1 NAFR HIGH Court OF CHHATTISGARH AT BILASPUR SA No. 296 of 2003 1 - A Indradev And Ors. S/o Late Jamuna, Aged About 32 Years R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, Chhattisgarh 1.1 - Jugeshwar (Died) Through Lrs As Per Honble Court Order Dated 05-02- 2019 And 19-04-2024. 1.1.1 - A. Smt. Radho Bai Wd/o Late Jugeshwar Aged About 48 Years R/o Village Benipur, Tahsil - Balrampur-Ramanujganj, Chhattisgarh. 1.1.2 - B. Sanjay Ram S/o Late Jugeshwar Aged About 15 Years Minor Through Mother And Natural Guardian, Smt. Radho Bai Wd/o Late Jugeshwar, R/o Village Benipur, Tahsil - Balrampur-Ramanujganj, Chhattisgarh. 1.1.3 - C. Smt. Kanti Devi D/o Late Jugeshwar Aged About 21 Years R/o Village Benipur, Tahsil - Balrampur-Ramanujganj, Chhattisgarh. 1.2 - Shivcharan S/o Late Jamuna, Aged About 26 Years R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh 1.3 - Deleted Mst. Khirobai As Per Honble Court Order Dated 23.03.2017 2 - Janeshwar S/o Late Sitaram, Aged About 40 Years R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 3 - Jairam Dead Through Lrs 3.1 - Kariyo D/o Late Jairam, Aged About 36 Years R/o Village Benipur, Tahsil And P.S. Kusmi, District Balrampur, Ramanujganj, Chhattisgarh 3.2 - Dhanmani D/o Late Jairam, Aged About 36 Years R/o Village Benipur, Tahsil And P.S. Kusmi, District Balrampur, Ramanujganj, Chhattisgarh Digitally signed by NADIM MOHLE 2 4 - Ramnath S/o Tila, R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 5 - Darshan S/o Tila, R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 6 - Dhaneshwar S/o Vidhan, R/o Village Jiganiya, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 7 - Nevtu S/o Murga, R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 8 - Bandhan S/o Murga, R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 9 - Mohra S/o Murga, R/o Village Benipur, Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 10 - Mst. Jatri Wd/o Murga Now Dead ................Defendants, Chhattisgarh ... Appellants versus 1 - A Parsu And Ors. S/o Balur @ Balram, Aged About 38 Years Caste Kanwar, R/o Village Benipur, Tehsil Kusmi, District Surguja, Chhattisgarh, Chhattisgarh 1.1 - Birsay S/o Balur @ Balram, Aged About 15 Years Minor Through Natural Guardian Parsu S/o Balur, Caste Kanwar, R/o Village Benipur, Tehsil Kusmi, District Surguja, Chhattisgarh 1.2 - Deleted Mst. Dhurni As Per Honble Court Order Dated 23.03.2017 2 - Dandul Ram Dead Through Lrs. 2.1 - Biran S/o Late Dandul Ram Aged About 25 Years R/o Village- Benipur, Tahsil And P.S.- Kusmi, District- Balrampur-Ramanujganj, Chhattisgarh 2.2 - Chuira Ram S/o Late Dandul Ram Aged About 22 Years R/o Village- Benipur, Tahsil And P.S.- Kusmi, District- Balrampur-Ramanujganj, Chhattisgarh 3 - Ghurwa Ram (Died And Deleted) As Per Court Order Dated 29.10.2025, Throuth Lrs- 3 3.1 - Shivnath S/o Late Ghurwa Ram Aged About 30 Years R/o Village Benipur, Tahsil Kusmi, Distt. Balrampur-Ramanujganj, Chhattisgarh. 4 - Parmeshwar (Died And Deleted) As Per Court Order Dated 29.10.2025. 5 - Anjuram S/o Badi Kanwar, Aged About 34 Years R/o Village Benipur, P.S. And Tehsil Kusmi, Distt. Surguja, Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh 6 - The State Of Madhya Pradesh Now Chhattisgarh Through Collector, Surguja, Chhattisgarh ...............Proforma Defendant No.3, District : Surguja (Ambikapur), Chhattisgarh ... Respondent(s) For Appellants : Mr. Rishikant Mahobia, Advocate For Respondent(s) For State Date of Hearing Date of Judgment : : : : Mr. Rajnish Singh, Advocate Mr. Pramod Shrivastava, Deputy Government Advocate 14.11.2025 27.11.2025 Hon’ble Shri Justice Rakesh Mohan Pandey CAV JUDGMENT 1. The defendants No.1 to 10 have filed this appeal against judgment and decree passed by the learned IVth Additional District Judge, Ambikapur, Surguja in Civil Appeal No. 146A/2002 dated 31.03.2003, whereby appeal preferred by the plaintiffs was decreed and judgment passed by the learned Trial Court dated 01.04.2000 was set-aside. 2. This appeal was admitted for hearing vide Order dated 26.10.2017 on following substantial question of law :- “Whether the lower appellate Court has erred in entertaining appeal preferred under Section 96 of the CPC against order for return of plaint under Order 7 Rule 10 of the CPC?” 4 3. The original plaintiff Badi Kanwar filed a civil suit for declaration of title to the extent of ½ share of the property described in Schedule A of the plaint and also sought relief of partition and separate possession. Further relief was sought that sale deeds executed by late Baldev in favour of different individuals to be declared inoperative and not binding upon him and the order of partition passed in the revenue Case No. 17-A 27/84-85 dated 12.06.1985 be declared bad in law. 4. The original plaintiff pleaded that the suit property was joint property along with plaintiff and ancestors of defendant No. 1 & 2 namely Baldev Kanwar. 5. The plaintiff Baldev Kanwar had acquired suit property as joint property, as a settlement patta was issued in their joint names showing their right and title to the extent of ½ – ½ share. Baldev died in the year 1986 and after his death, the plaintiff came to know that 24.13 acre of land was sold by Baldev Kanwar to the defendants No. 4 to 11. The defendants pleaded that the plaintiff was servant of Baldev Kanwar & he was looking after his agriculture work but his name was entered in the settlement patta. They pleaded that the purchasers of the suit property are in possession and they have perfected their title by way of adverse possession. They also pleaded that 5 houses are built over the part of the suit property and value of those houses are near about Rs. 80,000, therefore, the trial Court has no pecuniary jurisdiction to try the suit. Further, on account of improper valuation and non-payment of requisite Court fee the suit is not maintainable. The trial Court framed 9 issues; parties led evidence and thereafter plaint was returned while deciding issue No.7 with regard to valuation of the suit. 6. Trial Court recorded specific finding that suit was not properly valued and it affect pecuniary jurisdiction of the Court, therefore, no decree can be passed and drawn the following decree:- “Okkn dk ewY;kadu mfpr :Ik ls ugh fd;k x;k gS] ewY;kadu ds vuqlkj bl U;k;ky; dks okn lquokbZ djus dk {ks+=kf/kdkj ugh gS blfy, okn esa dksbZ vkKfIr iznku fd;k tkuk mfpr ugh gksxk cfYd l{ke U;k;ky; esa is’k djus gsrq vkns’k 7 5 fu;e 10 ok0 iz0 la0 ds rgr okil fd;k tkuk mfpr gksxkA rn~uqlkj fuEufyf[kr vkKfIr iznku dh xbZ :- 1. oknh 7 fnu ds vanj okn okil izkIr dj l{ke U;k;ky; esa is’k dj ldsxk A vr% okn oknh dks okil fn;k tkos A 2. bl okn dk okn O;; oknhx.k viuk Lo;a ogu djsaxsA rFkk izfroknh x.k dk Hkh leLr okn O;; vnk djsaxsA” 7. The learned Trial Court invoking power contemplated under Order 7 Rule 10 of the CPC directed the plaintiff to present the plaint before the proper Court within a period of 7 days. The plaintiff filed regular appeal under Section 96 of the CPC before the Court of IV th Additional District Judge, Ambikapur, Surguja. The learned Appellate Court registered the appeal as Civil Appeal No.146A of 2002. The Court considered evidence led by the parties and decreed the suit. Against the said judgment & decree this appeal has been preferred. 8. Mr. Rishikant Mahobia, learned counsel appearing for the defendants would argue that the plaint was returned to the plaintiff according to the provision of Order 7 Rule 10 of the CPC & liberty was granted to the plaintiff to present the plaint before the proper Court. He would submit that the learned Appellate Court has committed jurisdictional error while entertaining regular appeal. He would submit that order passed by the learned trial Court was appellable according to the provision of Section 43(1)(a) of the CPC and the first appeal preferred under Section 96 of the CPC before the First Appellate Court was not maintainable at all. He would further submit that the issue involved in this matter goes to the root of the matter. He would submit that during the pendency of first appeal, plaintiff did not move any application for conversion of regular appeal to miscellaneous appeal. He has placed reliance on the judgment passed by the High Court of Bombay in the matter of Chandra Prem Shah and others v. K. Raheja Universal Pvt. Ltd. And another reported in 2015 SCC OnLine Bom 2484. 6 9. On the other hand, Mr. Rajnish Singh Baghel, learned counsel appearing for the legal representative of the original plaintiff would argue that the learned trial court decided each issue framed in the civil suit and passed judgment and decree. He would submit that against the judgment and decree passed in the civil suit, a regular appeal under Section 96 of CPC was preferred before the learned First Appellate Court, which was allowed, and the suit was decreed. It is contended that the issues framed by the trial court were adjudicated and the rights of the parties were decided on merits after appreciation of the evidence. The learned trial Court held that the plaintiff is not entitled to get half share of the suit property including possession. He would contend that the decree was passed according to the provisions of Section 2(2) of the CPC. He would submit that "decree" means the formal, conclusive expression of an adjudication that determines the rights of parties in a suit; therefore, the regular appeal preferred before the learned First Appellate Court was maintainable. He would further submit that the decree was drawn by the learned trial Court, therefore the regular appeal was preferred. He would also submit that according to Section 96 CPC, an appeal would lie from the original decree. 10. He would refer to Order 41 Rule 1 CPC, which deals with the form of appeal. It is argued that defendants No.1 to 5 preferred an appeal against the judgment and decree of the trial court in strict confirmity with Section 96 read with Order 41 Rule 1 of CPC, and such appeal was very much proper. 11. He has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Adi Narayan V. Adinarayan Chetti v. Kopparam Narasinha Chetti, (AIR 1931 Mad 471), wherein it was held that the order passed by a Court which conclusively determines the rights of the parties constitute a decree, against which an appeal lies. 7 12. He has also relied upon the judgment of the Hon’ble Supreme Court in the matter of S. Satnam Singh v. Surender Kaur (AIR 2009 SC 1089), wherein the Hon’ble Supreme Court discussed what order will constitute a decree and the test for its determination. The Hon’ble Supreme Court further held that to determine whether an order is a decree or not, consideration must be given to the pleadings and the proceedings leading up to the passing of the order. The circumstances in which the order was passed are also relevant. Further, for an order to be a decree, the following tests must be satisfied: “(i) There must be an adjudication; (ii)Such adjudication must have been given in a suit; (iii)It must have determine the rights of the parties regarding all or any of the matters in controversy in the suit; (iv) Such determination must be of a conclusive nature, and (v) must contain a clear expression of adjudication.” 13. He would further submit that mere mentioning of an incorrect provision is not fatal to the application, when power to pass order is available with the Court. He would submit that if the regular appeal was not maintainable before the learned First Appellate Court, the concerned Court should have treated the appeal as a miscellaneous appeal. In this regard, he relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Pruthvirajsinh Nodhubha Jadeja (D) By Lrs vs Jayeshkumar Chhakaddas Shah & Ors. (Civil Appeal No. 10521 of 2013), it was a case where instead of a first appeal, a miscellaneous appeal was preferred, and it was heard and decided by the proper Court. The Hon’ble Supreme Court has held that the appellate Court had not erred in exercising powers under Section 104 of the CPC. 14. Heard learned for the parties and perused the records. 8 15. The suit was filed by the original plaintiff and it was returned according to the provisions of Order 7 Rule 10 of the CPC after recording evidence and decree was also drawn, but the learned trial Court specifically observed that in absence of pecuniary jurisdiction, the suit is not maintainable and same is being returned according to the provision of Order 7 Rule 10 of the CPC and learned Trial Court granted 7 days time to the plaintiff to present plaint before the proper Court. 16. The Order 7 Rule 10 of the CPC deals with return of plaint and same is reproduced hereinbelow: “Order VII Rule 10 & 10A — Return of Plaint 10. Return of plaint.— “(1) Subject to the provisions of Rule 10A, the plaint shall, at any stage of the suit, be returned to be presented to the Court in which the suit should have been instituted. Explanation.— For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit, the return of the plaint under this sub-rule. (2) Procedure on returning plaint.—On returning a plaint, the Judge shall endorse thereon the date of its presentation and return, the name of the party presenting it, and a brief statement of the reasons for returning it.” “10A. Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return.— “(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. (2) Where an intimation is given to the plaintiff under sub- rule (1), the plaintiff may make an application to the Court — (a) specifying the Court in which he proposes to present the plaint after its return, (b) praying that the Court may fix a date for the appearance of the parties in the said Court, and 9 (c) requesting that notice of the date so fixed may be given to him and to the defendant. (3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made on the ground of lack of jurisdiction— (a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and (b) give to the plaintiff and the defendant notice of such date. (4) Where notice of the date for appearance is given under sub-rule (3)— (a) it shall not be necessary for the Court in which the plaint is presented after return to serve the defendant with a summons for appearance, unless that Court, for reasons recorded, otherwise directs; and (b) such notice shall be deemed to be a summons for appearance of the defendant in the Court in which the plaint is presented on the date so fixed. (5) Where the application made by the plaintiff under sub- rule (2) is allowed, the plaintiff shall not be entitled to appeal against the order returning the plaint.” 17. A bare reading of the above-quoted provisions makes it clear that when a Court lacks jurisdiction to try a suit, it cannot decide the case on merits but must return the plaint for presentation before the proper Court. The power to return the plaint is exercised when the Court finds that it does not possess territorial, pecuniary or subject-matter jurisdiction. The Court may return the plaint at any stage of the suit. While doing so, it must endorse specific details, including the date of presentation, the date of return, the name of the party presenting it, and the reasons for such return. Order 7 Rule 10A CPC empowers the Court, after intimating the plaintiff, to fix a date for the appearance of the parties before the Court in which the plaint is to be re-filed. The plaintiff may apply to the Court specifying the Court before which he proposes to present the plaint and request that a date of appearance be fixed and that notice of such date be given to both parties. 10 18.Learned trial Court had granted 7 days time to the plaintiff to present plaint before the proper Court, but no application under Order 7 Rule 10 A of the CPC was moved rather an appeal was preferred under Section 96 of the CPC before the first appellate Court. 19. Order 43 Rule 1(A) of the CPC provides that an order under Rule 10 of Order 7 of CPC returning a plaint to be presented to the proper Court [except where the procedure specified in rule 10A of Order 7 of the CPC has been followed]. 20. The High Court of Bombay in the matter of Chandra Prem Shah (supra), while dealing with the issue involved in this matter held in paras 3, 25 & 26 as under :- “3. The order of return of plaint under Order VII Rule 10 of the Code, if passed then not a First Appeal under Order XLI, but an Appeal against Order under Order XLIII is to be filed. Return of plaint is not a decree though reasons in brief are required to be recorded in the said order. 25.However, in the present case, the Court has rightly come to the conclusion to return the plaint as it lacks jurisdiction due to the nature of the suit and, therefore, though he has settled the issue under Order XIV Rule 2 of the Code of Civil Procedure by virtue of the wide powers given to the Court, the Court has rightly returned the suit for presentation before the cooperative Court. It would not be out of place to mention that in the case of Prabhakar Bhat (Supra), the Full Bench has held that "The Court had to aid rather than obstruct the plaintiff." Therefore, taking into account this guiding principle if the plaint is rejected then, it will amount to dismissal of the suit amounting to decree and the plaintiff will face hardship as he has to go in the appeal, he will not get any return of the Court fees and on the other hand, if the plaint is returned he would not be a loser as the correct forum is made available. 26. Thus, I hold that the order of return of the plaint passed by the learned trial Judge is correct and legal and, hence, the present appeal against order under Order XLIII of the Code of Civil Procedure is maintainable.” 11 21. In the present case, the judgment passed by the learned Trial Court would reveal that the plaint was returned in accordance with the provisions of Order VII Rule 10 of the CPC, and the procedure prescribed therein was duly followed, but instead of filing an appeal under Order 43 Rule 1(a) of the CPC, against an order returning a plaint, the plaintiff filed a regular First Appeal under Section 96 of the CPC, which was not maintainable. The plaintiff was fully aware of the provisions of Order 7 Rule 10 of the CPC but deliberately preferred an appeal under Section 96 of the CPC; thus, there was no occasion for the appellate Court to treat the said appeal as a miscellaneous appeal, particularly when the judgment of the Trial Court was challenged on merits. 22. The learned trial Court considered the pleadings and evidence of the parties and finally returned the plaint according to the provisions of Order 7 Rule 10 of CPC and further granted seven days’ time to the plaintiff to approach the proper Court. However, no application was moved before the learned trial Court to comply with Order 7 Rule 10A CPC, therefore, the contention made by Mr. Rajnish Singh Baghel, Advocate, that the learned trial Court passed a judgment and decree & decided the suit on merits, appears to be erroneous. 23. In the matter of S. Satnam Singh (supra), the Hon’ble Supreme Court has held that an order passed by the Court is a decree only when the Court determines the rights of the parties regarding all or any of the matters in controversy in the suit, and such determination is of conclusive nature, and there is a clear expression of adjudication. In the present case, the court did not determine the rights of the parties, and no formal clear expression of such adjudication was given; rather, in the operative portion of the judgment & decree, the plaint was returned according to the Order 7 Rule 10 of the CPC. 12 24. According to provisions of Section 96 and Order 41 of the CPC, an appeal lies against an original decree. There was no decree against the plaintiff determining the rights between the parties; therefore, there was no occasion for the plaintiff to prefer a regular appeal. There is a specific provision to prefer a miscellaneous appeal under Order 43 Rule 1 (a) of CPC and no attempt was made by the plaintiff before the learned Ist Appellate Court to treat his regular appeal as a miscellaneous appeal, therefore, the contention made by Mr. Singh appears to be misconceived. 25. Present is not a case, where the the plaintiff mentioned the incorrect provision of law by mistake; rather, it is a case where regular first appeal was deliberately preferred under Section 96 of CPC before the proper Court. 26. In the matter of Pruthvirajsinh Nodhubha Jadeja (D)(supra), the proper Court decided a miscellaneous appeal instead of a first appeal, and therefore, Hon’ble Supreme Court held that the learned Appellate Court has not erred in exercising power under Section 104 of CPC, but in the present case, the first appeal was preferred according to Section 96 of the CPC and the learned First Appellate Court exercised powers conferred under Section 96 and Order 41 of CPC and decreed the suit; thus, the facts of the cited case are different from the present case. 27. The substantial question of law is answered in favour of the appellants herein & against the plaintiffs. The judgment & decree passed by learned I st Appellate Court is hereby set-aside. Accordingly, the appeal is allowed. 28. A decree be drawn accordingly. Sd/- Rakesh Mohan Pandey JUDGE Nadim