JANI BAI Vs. RAMKRISHNA

JUDGEMENT

(1.) THIS Misc. Appeal, under Section 104 read with Order 43 Rule 1 (V) of the Code of Civil Procedure (hereinafter referred to as ' C.P.C.' for short), has been preferred by the appellants against the order dated 14.3.2005 passed by Additional District Judge, Multai, District Betul in Civil Appeal No.4-A/04, in which the case has been remanded back after setting aside the judgment and decree dated 23.1.2004 passed by Civil Judge, Class-I Multai, District Betul in regular Civil Suit No.168- A/94 whereby counter case was also dismissed and the matter was remanded back for afresh trial and decision.

(2.) THERE was no dispute that respondent/plaintiff Ramkrishan is son of late Mahadeo through his first wife Saraswati Bai (since dead) and appellant No.2 to 6 are issues of Mahadeo through his second wife appellant No.1 Jani Bai. She remained in possession of the house of ancestor property of Mahadeo.

(3.) LEARNED trial Court on 23.1.2004 dismissed the suit of plaintiff on the ground that though the appellants are entitled to get share but the suit was not brought for partition hence the case was not maintainable. As far as, will about Khasra No. 424, total area 1.157 hectare, out of which, 0.656 hectare is given to Meera Bai through will. Hence the suit was time barred as suit was not brought within three years from the date of enforcement of the will. The suit was dismissed and counter claim of Meera Bai was allowed and she was declared owner as per will. The suit as well as counter claim of respondent/plaintiff was dismissed against which this appeal was preferred which was registered as Civil Appeal No.4-A/04 and dismissed on 14.3.2005 by Additional District Judge,Multai district Betul by setting aside the judgment and decree of trial Court dated 23.1.2004 and remanded the case for retrial to the trial Court against which this appeal has been preferred on the ground that learned appellate court was erred in remanding the case and did not care that about more than 19 years have already passed from the institution of the suit. LEARNED appellate court failed to take into account that nothing was left over and no afresh evidence was ever required as full evidence has been produced by both sides. It ought to have been decided by the appellate Court and it failed to decide its vested jurisdiction according to the provision of Section 107(2) of CPC which empowered the appellate Court to exercise same duties which are conferred and imposed on the trial Court by the C.P.C. Had this provision been taken into consideration, the first appellate Court could have decided the matter either this way or that way instead remanding the case causing there by prejudice to the appellants/defendants as well as miscarriage of justice. There was no need of setting aside the judgment and decree of trial Court and there was no ground of sending back the case for refresh trial and deciding the case.