KANCHHEDI Vs. NANHIBAHU

JUDGEMENT

(1.) THIS miscellaneous appeal is by the defendant against order of remand dated 2/8/1985 passed by the District Judge, Sagar, whereby reversing the judgment and decree passed by the Civil Judge, Class II Khurai, wherein it was held that the suit was barred by limitation and could not he proceeded against the defendant.

(2.) .On appeal being preferred by the respondent/plaintiff, the lower appellate Court reversed the judgment and decree passed by the trial Court remanding the case for trial of all the issues on recording evidence and also with a direction to frame additional issues on the averments made by the parties. The only point raised before this Court by the appellant is that the suit could not proceed being barred by limitation under Article 58 of the Limitation Act. As such, the first appellate Court erred in law in setting aside the judgment and decree passed by the trial Court by remanding the case for the trial of the suit. From the suit allegations, it is clear that the suit, as framed by the plaintiff, is a suit for partition. The declaration is only a consequence of the suit. The plaintiff/respondent stated in para 3 of her plaint that she was entitled to half share in the family property owned by her husband Mohanlal which fell to the plaintiff and the defendant both after the death of Mohanlal and was, as such, entitled to its half share. Her right in the property, according to the suit allegations was never denied. It was only the half share which was refused by the defendant to be given to her. The plaintiff/respondent has claimed the partition with the prayer that she be declared entitled to half share of the disputed property. The cause of action as shown by the plaintiff arose in the month of July 1982 when, after serving a legal notice, she was denied her right and the suit was filed on 31.8.1992. Therefore, the suit could not even be said to be barred under Article 58 of the Limitation Act. The learned first appellate Court has rightly found the suit to be within limitation and I do not find any illegality or perversity in the order of remand passed by the learned lower appellate Court. The issue as framed about the limitation requires evidence and further the averments of the parties are not covered by the issues as framed by the trial Court. Therefore, the trial Court has rightly been directed to frame additional issues on the averments of the parties and to decide the suit after recording evidence of both the parties.