MAHENDRA YADAV Vs. OM PRAKASH

JUDGEMENT

(1.) -This is plaintiff's appeal under Order XLIII, Rule 1 (u), C.P.C. against the order dated 2.2.2005, passed by the Additional District Judge, Court No. 16, Deoria in Civil Appeal No. 14 of 1998 whereby it allowed the appeal and set aside the judgment and decree dated 27.11.1997, passed by the Court below and remanded the matter for decision of the suit on merits after giving opportunities to the parties to file evidence.

(2.) THE plaintiff, Mahendra Yadav, instituted Suit No. 306 of 1997 against Om Prakash on the allegations that the defendant is living all alone and has been looked after by the plaintiff. He was in need of Rs. 1 lakh in the month of June, 1988, which was advanced by the plaintiff on the understanding that in lieu of money the house of the defendant stood sold. It was also understood that if the aforesaid sum of Rs. 1 lakh is not returned within a period of five years, there would be a sale deed in pursuance of the understanding arrived at between the parties in the month of June, 1988. THE defendant has failed to return the money within the aforesaid period and has executed a registered Will deed dated 25.1.1995 in his favour on the assurance that there would be no further demand for refund of money from the plaintiff. In this regard on 5.4.1996, a Yaddast was also written by the defendant. THE plaintiff is in possession of the house, which belongs to the defendant and filed the suit for injunction that the defendant be restrained permanently from transferring, alienating or interfering in the possession of the plaintiff over the disputed house. A relief for declaration was also sought for that in view of the Yaddast dated 5.4.1996, executed by the defendant, the defendant ceased to have any right, title or interest in the said house.

(3.) THE court below by the order under appeal has allowed the appeal and remanded the matter to the trial court for fresh consideration in the light of the observations made in the judgment.