Raj Kumar Mahajan, J. - (1.) THIS is First Appeal From Order against the judgment and decree passed by Shri C.L. Anand, IIIrd Additional District Judge, Gorakhpur dated 10.9.1982 by virtue of which learned appellate court allowed the appeal and set aside the judgment and decree passed by Shri Surendra Vikram Singh, Munsif -2, Gorakhpur except finding on issue Nos. 1 and 2. Issue Nos. 1 and 2 were regarding benami nature of sale alleged to have been executed by one Habibullah father of the plaintiff in favour of his wife Smt. Qamrulnissa. It was held that Smt. Qamrulnissa was the owner. It appears that the plaintiff -appellant Mohd. Rafiq has filed a suit for partition claiming 3/4th share in the property, on the allegation that the sale deed in favour of Smt. Qamrulnissa was benami and Habibullah was the real owner. The trial court held that it was not benami, Smt. Qamrulnissa was the owner. After the death of husband Habibullah she inherited 1/4th share. Admittedly vide gift dated 18.2.1965, Habibullah gifted 1/4th share to the plaintiff. It was also admitted in the gift deed executed that sale deed in favour of Smt. Qamrulnissa was not benami and she was real owner under the sale. The suit of the plaintiff was decreed by the trial court to the extent of 1/4th share. The plaintiff appellant filed an appeal and challenged the benami order of the sale deed. The plaintiff also claimed mutation of his share after the death of Nihal who was son of Qamrulnissa. Details facts were not pleaded. It appears that the learned appellate court thus remanded the matter to the trial court directing the plaintiff to amend the plaint and if amendment is made there would be augmentation of the plaintiff share which would be considered by the trial court. It is also admitted fact that Smt. Ashkari had made an application for impleadment before the appellate court. The appellate court held that she is wife of Habibullah and she is necessary party and remanded the matter for adjudication after impleading her. Unfortunately Smt. Ashkari during the pendency of appeal had died and the matter regarding his share could not be decided.
(2.) SHRI V.B. Khare, learned counsel for the appellant submitted that the trial court has given a finding in favour of the appellant regarding his share of 1/4th. In the appeal it framed two additional issues - -issue Nos. 10 and 11 and remanded the case to the trial court for recording the findings. Thereafter the appellate court remanded the matter and the order of the trial court has been challenged regarding amendment of the plaint and remitting of the case as a whole. The learned counsel for the appellant submits that the order confirming the finding of issue Nos. 1 and 2 are illegal i.e. the transaction was not benami and holding Qamrulnissa owner. He further submits that the remand order under Order XLI Rules 23 and 23 -A is not valid. Rules 23 and 23 -A are quoted with an advantage: - - 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, with 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 to all just exceptions, be evidence during the trial after remand. 23 -A. 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. In my view in this case the appellate court thought fit to remand the case in view of the Ashkari Begum w/o Habibullah alive and impleadment was necessary for the determination of share. Since she has died so the order has also died a natural death and it is futile to go into this aspect. It has been argued by the learned counsel for the respondent that since issues of benami sale deed was given a negative finding and it was held that Qamrulnissa was the owner but appellate court has given a finding otherwise and learned counsel for the appellant's pleas that suit be decided on the basis of pleadings and the appellate court findings be kept intact. He has further submitted that the order of remand cannot fill up the lacuna. He has further pointed out the provisions of Section 107 of CPC which deals with powers of appellate court. Language of Section 107 of C.P.C. is quoted with an advantage: - - 107 Powers of Appellate Court: - -(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power - - (a) to determine a case finally, (b) to remand a case, (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
(3.) IT was open to Ashkari Begum again had she been alive to take all the pleas available i.e. regarding benami transaction and other pleas. The appellate court should not kept the finding intact on a benami transaction and reserved them after determination of the pleas taken by Ashkari Begum had she been alive. It would not be equitable and in the interest of justice now to decide the case by this court on benami transaction etc. The effected party will lose right of statutory appeal. I, therefore, order that the finding be given by the appellate court again on the issues involved after hearing the parties. There can be no other equitable order in the facts and circumstances of the case. I, therefore, accept the appeal in the light of above observation and modify the decrees of the appellate court and the appellate court to decide the issues involved within two months from the date of receipt of the record.;