SUNEEL KUMAR Vs. GHANSHYAM

JUDGEMENT

(1.) This Miscellaneous Appeal under Sec. 43 Rule 1(u) of the Code of Civil Procedure, 1908, which shall be referred here-in-after as "CPC", has been filed against the judgment dtd. 05/02/2015 passed by II Adiditional District Judge, Gadarwara, District Narsinghpur (M.P.) in Regular Civil Appeal No.29-A/2014, whereby learned Appellate Court has interfered with the judgment and decree dtd. 31/10/2012 passed by IInd Civil Judge Class-II, Gadarwara, District Narsinghpur (M.P.) in Civil Suit No.58-A/2010 and remitted the matter back to the trial Court for retrial with certain directions under Order 41 Rule 23 of the CPC.

(2.) Brief facts of the case are that the appellant/plaintiff filed a Civil Suit against respondents for declaration of title and permanent injunction in respect of land bearing Khasra No.90/5 area 0.025 Aare, Patwari Halka No.18/1 situated at Mauja Gadarwara, Tahsil Gadarwara, District Narsinghpur (M.P.). Respondent No.1 / defendant No.1 has filed his written statement. Considering the pleadings of the parties, learned trial Court has framed the issues and after recording the evidence as adduced by the parties and after hearing the arguments of learned counsel for the parties, passed the judgment and decree dtd. 31/10/2012 in favour of appellant/plaintiff as title holder of the suit property and issued permanent injunction against respondent No.1 directing him not to create any interference in the suit property and shall not raise any construction on suit property. Being aggrieved with the judgment of trial Court respondent No.1/defendant No.1 filed an Appeal under Sec. 96 of the CPC before the Second Additional District Judge, Gadarwara, District Narsinghpur (M.P.), which was registered as Regular Civil Appeal No.29-A/2014 and was disposed of by the impugned judgment dtd. 05/02/2015 by remitting back the matter to the trial Court for fresh adjudication. Being aggrieved by the impugned judgment, this appeal has been filed.

(3.) Learned counsel for the appellant submitted that the impugned judgment is bad in law and perverse to the evidence and the other material substance gathered with the case. Learned Appellate Court has not applied proper application of mind in not going through the evidence and other material available on record. Learned Appellate Court has failed to take into consideration the pleadings made by appellant in the case. Learned Appellate Court has ignored the settled principle of law in remitting the case to the trial Court for fresh adjudication. Hence, prayed to set aside the impugned judgment and to affirm the judgment and decree passed by learned trial Court or send the matter back to the Appellate Court to decide the appeal on merit. In support of his arguments learned counsel placed reliance on the judgment in the case of Vipin Kumar and Others Vs. Sarojani, 2013 (1) MPLJ 480, judgment dtd. 07/03/2019 passed by coordinate Bench of this Court in M.A.No.3336/2017 (Ratanlal Chandani Vs. State of M.P. and Another) and order dtd. 18/12/2023 passed in M.A.No.2421/2017 (Akhilesh (Dead) through His Legal Representatives Vs. Smt. Madhuri and Others).