PALSAI Vs. GIRVAR

JUDGEMENT

(1.) THIS appeal has been directed against the judgment and decree dated 24-01-2005 passed by the first Additional District Judge, Ambikapur, District Surguja, in Civil Appeal No. 25-A/2003 whereby the judgment and decree passed by the trial Court has been set aside and the case has been remanded to the trial Court.

(2.) THE Respondent/Plaintiff filed a suit for declaration and permanent injunction, averring that, at the time of settlement the suit land was settled and recorded in the name of Jagansai, who remained in possession of the suit land till his death. After his death, Respondent/Plaintiffs being the heirs of Jagansai were recorded title holders in the record of rights and are in possession of the suit land. Very often, they used to provide the suit land to the Appellants for their livelihood. THE Appellants taking advantage of that, got their names recorded in revenue records along with the names of Respondents No. 1 to 6 and filed an application for partition before Tahsildar, Sitapur. Respondents/Plaintiffs raised the question of title, as a result thereof, the Revenue Court stayed its proceeding and thereafter Respondents/ Plaintiffs to establish their rights filed civil suit. THE Appellants/Defendants denied the claim of Respondents/Plaintiffs. THEy pleaded that the suit is time barred. THE suit land was joint family property. In the year 1962, a partition took place and since then they are in possession of the suit land which came in their share.

(3.) LEARNED First Appellant Court, after hearing both the parties and taking into consideration the pleadings of both the parties, held that for deciding the amendment application it is necessary to provide opportunity to both the parties to adduce their evidence. Therefore, with various directions, remanded the suit to the trial Court. The trial Court, without affording opportunity to the parties to adduce their evidence, vide order dated 02-09-1993 decided the amendment application. By that order, learned trial Court held that the amendment application whereby restoration of possession has been sought is barred under Article 65 of the Limitation Act, therefore, dismissed the application. On the same day, learned trial Court dismissed the suit holding that the suit is time barred vide its judgment and decree dated 02-09-1993. Being aggrieved with that judgment and decree, the Plaintiff/Appellants filed an appeal which has been registered as Civil Appeal No. 25-A/03. LEARNED First Additional District Judge Ambikapur after hearing both the parties held that the judgment and decree passed by the trial Court, as well the order passed by the trial Court on amendment application and on application for admission of documents is erroneous therefore, remanded the suit vide impugned judgment and decree with a direction that for consideration of amendment application both the parties should be allowed to adduce evidence and thereafter in accordance with earlier remand order the suit shall be disposed of.