and remanded the matter to the Trial Court with a

direction to restore the suit to its original number and to implead

the legal heirs of Laxmi Bai, namely; Sumitra Bai & Kamla Bai, as

necessary parties to the proceedings in accordance with law. The

Court was further directed to afford a proper opportunity of

hearing to both parties, particularly in relation to the certified

copies of documents filed by the defendants by an application

under Order XLI Rule 27 of the CPC in the appeal, and thereafter

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to decide the matter afresh on its merits in accordance with law.

Thus, this appeal by the appellants/plaintiffs.

7.Learned counsel for the appellants/plaintiffs would submit that the

learned Appellate Court has not acted properly while allowing the

application filed under Order XLI Rule 27 of the CPC that too

without appreciating that there were no pleadings in the written

statement of the defendants in respect of the documents/evidence

sought to be produced at the appellate stage. Learned counsel

further submitted that before invoking its powers under Order XLI

Rule 23A of the CPC, the learned Appellate Court failed to satisfy

itself that a retrial was necessary. The issues duly framed and

decided by the learned Trial Court were neither properly dealt with

nor reversed on merits by the learned Appellate Court. Instead, the

matter was remanded in a summary and mechanical manner, which

has caused serious prejudice to the plaintiffs. Learned appellate

Court failed to appreciate the documentary and clinching evidence

adduced by the plaintiffs and passed the impugned judgment

without going into the merits of the case. In support of his

contention, learned counsel would place reliance upon the decision

rendered by the Supreme Court in the matter of Municipal

Corporation, Hyderabad Vs. Sunder Singh reported in (2008) 8

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SCC 485 and Sirajudheen Vs. Zeenath & Ors reported in (2024)

17 SCC 250.

8.(A) On the other hand, learned counsel for the

respondent/defendant submits that upon perusal of the order of the

Appellate Court, will make it clear that the appellate Court after

examining the entire documents has taken an appropriate decision

to take those documents on record as additional evidence. Learned

counsel submits that as regards the challenge to the order allowing

the application under Order XLI Rule 27 of the CPC, it is

submitted that the principal grievance of the plaintiffs appears to

be that, upon allowing the said application, the learned First

Appellate Court ought to have itself recorded the additional

evidence and decided the matter finally. In this connection, it is

submitted that once an application under Order XLI Rule 27 of the

CPC is allowed, Order XLI Rule 28 thereof vests discretion in the

First Appellate Court either to take such evidence itself or to direct

the subordinate court to take the evidence and return the same. The

choice between these two courses is entirely within the judicial

discretion of the Appellate Court. Accordingly, the course adopted

by the learned First Appellate Court cannot be said to be illegal or

erroneous merely on the ground that it chose to remit the matter

instead of recording the evidence itself. In support of his

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contention, he placed reliance upon the decision rendered by the

Supreme Court in the matter of J. Balaji Singh Vs. Diwakar Cole

& Ors reported in 2017 (14) SCC 207.

(B) Learned counsel would further submit that the learned 1

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Appellate Court has rightly held that the plaint in question was

suffering from non-joinder of party as the plaintiff has failed to

implead Sumitra and Kamla as necessary party. Once there is a

direction to implead Sumitra and Kamla, the First Appellate Court

rightly remanded the suit for fresh decision after impleadment of

Sumitra and Kamla.

9.I have heard learned counsel for the parties, perused the material

available on record.

10.By the impugned judgment, the learned First Appellate Court

allowed the application under Order XLI Rule 27 of the CPC and

remanded the matter to the learned Trial Court with a direction to

hear the matter afresh after impleading legal representatives of

Laxmi Bai and after affording due opportunity of hearing to all the

parties on the certified copies of documents filed by the defendant.

11.In the application under Order XLI Rule 27 of the CPC, the

defendant has stated that he is a farmer and was not well educated.

It is also stated he was not advised by the previous counsel to

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produce the documents before the learned trial Court. According

to the defendant, he was under the belief that the matter relatinIn

the application under Order XLI Rule 27 of the CPC, the

defendant has stated that he is a farmer and was not well educated.

It is also stated he was not advised by the previous counsel to

produce the documents before the learned trial Court. According

to the defendant, he was under the belief that the matter relating to

the disputed land was pending before the High Court, and

therefore the information could not be provided to the trial Court.

12.As far as non-joinder of necessary parties is concerned, the

defendant has stated that the plaintiffs instituted a suit against the

defendant stating that the suit property is joint family property, and

sought declaration of their title over 1/2 share in the suit land,

partition, and permanent injunction. Defendant Ashwani Kumar

Sahu, submitted an affidavit under Order 18 Rule 4 of the CPC

stating therein that Sumitra, Kamla, Bholaram (father of plaintiffs

No.1 to 4 and husband of plaintiff No.5), and Ashwani (defendant

No.1) are the children of Laxmi Bai, who is the daughter of

Paiserneen Bai. Though the legal heirs of deceased Bholaram were

shown as the plaintiffs, however, sisters of Bholaram and Ashwani

Kumar namely; Sumitra and Kamla have not been impleaded as

necessary parties in the suit.

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13.In order to effectively adjudicate upon all the questions involved in

the dispute, necessary parties would be added. In the present case

as well, the learned Trial Court did not properly frame an issue

regarding non-joinder of necessary parties, and without affording

an opportunity of hearing to such necessary parties, decreed the

suit, which is not in accordance with law.

14.The first and foremost reason for remand of the case by the learned

first appellate Court was that the necessary parties in the suit were

not joined in the suit. At this juncture, it would be apt to quote

Section 99 of the CPC for ready reference, which reads thus :

99. No decree to be reversed or modified for

error or irregularity not affecting merits or

jurisdiction: No decree shall be reversed or

substantially varied, nor shall any case be remanded, in

appeal on account of any misjoinder [or non-joinder] of

parties or causes of action or any error, defect or

irregularity in any proceedings in the suit, not affecting

the merits of the case or the jurisdiction of the Court:

[Provided that nothing in this section shall apply

to non-joinder of a necessary party.]

15.Bare perusal of the aforesaid provision, it is crystal clear that

proviso to Section 99 of the CPC would squarely applicable to the

facts of the present case as it is a matter of non-joinder of

necessary parties namely; Kamla Bai & Sumitra Bai, who are the

legal heirs of Laxmi Bai.

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16.As far as remanding the case after allowing the application under

Order XLI Rule 27 of the CPC is concerned, under this provision

after allowing the application either the appellate court on its own

can take evidence or remand the matter back to the trial court for

its fresh adjudication. In the present case when the first appellate

court was remanding the case on account of non-joinder of

necessary parties and it thought fit that the case be remanded back

to the trial court for taking evidence on the documents which have

been allowed through application under Order XLI Rule 27 of the

C.P.C. Thus, is manifest that there is no apparent error on the part

of the learned first appellate Court.

17.It is the trite law that once the appellate Court decides to remand

the matter, it is not required for it to adjudicate on merits involved

in dispute. In fact, discussion and finding on issues involved in

matter, after the appellate Court coming to conclusion that the

matter needed to be remanded, is uncalled for.

18.The Supreme Court in the matter of J. Balaji Singh (supra) held

thus at paras 15 & 16 :

“15. Now coming to the facts of the case, we are of

the considered opinion that once the first appellate court

allowed the application under Order XLI Rule 27 of the

Code and took on record the additional evidence, it rightly

set aside the judgment/decree of the trial court giving

liberty to the parties to lead additional evidence in support

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of their case which, in turn, enabled the trial court to

decide the civil suit afresh on merits in the light of the

entire evidence. The first appellate court was, therefore,

justified in taking recourse to powers conferred on the

appellate court under Order XLI Rule 23A for remanding

the case to the trial court. We find no fault in exercise of

such power by the first appellate court.

16…...The reason is that once the first appellate

Court formed an opinion to remand the case, it was

required to give reasons in support of the remand order as

to why the remand is called for in the case. Indeed, the

remand was made only to enable the trial court to decide

the case on merits. Therefore, there was no need to

discuss much a less record findings on several issues on

merits. It was totally uncalled for.”

19.In the present matter, while remanding the matter the learned first

appellate Court has not expressed its opinion on the merits of the

matter. It is necessary to mention here that the documents which

were filed along with the application under Order XLI Rule 27 of

the CPC appear to be certified copies of the judgments of the Civil

Court passed earlier and the order sheets of some of the pending

litigation and appeals. The learned first appellate Court after

considering all the aspects of the matter has rightly allowed the

application under Order XLI Rule 27 of the CPC.

20.By placing reliance upon the case laws rendered by the Supreme

Court in the matters of Sunder Singh (supra) and Sirajudheen

(supra), the plaintiffs would submit that the reversal judgment and

remand under Rule 23 of the Order XLI of the CPC has to be

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based on cogent reasons and for that matter, adverting to and

dealing with the reasons. In the present case, the learned First

Appellate Court while dealing with the appeal, assigned the

sufficient reasons why the remand is necessary and by observing

that the suit was suffering from non-joinder parties and at the same

time allowed the application under Order XLI Rule 27 of CPC by

allowing some documents which are certified copies of the earlier

proceedings between the parties. Thus, it cannot be said that the

reversal judgment as well as the remand for fresh trial has been

passed without assigning sufficient and cogent reasons. Under

these circumstances, the plaintiffs cannot get any advantage on the

basis of the aforesaid decision.

21.In view of the foregoing discussion, it is held that the appellate

Court has rightly remanded the matter to the trial Court, which

does not call for any interference. Accordingly, the second appeal

is dismissed, and the judgment impugned passed by the appellate

Court is hereby affirmed.

SD/-

(Bibhu Datta Guru)

Judge

Gowri/

Amardeep

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Headnote

Once the First Appellate Court formed an opinion

to remand the case to the trial Court by assigning

cogent reasons, there was no need to record

findings on several issues on merits.

एकबार जबप्रथम अपीलीय न्यायालयनेठोसकारणबताकरकेस

कोट्रायलकोर्टमेंवापसभेजनेकीरायबनाली

,

तोमेरिटके

आधारपर कईमुद्दोंपरनतीजेरिकॉर्डकरनेकीकोई ज़रूरतनहीं

थी

।