PARVESH CHAND BAGGA Vs. NAND LAL BAGGA

JUDGEMENT

(1.) Present appeal has been preferred by the appellant against the judgment and order dated 09.02.2009 passed by District Judge, Almora in Civil Appeal no.23 of 2007, whereby the first appellate court allowed the appeal filed by the plaintiff/respondent and remanded the matter to the trial court for a fresh decision.

(2.) Brief facts of the case are that plaintiff/respondent filed a suit being Civil Suit No.17 of 2005 in the Court of Civil Judge, Senior Division, Almora against the appellant/defendant for recovery of a sum of Rs. 3,25,000/-, stating therein that the plaintiff and defendant are real brothers. There is a joint house of the plaintiff and defendant which was purchased by their father Late Gopal Singh Bagga. On 20.01.2002, a family partition took place between the parties with mutual consent in which shops came into the share of the plaintiff, and it was decided that in lieu thereof, the plaintiff will pay a sum of Rs. 4,00,000/- to the defendant. The plaintiff also agreed for the same and accordingly paid Rs. 3,00,000/- cash on 23.05.2002. On 10.08.2001, Rs. 25,000/- had already been paid by him by way of cheque. But, thereafter the defendant turned dishonest and during mutation proceedings before the Municipal Board, filed an objection. Therefore, the suit for recovery of advance money was filed. The defendant contested the suit and filed written statement. In the written statement, the defendant denied the plaint averments and stated that the amount claimed by the plaintiff has been returned to him. On the pleading of parties, the learned trial court formulated the following issues:

(3.) Both the parties led oral as well as documentary evidence. After recording the evidence and hearing both the parties, the trial court, vide judgment and decree dated 14.08.2007, dismissed the suit of the plaintiff. Feeling aggrieved, the plaintiff preferred an appeal before District Judge, Almora, which was registered as Civil Appeal No.23 of 2007. Learned District Judge, vide judgment and order dated 09.02.2009, allowed the appeal and remanded the matter to the trial court for fresh decision in the light of observations made in the judgment.