SHIVAJI GOPAL KURHADEversusRAMCHANDRA GOPAL KURHADE AND OTHERS

                      Sumedh                                          18-asao-229-2024.doc


                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                   APPEAL FROM ORDER NO. 229 OF 2024
                                                      WITH
                                  INTERIM APPLICATION NO. 6796 OF 2024


                      Shivaji Gopal Kurhade                   ]
                      Age: 72, Occ- Agriculturalist           ]
                      Residing at H.No.1951, Kurhade Ali      ]
                      Aalndi Devachi Tal-Khed Dist- Pune      ]…Appellant
                                                             (Original Plaintiff)
                                 V/s.
                      1. Ramchandra Gopal Kurhade             ]
                      Age: 72, Occ- Agriculturalist           ]

                      2. Vilas Gopal Kurhade                  ]
                      Age: 62, Occ- Agriculturalist           ]

                      3. Yogendra Gopal Kurhade               ]
                      Age: 56, Occ- Agriculturalist           ]

                      4. Shankarrao Gopal Kurhade             ]
                      Age: 52, Occ- Agriculturalist           ]

                      5. Vimal Gopal Kurhade                  ]
                      Age: 85, Occ- Agriculturalist           ]

                      6. Sachin Ramchandra Kurhade            ]
                      Age: 38, Occ- Agriculturalist           ]

                      7. Amol Ramchandra Kurhade              ]
                      Age: 35, Occ- Agriculturalist           ]

                      8. Vishal Vilas Kurhade                 ]
                      Age: 33, Occ- Agriculturalist           ]

                      9. Viraj Vilas Kurhade                  ]
                      Age: 31, Occ- Agriculturalist           ]
         Digitally
         signed by
         SUMEDH
SUMEDH   NAMDEO
NAMDEO   SONAWANE
SONAWANE Date:
         2026.01.28
         18:15:43
         +0530
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10. Gopal Yogendra Kurhade                      ]
Age: 24, Occ- Agriculturalist                   ]

11. Chaitanya Shankarrao Kurhade                ]
Age: 22, Occ- Agriculturalist                   ]

All R/at- House No. 808/2,                  ]
Laxminarayan Building, Behind               ]
Santoshimata Temple Aalndi                  ]
Devachi Tal-Khed Dist- Pune                 ]…Respondents
                                         (Original Defendants)
              ______________________________________

Dr. Abhinav Chandrachud i/by Adv. Samay Pawar for Appellant.
Mr. J.D. Khairnar a/w. Adv. Vikas Shivarkar for Respondent No. 1,
6 and 7.
Mr. Laxmikant N. Shrimangale    a/w.     Adv.    Ambadas        N.
Shrimangale, Adv. Vithal Shrimangale for Respondent No. 2, 3, 8 to
10.
         _____________________________________________

                       CORAM                 : KAMAL KHATA, J.
                     RESERVED ON            : 6TH JANUARY 2026.
                    PRONOUNCED ON          : 28TH JANUARY 2026.

JUDGMENT:

1)   By    the   present   Appeal,   the    Appellant/Orig.   Plaintiff

challenges the order dated 1st February 2024 ("impugned order"),

passed by the Ad-hoc District Judge-1, Khed- Rajgurunagar,

District-Pune ("the Appellate Court") in Regular Civil Appeal No.

19 of 2020 arising out of Special Civil Suit No. 211 of 2014 ("Suit").

By the impugned order, the Appellate Court set aside the partial

Decree for partition dated 2nd January 2020 passed by the Joint

Civil Judge, Senior Division, Khed- Rajgurunagar, Dist.-Pune ("the

Trial Court"), partly in favour of the Plaintiff and remanded the
Sumedh                                                18-asao-229-2024.doc


Suit to the Trial Court for fresh adjudication on re-framed issues.

2)   The    short   but   signiFcant   question    that   arises   for

consideration in the present Appeal is whether the Ld. Appellate

Court was justiFed in remanding the Suit for fresh adjudication on

re-framed issues, including an additional issue of limitation,

without considering the evidence already led by the parties on

record.


BRIEF FACTS

3)   The Appellant had instituted Special Civil Suit No. 211 of

2014 (originally Special Civil Suit No. 248 of 2012) seeking

partition and separate possession of ancestral and joint family

properties described in Schedules A to E, recovery of the Appellant

share in rental income from 2009 to 2012, and a decree of

permanent injunction. The Appellant claims a 1/6th share in the

joint family properties as the son of late Gopal Kurhade through

his Frst wife, whereas Respondent Nos. 1 to 4 are the sons of the

said deceased through Respondent No. 5, his second wife. The Suit

came to be Fled upon the Appellant acquiring knowledge that

Respondent Nos. 1 to 4 were attempting to alienate the suit

properties to his exclusion.

4)   The Respondents contested the Suit, inter alia, on the ground

of limitation, alleging an oral partition in 1980 during the lifetime

of the deceased, and further contended that the properties
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described in Schedules D and E were their self-acquired properties.

5)    The Trial Court, by judgement and decree dated 2nd January

2020, partly decreed the Suit by granting the Appellant 1/6

undivided share in the properties described in Schedules 'A to C'

only. The Trial Court further directed that for the purpose of

partition by metes and bounds and for delivery of possession, the

agricultural lands described in Schedule ‘C’ (of the Suit) be

referred to the District Collector under Section 54 of the Code of

Civil Procedure, 1908, (CPC), and that a Court Commissioner be

appointed for the partition of the properties described in Schedules

‘A’ and ‘B’.

6)    Being aggrieved by the said Order dated 2nd January 2020,

the Appellant preferred a Regular Civil Appeal No. 19 of 2020

before the Ld. Appellate Court. The Respondents, by Fling their

cross-objections, re-agitated their challenge to the partition decree

by contending that the properties were not ancestral and that the

Trial Court had failed to frame an issue in that regard. It was

further argued that since no speciFc issue on limitation had been

framed, the Respondents were deprived of an opportunity to lead

evidence.

7)    The Appellate Court by its order dated 1st February 2024

remanded the suit back to the Trial Court after framing additional

issues including an issue on limitation, for fresh adjudication.
Sumedh                                               18-asao-229-2024.doc


8)    It is under these circumstances that the present Appeal has

been preferred by the Original Plaintiff.


RIVAL SUBMISSIONS

9)    Dr. Chandrachud, the learned counsel for the Appellant,

submits that the Appellate Court committed a serious error in

ordering a remand of the entire case under Order XLI Rule 23A of

the of the CPC. He submits that if the Appellate Court was of the

view that a fresh issue of limitation was required to be framed, the

same ought to have been decided by the Appellate Court itself, or at

the highest, the matter ought to have been remanded only for the

limited purpose of adjudication of the issue of limitation under

Order XLI Rule 25 CPC. The mere failure of the Trial Court to

frame an issue of limitation could not justify setting aside the

entire decree and directing a de novo trial.

10)   The Appellant, placing reliance on Uttara Thool v. Praveel

Thool1; Kunju Kesavan v. M.M. Philip2; Sayeda Akhtar v. Abdul

Ahad3; and Nedunuri Kameswaramma v. Sampati Subba Rao 4,

contends that non-framing of a speciFc issue does not vitiate the

proceedings where the parties were fully conscious of the

controversy and have already led evidence thereon, and where no

prejudice is demonstrated to have been caused by such omission.


1(2014) 2 MhLJ 321
2 AIR 1964 SC 164
3 (2003) 7 SCC 52
4 AIR 1963 SC 884
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11)   Learned Counsel further submits that the Appellate Court

failed to apply the settled principle that remand is an exception

and not the rule. Reliance is placed on Zarif Ahmad v. Mohd.

Farooq5, wherein the Supreme Court held that remand ought to be

ordered only in exceptional cases, such as where the suit is

disposed of on a preliminary issue without recording evidence on

other issues. No such circumstance existed in the present case.

12)   It is also submitted that the Appellate Court overlooked the

statutory scheme under Order XLI Rule 25 of the CPC, which

empowers the appellate court to frame an additional issue and call

for Fndings thereon while retaining the appeal for Fnal disposal.

Reliance is placed on Corporation of Madras v. M. Parthasarathy6.

13)   Learned Counsel lastly submits that the Appellate Court

failed to consider the settled law governing limitation in partition

suits. Reliance is placed on Syed Shah Ghulam v. Syed Shah

Ahmed7, which recognizes that the cause of action in a partition

suit is perpetually recurring. Though a seemingly different view

was expressed in Krishna Pillai v. Padmanabha Pillai8, the

Appellate Court neither examined the recurring nature of the

cause of action nor reconciled the authorities before directing

remand, thereby rendering the impugned order vitiated for non-

application of mind.
5 (2015) 13 SCC 673
6 (2018) 9 SCC 445
7 (1971) 1 SCC 597
8 (2004) 12 SCC 754
Sumedh                                                18-asao-229-2024.doc


14)   On these grounds, it is submitted that the impugned order

deserves to be set aside and the Appeal from Order be remitted to

the Appellate Court for Adjudication on merits.

15)   Mr. Shrimangali, the learned counsel appearing on behalf of

the Respondents supports the impugned order. He submits that the

Suit properties mentioned in Schedules 'A to C' are ancestral

properties and that the name of the Appellant as well as the

Respondents are shown on 7/12 extract. He further submits that

the properties described in the Schedule 'D' were purchased in the

name of Defendant No.6, while those described in Schedule 'E' were

purchased in the names of Defendant No. 7 to 11

16)   Learned Counsel submits that the Defendants had duly

appeared before the Trial Court and contested the Suit. He submits

that an oral partition had already taken place between the

Appellant and the Respondents in the year 1980 during the

lifetime of the deceased Gopal Kurhade. Pursuant to the said oral

partition, the Appellant was allegedly put in possession of his

separate share and has been cultivating the same since 1980. The

Respondent have also developed their respective shares after oral

partition. It is therefore contended that both sides accepted and

acted upon the oral partition.

17)   On this basis, it is contended that the suit Fled by the

Appellant is clearly barred by limitation, as the cause of action, if
Sumedh                                                 18-asao-229-2024.doc


any, arose in 1980. The Respondents accordingly denied the

Appellant’s claim in its entirety and have prayed for dismissal of

the suit.

18)   The Respondents further contend that after Fling their

Written Statements and speciFcally objecting to the Suit on the

grounds of limitation, the Appellant amended the original plaint by

deleting paragraph no. 8, which according to them amounted to

suppression of material facts.

19)   Ld. Counsel further submits that the Appellant had earlier, in

the year 1988, Fled Regular Civil Suit No. 126 of 1988 seeking an

injunction against his father. The said suit was subsequently

withdrawn, and thereafter, no suit for partition was Fled until

2012. This prolonged inaction, according to the Respondents,

reinforces the plea of limitation.

20)   In conclusion, learned Counsel submits that the Appellate

Court has correctly identiFed the legal inFrmities and perversity in

the judgement of the Trial Court, and that the impugned order

warrants no interference.


REASONS & CONCLUSION

21)   I have heard the learned counsel appearing for the parties

and have carefully perused the record of the Appeal.

22)   Upon hearing the learned counsel and upon a careful perusal

of the record, it is evident that the Trial Court had framed several
Sumedh                                              18-asao-229-2024.doc


issues and adjudicated the Suit on merits after appreciating both

the oral and documentary evidence led by the parties.

23)   The impugned judgment of the Appellate Court does not

demonstrate that the Fndings recorded by the Trial Court were

perverse, unsupported by evidence, or otherwise unsustainable in

law. The Appellate Court has not undertaken any exercise to

examine the correctness of the conclusions reached by the Trial

Court on the issues already framed and decided.

24)   Instead, the Appellate Court has proceeded to remand the

entire Suit solely on the ground that a speciFc issue on limitation

had not been framed by the Trial Court.

25)   The Respondents had pleaded an oral partition of the year

1980 and sought dismissal of the Suit on the ground of limitation.

In such circumstances, the mere absence of a formally framed

issue on limitation could not, by itself, render the entire trial

vitiated. The Appellate Court was required to examine whether

any prejudice had in fact been caused to the Respondents and

whether the evidence on record was insufFcient to decide the issue

of limitation. No such Fnding has been recorded in the impugned

order.

26)   The power of remand under Order XLI Rule 23A of the CPC is

an exceptional power and cannot be exercised mechanically. A

wholesale remand is warranted only when the judgment of the
Sumedh                                               18-asao-229-2024.doc


Trial Court is shown to be wholly unsustainable or where the Suit

has been disposed of without recording evidence on material

issues.

27)   In the present case, the Trial Court had recorded evidence

and rendered Fndings on all issues framed before it. The Appellate

Court has failed to indicate as to how those Fndings were so

perverse or contrary to the record as to necessitate a complete

retrial.

28)   Even assuming the Appellate Court was of the view that an

issue on limitation ought to have been framed, the CPC provides

speciFc mechanisms to address such a situation. The Appellate

Court could have framed the issue and decided it itself on the basis

of the evidence already on record, or could have adopted the

limited course contemplated under Order XLI Rule 25 CPC.

29)   The impugned order does not rePect any consideration of

these statutory alternatives, nor does it disclose any reasons as to

why such courses were not adopted.

30)   In these circumstances, this Court is of the view that the

impugned order suffers from a clear non-application of mind. The

Appellate Court has failed to consider the evidence on record, has

not assessed the sustainability of the Trial Court’s Fndings, and

has not recorded any cogent reasons justifying a complete remand

for fresh adjudication on all issues. The approach adopted defeats
Sumedh                                                18-asao-229-2024.doc


the very purpose of the Appellate scrutiny and runs contrary to

the settled principle that remand is not to be ordered merely

because another view is possible.

31)   The scope and limits of the Appellate court’s power of

remand under Order XLI of the CPC have been authoritatively

explained by the Supreme Court in Corporation of Madras v. M.

Parthasarathy (supra). The Appellate court has two distinct

statutory courses available: (i) either to remand the entire matter

for retrial under Order XLI Rule 23A CPC, or (ii) to adopt the

narrower course under Order XLI Rule 25 CPC by framing speciFc

issues and calling for Fndings, while retaining the appeal.

32)   The choice between these alternatives must be guided by

necessity and proportionality, keeping in mind that a complete

remand is warranted only where the original trial is shown to be

fundamentally defective or where the Appellate court is genuinely

unable to decide the controversy on the existing record.

33)   The jurisprudence on non-framing of issues is equally well

settled. In Uttara Thool v. Praveen Thool (supra) , the Supreme

Court reiterated the mandate of Section 99 CPC that no decree

shall be reversed or substantially varied merely on account of any

procedural defect or irregularity unless prejudice is shown.

34)   The   record   demonstrates    that   the   Respondents     had

speciFcally pleaded limitation founded on the alleged oral
Sumedh                                                  18-asao-229-2024.doc


partition. The plea of limitation was therefore very much in issue,

notwithstanding the absence of a formally framed issue.

35)   Despite raising such a plea, the Respondents failed to lead

cogent evidence to establish a clear and unequivocal denial of the

Appellant’s rights, so as to attract the bar of limitation. In such

circumstances, no prejudice can be said to have been caused by the

omission to frame a speciFc issue.

36)   The Appellate Court, being the Fnal court of facts, was fully

empowered to reappreciate evidence and decide the controversy

on merits, or at the highest, to adopt a limited remand conFned to

the issue of limitation.

37)   Even on the substantive law of limitation in partition suits, a

nuanced analysis was required. In Syed Shah Ghulam v. Syed Shah

Ahmed (supra), the Supreme Court recognised that the cause of

action in a partition suit is perpetually recurring so long as the

joint status subsists and the property remains unpartitioned by

metes and bounds.

38)   As expounded by the Supreme Court in Corporation of

Madras v. M. Parthasarathy (supra), the Appellate court is not

powerless in situations where it Fnds that an issue requires

determination but the record is either silent or incomplete. In such

cases, the appellate court is well within its jurisdiction to adopt the

appropriate statutory course, either to decide the issue itself on
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the existing material or to frame the necessary issue and call for

Fndings from the Trial Court—rather than resorting to a wholesale

remand. In the absence of any evidence led by the Plaintiff and in

view of the Defendants’ failure to prove limitation despite

opportunity, the Appellate Court was fully empowered to take

appropriate steps within the framework of Order XLI, instead of

directing a de novo trial.

39)   In Zarif Ahmad (Dead) through legal representatives & Anr.

v Mohd Farooq (supra) Supreme Court reiterates the settled

principle that although Section 107 CPC confers power upon the

appellate court to remand a matter under Order XLI Rule 24 CPC

where the evidence on record is sufFcient. The Court underscores

that remand is not a healthy or routine practice, as it

unnecessarily prolongs litigation and compels parties to wait for a

Fnal adjudication which could otherwise be avoided. The power of

remand, therefore, is to be exercised sparingly and only in

exceptional circumstances, such as where the trial court has

disposed of the suit solely on a preliminary issue without recording

evidence or without deciding the remaining issues, thereby making

it impossible for the appellate court to Fnally adjudicate the

dispute.

40)   The Supreme Court in Sirajudheen v Zeenath (supra) has

held that the scope of remand under Order XL1 Rule 23 is very
Sumedh                                               18-asao-229-2024.doc


limited and a distinction must be borne in mind between diverse

powers of the Appellate Court to pass an order of remand. It has

been categorically held that an order of remand cannot be passed

mechanically or on the ipse dixit of the Court; it must be supported

by a Fnding that the decree is liable to be reversed and that a

retrial is truly necessary.

41)   Applying these settled principles, remand merely on the

technical ground that a speciFc issue of limitation was not framed,

without any perverse Fndings, would amount to an unwarranted

exercise of jurisdiction, particularly when Order XLI Rule 24 CPC

empowers the Ld. Appellate Court to Fnally decide the matter on

the existing record.

42)   In the present case, the parties were fully aware of the

controversy relating to limitation, have led evidence in support of

their respective stands, and no prejudice is demonstrated to have

been caused by the omission. A bare perusal of the issues re-

framed by the Appellate Court clearly reveals that the same

substantially overlap with and are comprehensively covered by the

broader issues already framed by the Trial Court. The Trial Court’s

issues were wide enough to encompass the rival pleadings and

controversies between the parties, and evidence in respect thereof

has already been duly recorded. Except for the speciFc issue

relating to limitation, no new or distinct controversy has been
Sumedh                                                  18-asao-229-2024.doc


introduced by the Appellate Court through the re-framing of

issues. In these circumstances, directing a fresh adjudication on all

such re-framed issues, despite the availability of complete and

recorded evidence, was wholly unwarranted and results in a

needless duplication of trial proceedings, and more seriously,

enables the parties to Fll lacunae in the evidence already led,

thereby, impermissibly altering the outcome of the suit.

43)     Accordingly, the impugned order dated 1 February 2024

cannot be sustained. The Appeal from Order deserves to be

allowed. The matter is required to be remanded back to the Ld.

Appellate Court for reconsideration afresh, with a direction to

decide the appeal on merits after appreciating the evidence

already on record and, if deemed necessary, to frame and

determine the issue of limitation in accordance with law, either by

itself or by adopting the limited course permissible under the Code,

instead of ordering a de novo trial.

44)     It is hereby clariFed that this Court has not delved into the

merits of the matter and that contentions of both parties are kept

open.

45)     In light of the above, the Appeal from Order is allowed.



                               :: ORDER ::

   1.        The Appeal from Order is allowed.
   2.        The order dated 1st February 2024 passed by the learned
Sumedh                                                    18-asao-229-2024.doc


              Ad-hoc District Judge-1, Khed–Rajgurunagar, District Pune
              in Regular Civil Appeal No. 19 of 2020, remanding the
              matter to the Trial Court, is quashed and set aside.
     3.       The Appeal from Order 229 of 2024 is remanded back to
              the First Appellate Court for fresh adjudication on merits,
              in accordance with law, after considering the entire
              evidence already on record.
     4.       The First Appellate Court shall decide the Appeal by
              exercising its powers under Order XLI Rules 24 and/or 25
              of the Code of Civil Procedure, as may be deemed
              appropriate.
     5.       The parties shall appear before the learned First Appellate
              Court on a date to be Fxed by that Court.
     6.       The Appeal from Order and Interim Application are
              disposed of accordingly. There shall be no order as to costs.
     7.       The parties shall appear before the First Appellate Court
              on 2nd February 2026.




                                                   (KAMAL KHATA, J)

Judgements Relied:

1.        Corporation of Madras v M. Parthasarthy(2018)9 SCC 445.
2.        Uttara Praveen Thool Vs. Praveen s/o Bhanudas Thool (2014)
          Mh.LJ 321.
3.        Kunju Kesavan v MM Philip AIR 1964 SC 164
4.        Sayeda Akhtar v. Abdul Ahad (2003)7 SCC 52
5.        Nedunuri Kameswaramma v Sampati Subba Rao AIR 1963
          SC 88
6.        Zarif Ahmad (Dead) through legal representatives & Anr. v
          Mohd Farooq (2015) 13 SCC 674
7.        Syed Shah Ghulam v. Syed Shah Ahmed (1971) 1 SCC 597
8.        Krishna Pillai v. Padmanabha Pillai (2004) 12 SCC 754
9.        Sirajudheen v Zeenath 2024 17 SCC 250