SUBEDAR Vs. RAM KUNWARI

JUDGEMENT

(1.) A suit was brought by the Plaintiff -Respondent with the allegation that the sale deed in dispute purporting to have been executed in the name of the Plaintiff was obtained by false impersonation and was as such void. The trial Court, by its order dated 17 -12 -1980 held that the suit was not cognizable by the Civil Courts and thus directed the return of the plaint for presentation to the proper Court.

(2.) WHEN an appeal was filed, the lower appellate Court was of the view that on the plaint allegations, it was obvious that the revenue Court would not be competent to grant the relief of cancellation of the sale deed and no relief in respect of the said sale -deed could be granted by those Courts. It, therefore, held that in view of Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, the jurisdiction of the Civil Courts was not barred. Accordingly the appeal was allowed and the case was sent down to the trial Court for trial. Against this order, the present FAFO has been filed purporting to be one under Order 43 Rule 1(u) Code of Civil Procedure treating the order passed by the lower appellate Court as one of remand.

(3.) THERE appears to be sufficient force in this submission. An order of remand contemplated under Order 43 Rule 1(u) Code of Civil Procedure is one that is passed by the Court in appeal against the decree under Rule 23 or 23A of Order 41 of the Code of Civil Procedure and the relevant provision reads as under: