- (1.) Heard the learned counsel for the appellant. None has put in appearance on behalf of the respondent, despite service was found sufficient by this Court by means of the order dated 26.09.2019.
(2.) The instant appeal has been preferred under Order 43 Rule 1 (u) C.P.C. being aggrieved against the judgment of remand dated 05.02.1991 passed in Civil Appeal No. 279 of 1984 by the Vth Additional District Judge, Faizabad whereby it set aside the judgment and decree dated 15.10.1984 passed in O.S. No. 126 of 1984 requiring for a de-novo trial permitting the parties to amend their pleadings as well as to lead evidence if they so desire.
(3.) In order to appreciate the contention raised by the learned counsel for the appellant, the fact giving rise to the aforesaid appeal may be noticed first:- The plaintiff Smt. Urmila Devi/the appellant herein had instituted a suit seeking cancellation of the sale deed dated 18.06.1980 executed by Sri Shyam Sunder in favour of Sri Shyam Ghar, Dakhibal and Ramnath who were the defendants no. 1 and 2 to 4 respectively. The prime contention of Smt. Urmila Devi was that the property in question initially belonged to one Sri Bhagwan Dutt. After the death of Sri Bhagwan Dutt the property was recorded in the name of Sri Shyam Sunder and Sri Shyam Dhar. Both the defendants nos. 1 and 2 were real brothers, however, they were staying separately and also did not have a common mess. Unfortunately, Raja Ram who is the son of Sri Shyam Dhar expired leaving behind Smt. Urmila Devi, the plaintiff as his widow. Certain allegations regarding malafidies and fickle character of Shyam Dhar was alleged by Smt. Urmila Devi. It was further stated that after the death of her husband Sri Raja Ram she was entitled to be maintained and had a right in the property in question, however, her father-in-law namely Sri Shyam Dhar in order to defeat the rights of the plaintiff had executed a sale deed in favour of defendant nos. 3 and 4 namely Digbhal and Ram Nath and as such for the reasons contained in paragraph 14 of the plaint in suit, the suit seeking cancellation of the sale deed was instituted on 31.08.1981. The primary defence taken by the defendants was that the plaintiff did not have a right to institute the suit, inasmuch as, as she was not a creditor. Moreover, she was only claiming her rights of maintenance for which the ingredients as set out in Section 19 of Hindu Adoption and Maintenance Act were not satisfied. Apart from the fact that the plea that the sale deed was executed for non-payment of sale consideration, was not open to her since the executant of the sale deed had not alleged such facts in her lifetime. The suit came to be contested and the Trial Court framed one, all encompassing, issue to the effect whether in light of the grounds contained in paragraph 14 of the plaint, the said sale deed dated 18.06.1980 is liable to be cancelled.;