VASANT BHASKAR THAKUR Vs. SITARAM WAMAN THAKUR

JUDGEMENT

(1.) Admit. With the consent of the learned counsel for the parties, the appeal is taken up for hearing forthwith.

(2.) Power of an Appellate Court to remand a suit for retrial under Order 41 Rule 23A of the Code of Civil Procedure 1908 is an issue that has attracted attention of this Court in the present appeal. The issue arises in the light of Appellant's challenge to the judgment and order dtd. 22/3/2022 passed by the District Judge, Raigad by which the judgment and decree dtd. 22/4/2017 passed by the Joint Civil Judge Junior Division, Alibaug in Regular Civil Suit No.147/2011 is set aside and the suit is remanded for fresh hearing after adding necessary parties and after framing additional issues.

(3.) For better understanding of the controversy involved, narration of few basic facts of the case would be necessary. Appellant-Plaintiff has pleaded in his plaint that various properties were jointly owned and possessed by Waman Nathu Thakur and Bhaskar Rama Thakur. There was an oral partition on 1/6/1950 between the duo in accordance with which, Mutation Entry No. 1187 was effected. Land bearing Survey No.100 at Village-Saral, Taluka-Alibaug, District-Raigad was subject matter of partition. In accordance with the partition, the land bearing old Survey No.100/3/A was allotted to the share of Waman Nathu Thakur effecting Mutation Entry No. 2090 on 15/8/1975, whereas the land bearing Survey No.100/3/B was allotted to the share of Bhaskar Rama Thakur. It appears that the said land bearing Survey No.100 falling in Village-Saral became part of Village-Mathroli and was given Survey No.9 in the year 1975. Accordingly, land bearing old Survey No.100/3/A falling to the share of Waman Nathu Thakur was re-numbered as Survey No. 9/3/A whereas land bearing old Survey No.100/3/B falling in the share of Bhaskar Rama Thakur was re-numbered as Survey No.9/3/B. Plaintiff further pleaded that after implementation of the Consolidation Scheme, the land bearing Survey No.9/3/B was given Gat No.36, whereas land bearing Survey No.9/3/A was given Gat No.34.