POORNODAYA Vs. SHIVKANT

JUDGEMENT

(1.) Present miscellaneous appeal has been filed under Order 43 Rule 1(u) of CPC against judgment and decree dtd. 1/8/2011 passed in RCA No.60-A/06, whereby, judgment and decree passed by trial Court on 24/12/2005 in RCS No.8-A/2004 has been set aside and case has been remanded back to trial Court on the grounds mentioned in para-11 of impugned judgment.

(2.) Learned counsel for appellants, after referring to para-9, 10 and 11 of impugned judgment, submits that First Appellate Court has wrongly set aside judgment and decree passed by trial Court and has wrongly remanded back case to trial Court for recording of evidence etc. It is also urged that in 1998, original plaintiff Balkishan expired. At the time of death of Balkishan, evidence of plaintiff was over and case was fixed for defendant evidence. After death of Balkishan, plaintiff Shivkant was brought on record on the basis of Will executed by Balkishan and plaintiff Bhagwandas was brought on record on the ground that he is adopted son of Balkishan. It is also urged that after Shivkant and Bhagwandas were added as plaintiffs, they never filed any application for affording an opportunity for adducing evidence. On above grounds, it is urged that First Appellate Court has wrongly set aside trial Court's judgment and decree and remitted case back to trial Court for recording of evidence etc. Hence, appeal be allowed and impugned judgment and decree be set aside.

(3.) I have heard learned counsel for the appellants and perused the record of the case.