AAUBAI Vs. FULABAI SIDAGOUDA PATIL

JUDGEMENT

(1.) THIS is an appeal filed under Order 43 Rule 1(u) of CPC challenging the order passed by the Presiding Officer, Fast Track Court -I, Chikodi dated 16.6.2006. O.S.No.88/86 pending on the file of Civil Judge (Sr.Dn.), Chikodi was filed by one Aubai for partition and separate possession of the suit schedule property. During the pendency of the said suit, she died and Sadashiv Kallappa Magadum was brought on record as her legal representative based on the order passed on I.A.7 dated 22.1.1993. Ultimately, the said suit came to be decreed declaring the plaintiffs as owners of the suit schedule property to an extent of half share which Aubai was entitled by virtue of the Will executed by her in favour of Sadashiv Kallappa Magadum on 25.7.1986 vide Ex.P.13. The said judgment and decree came to be called in question before the Court of District Judge, Belgaum by defendants 3 and 4 of the said suit. The same was withdrawn and transferred to the Court of Fast Track Court -I, Chikodi and numbered as R.A.No.104/04. The learned Judge of First Appellate Court has allowed the appeal and thereby remanded the matter bearing O.S.No.88/86 to the court of Civil Judge (Sr.Dn.), Chikodi for fresh disposal in accordance with law and also making it clear that plaintiff NO.1A Sadashiv Kallappa Magadum is advised to file a suit to get a declaration that he is legatee under the Will executed by Avubai in his favour bequeathing her share in the property and till such time O.S.No.88/86 to be kept pending. It is this order dated 16.6.2006 passed in R.A.No.104/2004, which is called in question urging various grounds in the appeal memo.

(2.) MY learned Predecessor has framed the following substantial question of law on 20.2.2006 for consideration:

(3.) LEARNED counsel appearing for the parties have submitted their arguments at length.