1. This appeal has been filed by the defendant under the provisions of Order 43 Rule 1(u) of the Code of Civil Procedure against the order of remand dated 27.02.2013 passed by the First Appellate Court in Civil Appeal No. 23A/2011.

Facts of the case, in short, are as under :

2. The plaintiffs who are the wife and sons of Mayaram had filed a suit for declaration and permanent injunction with respect to the agricultural land situated in Patwari Halka No. 24 bearing survey No. 370/1 admeasuring 2.04 hectare of village Jalwa, Tehsil Ghatia, District Ujjain. The case of the plaintiffs is that property in dispute originally belonged to Late Siddhaji who got this property from his ancestors. The husband of plaintiff No.1 and father of plaintiffs No. 2 and 3 - Mayaram is the son of Late Sidhhaji. Mayaram solemnized marriage with Sajju Bai. As there was no issue from Sajju Bai, he solemnized second marriage with plaintiff No. 1- Sitabai. After second marriage of Mayaram, both the wives i.e. Sajju Bai and Sita Bai gave birth to four and two children, respectively. The plaintiffs (respondents No. 1 to 3 herein) stated in their plaint that there was a total of 8.25 hectare agricultural land of four different survey numbers in the name of Late Sidhhaji. Apart from this, in village Jalwa there is one residential dwelling of plaintiffs and defendant No. 1 and 2. In the north part of the said house plaintiffs were residing and the first wife was residing with defendant No.1. In view of the fact that after second marriage both the wives gave birth to children, the father of Mayaram i.e. Late Sidhhaji executed a family partition in which land of survey No. 370/1 admeasuring 2.04 hectare i.e. the suit property was given to respondents No. 1 to 3/plaintiffs, possession whereof was also given and rest of the agricultural land was given in the share of defendant No. 1 Mayaram and his first wife along with their children.

3. It was also stated in the plaint that in the year of 2003, taking advantage old age of Late Sidhhaji, respondent No. 1 got an agreement to sale executed by him in favour of one Tahir Hussain and in view of the same, an effort was made to dispossess plaintiffs because of which the suit for permanent injunction was filed. However, as it was a dispute amongst the members of the family, the matter was resolved by settlement under which the deed of partition was executed between Late Sidhhaji and plaintiff No.1. The defendants No. 2 and 3 executed a consent deed for the aforesaid partition. As the matter was settled amongst the members of the family, the aforesaid suit was not pressed, thus the same was dismissed for want of prosecution and since then, the plaintiffs were in possession of the aforesaid suit property.

4. Subsequent to this, the defendant No. 1 discreetly got his name mutated for the suit property in revenue records and tried to dispossess the plaintiffs by alienating property to third party and under these circumstances the instant suit came to be filed before the trial Court which came to be registered as Civil Suit No. 28A/2009.

5. The trial Court after considering evidence, recorded a finding in paragraph 11 that if for the sake of arguments it is accepted that the deed of partition (Exh.P/1) was executed between Late Sidhhaji and plaintiff No. 1 Sita Bai, still the burden was on the plaintiff to prove the execution of the same. However, the same was not proved by leading evidence of any of the witnesses in absence of which it cannot be held that the plaintiffs got the suit property in the partition. Apart from this, in paragraph 10 of the judgment dated 20.10.2011, the learned trial Court recorded a finding that the Exh. P/3 and P/4 are the revenue records i.e. Khasra Panchshala a n d Kishtbandi Khatoni of the year 2001-02 which was not prepared in accordance with the provisions of Section 176 of the Evidence Act hence, the concerned Patwari who issued the same was required to be examined for proving the same. As he was not examined, thus those documents are not admissible in evidence. The learned trial Court further recorded a finding that even the deed of partition (Exh. P/1) cannot be admitted in evidence for proving possession of the plaintiffs for the reason that in view of the provisions of Section 35 of the Indian Stamp Act, 1899 and Section 17 of the Registration Act, the same cannot be taken into evidence as the document is insufficiently stamped and unregistered.

6. In view of the aforesaid findings of the learned trial Court, the sheet anchor of the suit i.e. the deed of partition was not read into evidence and consequently, the suit was dismissed.

7. The respondents No. 1 to 3 / plaintiffs being aggrieved by the judgment and decree dated 20.10.2011 preferred a Civil Appeal No. 23A/2011 raising various grounds particularly the ground that Exh. P/1 was not a deed of partition but it was an acknowledgement of partition which was earlier carried out and in this view of the matter, the same was not required to be registered. It was further argued that Exh. P/2 is also a document consenting on earlier partitions. Thus, this document was also not required to be registered.

8. The first appellate Court after considering the rival submissions recorded a finding in paragraph 14 that at the time of recording of evidence of the witness Ratanlal (PW-1), a note was put that objections regarding permission to exhibit the document in evidence shall be taken at the time of decision in the case. The first appellate Court while considering this went on to hold that when this objection was specifically taken then instead of considering the admissibility of the document at the time of final judgment and decree, a separate order should have been passed deciding the objection so as to provide opportunity to the plaintiffs to get the document impounded by paying necessary stamp duty and penalty and for getting it registered in accordance with law, in absence of which the trial Court has seriously prejudiced the case of the plaintiffs. It was further held by the appellate Court that the procedure adopted by the trial Court was not in accordance with law and thus in terms of directions given in paragraph 18 of the impugned order, the matter was remanded back for passing order on admissibility of the deed of partition (Exh. P/1) and the consent deed (Exh.P/2) with respect to partition thereby deciding the issue of requirement of payment of stamp duty and penalty as well as the registration of the document and after giving proper opportunity for remedial steps, the matter be decided on merits afresh.

9. The learned counsel for the appellant submits that this approach adopted by the learned first appellate Court is not correct. He submits that Exh.P/1 is a partition deed which was executed between Late Siddhaji and plaintiff No. 1 Sitabai. It is an indisputable fact that Siddhaji has died during pendency of the civil suit itself. As such the document at this stage cannot be registered. He further submits that the suit land was an ancestral property. The trial Court while considering the claim of the plaintiffs has recorded a clear finding in paragraph 11 that the plaintiffs failed to proved the execution of deed of partition (Exh. P/1) as they did not lead evidence for the same. He further submits that after this finding, the document Exh. P/1 has lost its sheen and the first appellate Court could not have remanded the matter back for filling the lacuna in the case of the plaintiffs. He also submits that in view of the availability of the evidence on record, the first appellate Court should have decided the matter on merit instead of remanding the same back for fresh adjudication before the trial Court as no retrial has been directed and no evidence is required to be recorded afresh. Lastly, he submits that this is settled law that on the basis of an unregistered document, no one can claim title on an immovable property.

10. In support of his submission, learned counsel for the appellant places reliance on the order of Hon'ble Apex Court in case of Shakeel Ahmed vs. Syed Akhlaq Hussain in Civil Appeal no. 1598 of 2023. He also places reliance on an order passed by a Coordinate Bench of this Court in case of Ramjan & Ors. vs. Mohammed Bashir Patel & Anr. in Writ Petition No. 8438 of 2016 decided on 08.12.2016 and an order passed by the High Court of Judicature at Bombay in case of Rameshlal Gurdasmal Adwani vs. Gajanan Dadoba Pawar & Ors. in Appeal from Order No. 874 of 2016.

11. Per contra, learned counsel for the respondents No. 1 to 3 / plaintiffs supports the findings of the award and point out that the learned trial Court erred in considering that the Exh. P/1 was a document which caused the partition, in fact Exh. P/1 was a deed acknowledging partition. Thus, it was not required to be registered. He further submits that in paragraph 8, the first appellate Court has clearly recorded the contention of respondents No. 1 to 3 in as much as the documentary and oral evidence led by the plaintiffs were not taken into account by the trial Court. If the trial Court was of the view that Exh. P/1 was insufficiently stamped, then it was required to send the same to the Collector for impounding and in the same manner, Exh. P/3 and P/4 was not considered in their proper perspective. It has also been considered by the first appellate Court that the plaintiff No. 1 is daughter-in-law of Late Siddhaji and plaintiffs No. 2 and 3 are the grandsons. As such, the ancestral property of Late Siddhaji is an ancestral property for the purposes of plaintiffs No. 2 and 3. This fact has not been considered by the trial Court while passing the impugned judgment and decree. He submits that based on these arguments, the findings have been recorded by the first appellate Court in paragraph 13 in as much as two daughters of Mayaram from his first wife i.e. defendant No. 2 - Jani Bai and defendant No. 3 - Kamala Bai have consented for family partition. This important aspect has completely been ignored by the trial Court. Based on these findings and considering that if required, Exh. P/1 and P/2 can be impounded and registered, the matter was remanded back to the trial Court.

12. In support of his contentions, learned counsel for the respondents has relied upon the judgment passed by this Court in case of Vipin Kumar & Ors.vs. Sarojani reported in 2013 (1) MPLJ 480 ; Arvind Kumar Jaiswal vs. Devendra Prasad Jaiswal Varun reported in 2023 SCC OnLine SC 146 , Shivkumar & Ors. vs. Sharanabasappa & Ors. reported in (2021) 11 SCC 277 and; S.Kaladevi vs. V.R.Somasundaram & Ors. reported in (2010) SCC Heard the learned counsel for the parties. Perused the record.

13. From perusal of the findings recorded by the first appellate Court, it would come to the fore that the only purpose for which the remand has been directed is that the deed of partition (Exh. P/1 ) and the consent deed (Exh. P/2), if required can be ordered to be impounded and registered in accordance with law and after that fresh order should be passed. In the considered view of this Court, the approach as adopted by the first appellate Court is not correct. It has not been recorded by the first appellate Court that there was insufficiency of evidence or that any further evidence is required to be recorded. On the contrary, the finding as recorded by the first appellate court is that the material which was there before the Court has not been considered properly.

14. The mandate of Order 41 Rule 23A of the CPC and related provisions upto Rule 25 is to consider whether in the facts of the given case, retrial is considered necessary. The appellate Court may reverse the decree and remand the matter to the trial Court or where evidence on record is sufficient, the appellate Court in terms of Order 41 Rule 24 can pronounce judgment after resettling the issue after finally determining the suit. Rule 25 of the said order would provide that where the Court from whose decree the appeal is preferred, has omitted to frame or try an issue to determine any question of fact which appears to the appellate Court essential to the right decision of the suit, it may frame issues and refer the same for trial to the Court from whose decree the appeal is preferred.

15. In the present case, there is complete absence of ingredients required for remand of the matter under Rule 23A or Rule 25, in fact the findings of the first appellate Court would show that what impressed upon it, is the absence of proper consideration of evidence and not insufficiency of evidence or absence of framing any issue which was required to be framed. This Court has taken note of the finding recorded by the first appellate Court in paragraph 14 in as much as that the trial court even after recording objection on Exh. P/1, did not decide the same and put a note that the same shall be taken into consideration at the time of final argument. However, this by itself would not entail remand of the case. The first appellate Court can itself consider this requirement and can get the document impounded by following the due procedure if found necessary. The same goes with the requirement of registration, although it will also required to be seen that whether this document can be registered or not at this stage. In any case, remand of the entire case was not necessary.

16. There is one more significant aspect of the matter in as much as the respondents in the first appellate court have asserted that the Exh. P/1 and P/2 are not the documents of partition but they are documents acknowledging the earlier partition. Even if this contention of the respondents is accepted then also the matter does not require remand but a decision on merits by the first appellate court based on evidence on record.

17. As regards the reliance placed by the learned counsel for the appellant on the case of Shakeel Ahmed (supra) , the same is not applicable in the present case for the simple reason that in the said case, the suit was filed on the basis of Power of Attorney, an agreement to sell, an affidavit and a will executed in favour of the respondent. The Hon'ble Apex Court considered them and observed that all these documents would not confer the title as all of them were unregistered and the executor of the will was still alive. Thus, the ratio as laid down by the Hon'ble Apex Court is not applicable in the present case.

18. As regards the order passed by the Coordinate Bench of this Court in case of Ramjan (supra), the same is also not applicable because in the said writ petition, challenge was to an order passed by the trial Court with respect to a case in which two agreements of sale were under consideration and the provisions of impounding under Section 33 of the Indian Stamp Act were under consideration.

19. In the present case, the issue is whether the deed of partition is required to be properly stamped and also required to be registered (if permissible under the law) or being an acknowledgement of earlier oral partition / family settlement, the same can be read into evidence.

20. As regards the judgment in the case of Rameshlal Gurdasmal Adwani (supra), this Court is in agreement with the ratio as laid down in the said case.

21. As regards the reliance placed by learned counsel for respondents No. 2 to 3, although he tried to impress upon the Court that in view of the judgments relied upon by him the remand is proper. However, a close scrutiny of the judgments would show that the law as laid down in these judgments would go against respondents No. 1 to 3. In fact, the Hon'ble Apex Court in case of Shivkumar (supra), in no uncertain terms has held that only in those cases where retrial is considered necessary because of any particular reason and more particularly for the reason that adequate opportunity of leading sufficient evidence to a party is requisite, stands at entirely different footings than the cases where evidence has already been adduced and decision is to be rendered on appreciation of evidence. In the present case, the first part i.e. the requirement of sufficient evidence by providing adequate opportunity is not applicable. This in fact was not at all the case of respondents No. 1 to 3 before the first appellate Court. In fact their case was that evidence was not considered in its proper perspective. Hence, the second limb of the observation i.e. appreciation of evidence which is already adduced is required to be done properly, is applicable. In the present case, the entire evidence is on record. It is for the first appellate Court to consider the same on its own merits and then pass appropriate order. Even in the case of Arvind Kumar Jaiswal (supra) in paragraph 3, the Hon'ble Apex Court clearly observed that remand prolongs and delays a litigation. Thus, it should not be resorted until and unless appellate Court finds that a retrial is required or the evidence on record is not sufficient to dispose of the matter for reasons like lack of opportunity for leading evidence to a party. In the present case, this is not even the case of respondents No. 1 to 3 that they have not been given adequate opportunity to lead evidence. On the contrary, their case is that there is incorrect appreciation of Exh. P/1 and P/2 as well as the oral evidence lead by them. Thus, it was the duty of the appellate Court to consider the merits of the case and decide the same on appreciation of evidence.

22. It is hereby made clear that even at the first appellate stage if the Court is of the view that a document is required to be impounded, then the same can always be done. Considering the specific stand taken by the respondents No. 1 to 3 / plaintiffs that Exh. P/1 is an acknowledgement of partition and not a document effecting partition, a requirement of its registration and stamping is to be considered on its own merits by the first appellate Court independently. Same goes with Exh.P/2.

23. In view of the above analysis, this Court finds force in the submissions of the learned counsel for the appellant. Resultantly, the appeal succeeds and is hereby allowed. The impugned judgment dated 27.02.2013 (Annexure A/4) is hereby set aside and the matter is remanded back to the first appellate Court to decide the same on merits after due consideration of the evidence.

With the aforesaid, the appeal stands disposed of.