LEELADHAR AND OTHERS Vs. BHUWANLAL AND OTHERS

JUDGEMENT

(1.) This Miscellaneous Appeal has been preferred against the judgement dated 13.9.2010 passed by First Additional District Judge, Mahasamund (C.G.) in Civil Suit No. 35-A/2008 by setting aside the impugned judgement and decree of the Trial Court and passing order for remand of the case with direction for re-trial.

(2.) The appellants filed a civil suit for relief of declaration that appellants/plaintiffs and defendant No. 1 are joint holders of the disputed property as detailed in Schedule A, B, C and D and also for relief of declaration about joint possession of the property along with relief of mesne property. Respondents/defendants denied and opposed the pleadings made in the plaint and prayed for dismissal of suit. After framing the issues, the trial was conducted by the Trial Court by affording opportunities to both the parties for adducing evidence. On conclusion of trial, judgement dated 30.4.2008 was passed by which judgement and decree was passed in favour of the appellants/plaintiffs granting them reliefs of declaration for title and possession.

(3.) The judgement and decree of learned Trial Court was challenged before the Court of District Judge, which has been decided by the impugned order. In this order, it was observed that order for ex parte proceeding was passed against respondent No. 1. Later on, minor respondents No. 3 and 4 were represented and a written statement was present on their behalf. The contents of the written statement disclosed that it was in reality pleading for defence of respondent No. 1 and also that the witnesses who appeared have supported the case of respondent No. 1. A finding has been given that under the garb of defence of respondents No. 3 and 4, defence in favour of respondent No. 1 was raised in proxy, which was held illegal, hence, the judgement and decree was set aside and the case was remanded for trial.