Bela M. Trivedi, J. - (1.) WITH the consent of the learned counsels for the parties, the appeal is finally decided at the admission stage. The present appeal filed under Order XLIII Rule 1 of CPC arises out of the judgment & order dated 13.01.2011 passed by the Additional District Judge No. 2, Bundi (hereinafter referred to as "the appellate court") in Civil Regular Appeal No. 27/2010, whereby the appellate court has set -aside the judgment & decree dated 21.07.2010 passed by the Civil Judge (J.D.) Lakheri, District Bundi (hereinafter referred to as "the trial court") in Civil Suit No. 4/2002, and has remanded the matter to the trial court for deciding the suit afresh after impleading the third party Shri Peeru Lal as the party defendant in the suit.
(2.) THE short facts giving rise to the present appeal are that the appellant -plaintiff had filed the suit seeking specific performance of the agreement dated 06.07.1994 executed by the original -defendant Shri Babu Lal. The original -defendant Shri Babu Lal had resisted the suit by filing the written statement. The said defendant Babu Lal expired during the pendency of the suit and his legal heirs were brought on record. The trial court after framing the issues from pleadings of the parties and after considering the evidence on record, decreed the suit of the appellant -plaintiff vide the judgment & decree dated 21.07.2010. Being aggrieved by the said decree, the respondents -defendants had filed the appeal before the appellate court. The appellate court without raising points of determination or without recording any findings on the issues framed by the trial court, held that the Shri Peeru Lal, brother of the original -defendant was the joint owner of the land in question, and therefore, he was the necessary party in the suit. The appellate court, therefore, set -aside the judgment & decree passed by the trial court and remanded the case to the trial court for deciding afresh after impleading the said Peeru Lal as the party defendant in the suit. It has been sought to be submitted by the learned senior counsel Mr. Kamlakar Sharma, for the appellant that the appellate court could not have remanded the case to the trial court under Order XLI Rule 23 -A, without reversing the decree and without recording any finding on the issues/points involved in the appeal. Mr. Sharma also relied upon the decisions of the Apex Court in case of P.C. Varghese V. Devaki Amma Balambika Devi and Others, : AIR 2006 SC 145 and of this Court in case of Dhara Singh v. Fateh Singh & Ors., : AIR 2009 Raj. 132, to submit that the decree for specific performance cannot be denied to the plaintiff purchaser, merely because the property was not partitioned. However, the learned senior counsel Mr. N.K. Maloo, for the respondents, submitted that the appellate court having rightly held that the land in question being jointly owned by the original -defendant Babu Lal and his brother Peeru Lal, the suit could not have been decided without impleading Peeru Lal as the party -defendant in the suit. He submitted that as per the settled legal position, no decree for specific performance in respect of joint family property could be passed without impleading the coparcener.
(3.) AT the outset, it is required to be noted that the appellant had earlier filed the second appeal being No. 109/2011, challenging the impugned judgment passed by the appellate court, however the objection having been taken by the learned counsel for the respondents regarding the maintainability of the second appeal, the appellant was permitted to convert the said second appeal into Civil Misc. Appeal as per the order dated 06.07.2012. Under the circumstances this appeal was treated as having been filed under Order XLIII Rule 1. It is also required to be noted that suit of the appellant -plaintiff was decreed by the trial court otherwise than on the preliminary issue, and therefore, the impugned order was passed by the appellate court remanding the case to the trial court under Order XLI Rule 23 -A of CPC.;