MANMOHAN ALBERT DAS Vs. ALBERT

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred by Defendant No.1 under Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 (for short 'the CPC') questioning the legality and propriety of the judgment dated 18.07.2012 passed by the 2nd Additional District Judge, Bilaspur in Civil Appeal No. 40-A/2011 whereby, the lower appellate Court, while reversing the judgment and decree dated 30.11.2010 passed by the 2nd Civil Judge, Class-1, Bilaspur in Civil Suit No.510-A/2005, has remanded the matter for its fresh trial.

(2.) Briefly stated, the facts of the case are that the Plaintiffs instituted a suit claiming declaration of title to the extent of half share of the house which is constructed over 3,372 sq.ft of land comprising out of Sheet No.16, Plot No.56 and 88/2 situated at Masanganj, Bilaspur and also with regard to the house constructed over 1,270 sq.ft of land along with its open space of Sheet No.23, Plot No.32 situated at Masanganj, Bilaspur. It is pleaded by the Plaintiffs that the suit property was owned by their grand father Samuel Das and during his life time, their father Adrew Charles Das predeceased to him and since they were minors at the time of the sad demise of their father, they were being looked after by their uncle Joseph Charles Das, who was father of Defendant No.1- Dr. Manmohan Albert, upon whom, they were completely Dependants. Further contention of the Plaintiffs is that said Joseph Charles Das, by taking undue advantage, had succeeded to get revenue papers mutated in his name alone and the act of him and his son Dr. Manmohan Albert is in detrimental to their interest, therefore, they have been constrained to institute the suit through their Power of Attorney holder namely Albert in the instant nature.

(3.) While contesting the suit, it is pleaded by Defendant No.1 that his father Joseph Charles Das and his three sisters were the only heirs of said Samuel Das and since the Plaintiffs were not his relatives, therefore, his claim is liable to be dismissed.