MEENA RAM Vs. AMOLAK RAM

JUDGEMENT

(1.) This application under Article 133 of the Constitution arises oat of an order made by a Division Bench of this Court in a first appeal from decree whereby the preliminary decree passed by the trial Court in favour of the present applicant was set aside and the case was remanded to the trial Court for fresh decision on some of the issues which according to the learned Judges hearing the appeal had not been correctly decided by it. While remanding the case the learned Judges observed that it would be open to the trial Court to construe the pleadings for the purpose of determining the pleas raised by the respective parties or to allow any amendment in the pleadings if prayed for or to take fresh evidence.

(2.) The applicant who was plaintiff in the suit had come to Court on the allegations that his father Sadh Ram had died in the year 1932 leaving behind three sons, namely, Amolak Ram (defendant No. 1), Mina Ram plaintiff) and Moti Ram who was their step-brother. Sadh Ram left certain properties which devolved on the three brothers. The plaintiff alleged that on the death of their father Sadh Ram there was a partial partition in the family where under Moti Ram the step-brother separated but he and Amolak Ram continued to remain joint. He further claimed that the various properties set out in the plaint belonged to the joint family consisting of him selft and his brother Amolak Ram, that all acquisitions were made with the nucleus provided by the joint family funds and with the aid of income derived from the joint family properties and that therefore all those properties belonged to the joint family. Although that was principally the case set up by the plaintiff, at the stage of arguments in appeal learned counsel appearing for the plaintiff submitted tliat in the plaint there was a clear averment about certain properties belonging to the plaintiff and Amolak Ram as coowners but the trial Court had not gone into that question as it had accepted the plaintiff's case that the entire property was joint family property. Learned Judges came to the conclusion that there was a disruption of the joint family in 1933 and a complete partition between the three brothers. But since the alternative case from the plaintiff and Amolak Ram being co-owners of the properties had not been gone into by the trial Court the learned Judges allowed the appeal, set aside the judgment and decree of the trial Court and sent the case back for fresh decision on issues 5,6,7 and 8 which appeard to them to have been wrongly decided.

(3.) The plaintiff submits that the order which he characterizes as a final judgment reverses the decision of the Court below and the value of the subject-matter of dispute in the Court of first instance and still in dispute in appeal was and is not less than twenty thousand rupees, he is entitled to appeal to the Supreme Court as of right under Article 133 (1) (a) of the Constitution. He also submits that the case involves important question of law.